Making the Tough Call

Legislative leaders in Massachusetts tried to call the bluff of that state’s Supreme Judicial Court, which in November gave them 180 days to conform the law to its ruling that same-sex couples cannot be excluded from the institution of civil marriage. Thankfully, the Court didn’t blink.

The Democrats who control both houses of the legislature faced what they viewed as an unpalatable choice in the wake of the November ruling. They were opposed to the same-sex marriage mandate, but reluctant to start the cumbersome process of amending the state constitution to overrule the court. Action is required by two successive sessions of the legislature and a voter referendum cannot be scheduled until at least November 2006, two and half years after the ruling is scheduled to take effect.

Hoping to employ the civil union finesse pioneered by the Vermont legislature facing a similar order in 2000, the Massachusetts Senate sought an advisory opinion from the state’s high court as to whether this solution would cut the muster there.

Legal analysts generally agreed that the November ruling left no room for wiggle, but many also noted that courts are not immune from political pressures. The state legislature was actively considering a constitutional amendment already endorsed by Republican Governor Mitt Romney, and the question moved front and center nationally when President George W. Bush used one of the 53 minutes in his State of the Union address to denounce activist judges and implicitly link them to a variety of odious risks facing American youth.

The court did itself proud this week, affirming its original ruling with the same 4-3 majority. “The history of our nation has demonstrated that separate is seldom, if ever, equal,” Chief Justice Margaret Marshall wrote in her opinion.

Marty Rouse, the campaign coordinator at MassEquality, the group formed to protect the November ruling, fielded many congratulatory phone calls the day of the latest court opinion, but was not pausing to celebrate. Next week, the state legislature will consider whether to move forward with the amendment process.

Rouse made no predictions, but noted that his group is working furiously on a media campaign to block a vote to move an amendment forward.

There are only six days to go before the scheduled vote, and funds are desperately needed to support the effort. Visit massequality.org to do what you can.

The political question on the table is whether the Democratic Party in Massachusetts can demonstrate the same courage exhibited by the Supreme Judicial Court’s majority. During the past week, the state party formally endorsed the marriage ruling, but as with a similar recent pro-marriage resolution adopted by the state party in New York, the progress seems to have come about without the concurrence of key state leaders. How the legislature’s Democratic leadership, largely on record against same-sex marriage, will act on February 11 remains an open question.

The posture of the state’s suddenly high profile junior U.S. senator, John Kerry, is also ambiguous. One of the few to stand up to the Defense of Marriage Act in 1996, he is nevertheless opposed to same-sex marriage and to the efforts at a federal marriage amendment. Whether he has the political fortitude to also stand up to constitutional tinkering in his home state will be of great interest to the many gay and lesbian visitors likely to turn up in Boston this summer.

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