Voters Have Right to Decide Marriage Amendment, Says SJC

Ruling Will Affect Wednesday's Constitutional Convention

MassNews Staff
June 14, 2002

The opponents of the Protection of Marriage Amendment were turned down yesterday by the Supreme Judicial Court.

"This is great news," said Sarah McVay Pawlick, President of Mass. Citizens for Marriage.

"It will be very difficult for any state Senator or Rep to say next Wednesday at the Constitutional Convention that this measure should not be sent on to the people for their vote as they have demanded."

The case involved an appeal brought by the opponents of the Amendment concerning Attorney General Tom Reilly's ruling from last August that the Amendment is an appropriate measure to be decided by the voters at the election in 2004.

Reilly's ruling was upheld yesterday by the high court in a 7-0 decision.

The only obstacle which now exists to the measure going before the voters in 2004 is the possibility that Sen. President Tom Birmingham will throw the petitions of the 76,607
signers into the trash can next Wednesday, June 19. That is when he has scheduled a Constitutional Convention at the State House for a vote on sending it to the voters.

(Although over 130,000 persons signed the Petition last fall, many were discarded because they signed on a sheet for the wrong town, because the town clerk could not read the signature or similar problems.)

Sen. Birmingham is now the person who is under great pressure. He has even been publicly urged by the Boston Globe, which is against the Amendment, to illegally bottle it in committee or play some other dirty trick. But many people believe that Birmingham will follow the law of the state Constitution and send it to the people.

Even before the Attorney General held last August that the Amendment was proper for the voters to decide, the opponents were very angry. Their sentiments were expressed by Jeff Epperly, the editor of Bay Windows. "If Reilly sells us out, it will come back to haunt him. I know I will never let him forget it."

Arline Isaacson, the lobbyist for GLAD which took the appeal to the SJC, said last fall that Reilly, who has historically been an advocate of gay civil rights, was caving in to right-wing pressure. "It's unacceptable and it's unforgivable. The stakes are way too high on this ... way too high."

They filed the appeal from the Attorney General's ruling last October.

SJC Agrees with Reilly

The court made it clear that it was deciding the case on its own as though the Attorney General had never decided it. "We review the Attorney General's certification de novo," it said.

The opponents claimed that the Amendment attempts to tamper with the powers of the courts, but the court quickly dismissed that argument, saying the Amendment "is not a change in the power of the courts to decide and enforce their decisions."

It was also challenged that the Amendment limited the court's "jurisdiction" to hear certain marriage cases, but the court also rejected this argument." It does not remove the courts' power to hear marriage, divorce, recognition, and validation actions when the parties are same-sex couples. It merely sets forward a substantive rule that the court must apply in individual cases."

The opponents also claimed that the Amendment should not go to the voters because under the state Constitution, it must contain subjects "which are related or which are mutually dependent." But the judges quickly rejected that argument.

In conclusion, the judges wrote, "We remand the case to the county court for entry of a declaration that the Attorney General's certification of the petition complies with the requirements of art. 48. So ordered."