Why Sen. Birmingham is Totally Wrong on Marriage

This four-page pamphlet has been distributed to every Legislator on Beacon Hill. It quickly sets forth why every honorable person will vote to let the people decide the Marriage Amendment as required by state law.

The Vermont Supreme Court was very candid when it ruled in 1999 that their state Constitution required the legislature to enact either "gay marriage" or "civil unions."

The Court freely admitted they had no idea what the long-term ramifications of their decision would be.

The Attorney General of Vermont had argued that a sudden change in the traditional unit of society that had existed for thousands of years and had always been the foundation of Vermont society would cause a destabilization of their society.

The judges responded that the Attorney General could be right. It wrote in its decision that they might be causing "disruptive and unforeseen consequences" to their society.

The full text of their statement was, "Further, while the State's prediction of 'destabilization' cannot be a ground for denying relief [for the homosexual plaintiffs who had brought the suit], it is not altogether irrelevant. A sudden change in the marriage laws or the statutory benefits traditionally incidental to marriage may have disruptive and unforeseen consequences."

Untested Area for Massachusetts

No one denies that the desire of some to change the institution of marriage is an untested experiment for our society everywhere, not only in Vermont and Massachusetts but in the entire country.

The people of Massachusetts have indicated with passion that because of the complicated ramifications that will certainly occur if any change is imposed in our state, they want to be the ones to make the decision. They have a strong desire to be fair to all the citizens, but they have no desire to be a test case for the entire country in this area of sociology.

They wish a full and complete discussion of any change.

They understand this is not really a legal issue although many lawyers, as with many other issues, feel uniquely qualified to make the decision. To the contrary, the citizens understand this is a sociological and moral issue and not a legal one. The question is how do we best raise our children?

It is reminiscent of Winston Churchill's famous statement that democracy may be the worst form of government, but it is the best that we have. Marriage is under attack today from many directions, but most citizens still believe it remains as the best way we have ever devised to raise children.

The voters want to remove the decision from politics. They realize the power is theirs under the state Constitution to demand a full and complete discussion over the next two years, with the matter being put before them at the ballot box in 2004. That is why over 130,000 signed the petitions last fall.

They are sickened now to watch the attempt by some in the Legislature to nullify all that and to thwart the state's Constitution. They are not happy to see the Legislature attempting to deal with this important issue as a sideshow to the annual budget process.

What Are the Choices?

We are hearing much frantic babble about "benefits," "domestic partnerships," "civil unions," etc.

But the simple answer is that no one knows what all of the change in Vermont means -- no one. They are heading into uncharted waters where the answers are all unknown.

What has happened to Vermont is that they now have "gay marriage" with a different name. But their "marriage" law hopefully applies only to that state. Their Supreme Court's decision was based solely upon Vermont law. Their Court studiously avoided any mention of the U.S. Constitution or federal laws because it knew that it ran a probable risk of being overturned by a federal judge if it mentioned the U.S. Constitution or federal law.

Therefore, the Vermont decision does not affect any federal law whatsoever. In addition, it probably cannot be used to force any other state to recognize any legal rights if a Vermont homosexual couple moves to Massachusetts, although there is no lawyer who will say that he knows the answer to that question.

No one doubts that everyone in Vermont in five or ten years will understand that their civil unions in Vermont are "marriage" in every respect except for the name. There will be tremendous pressure at that time to eliminate the distinction and use the name of "marriage" for both institutions. And they will be correct because there is no distinction.

There are still serious questions whether the Vermont arrangement violates the U.S. Constitution. This is because there are many people who wish to share in the benefits of marriage, but Vermont has now extended those benefits to just one group, homosexuals. This is arguably discriminatory against many other groups, such as bigamists, polyamorists, straight couples who also wish to share in those benefits without the responsibility of marriage. But no one has the interest or the money to challenge the decision.

When the Chairman of the Judiciary Committee in Vermont, Atty. Thomas A. Little, was asked at a panel at Suffolk Law School last year why other people who wished to get married hadn't been included, he appeared puzzled at first and then responded that no other group had asked. But everyone knows they will be asking.

Which brings us to the obvious point that if we want to provide health benefits to all, we should just enact universal health care and not do it by arbitrary groups.

Mass. Amendment Is a Compromise

Although there is much talk from the opponents about the proposed Amendment being "draconian" and an extreme measure, it is actually a compromise.

It allows the Legislature to make many accommodations to help non-traditional citizens of all kinds, but it does not allow a sudden, violent change.

It clearly says that no relationship other than one man and one woman shall be recognized as "marriage" in this state. It also clearly says that the state (or its various entities) shall not give the "benefits" that are "exclusive" to marriage to any other relationship.

Therefore, it is crystal clear that any company or other private institution may provide any benefits to anyone it wishes. There is no question about that. The following quote from the Majority Report of the Public Service Committee (15-0 with two abstaining) shows how hysterical the discussion of this matter has become.

"The effects of this amendment would be far reaching. It would be bad for business and bad for labor. Massachusetts would not only allow discrimination, but require it, forbidding employers from granting key benefits to their employees, hampering employers' efforts to recruit and retain workers by offering fair, competitive benefits, and making it unconstitutional to bargain collectively for important employee rights and benefits."

A simple reading of the Amendment shows that the truth is it has no effect - none, zero, zilch - on private companies.

As for government employees, the Legislature is forbidden in enacting an across-the-board benefit package which is "marriage" by another name as has happened in Vermont. The Legislators are the ones who will decide in the first instance which benefits are "exclusive" to marriage. They will remain free to skillfully craft benefits for those non-traditional citizens that they wish to help. But they cannot enact "marriage" by another name.

Memo from Law Professors

A Memorandum has been circulated to the entire Legislature by a group of 23 law professors which has garnered a lot of interest at the State House.

This is the type of misinformation which is being rushed out in an attempt to stop the people from voting on this measure. But it is quickly apparent that this is not from an impartial, disinterested group. It is fiercely partisan.

There is not one member of the group which would not be proud to be called a very liberal person. The Chair, Jane L. Scarborough, is a member of the Massachusetts Lesbian Gay Bar Association and hardly a disinterested person. The law schools from which the 23 professors come are: Suffolk 7, Northeastern 6, New England 3, Harvard 3, B.U. 2, B.C.1, Southern New England 1.

Their memo dramatically, but falsely, states, "In a decision just issued on June 3, the Supreme Judicial Court held that the common purpose of the Amendment is to restrict the benefits and incidents of marriage to opposite-sex couples. [citation] The Court acknowledged that, if adopted the Amendment may affect 'one's ability to inherit, to file taxes, to make medical decisions about a spouse, and to file wrongful death claims.'"

That is totally false. The court did not "acknowledge" anything. The court said that it was the plaintiffs who argued that the Amendment would affect the ability to inherit, etc.

The full text of that section by the SJC was, "The Attorney General must also determine that a petition contains only subjects ' which are related or which are mutually dependent. [citation] The plaintiffs argue that the petition contains subjects that are neither related nor mutually dependent because it affects same-sex couples in many different contexts. In support of this position, the plaintiffs list various statutes that relate to the rights and responsibilities of marriage, including those laws that affect one's ability to inherit, to file taxes, to make medical decisions about a spouse, and to file wrongful death claims." [emphasis added]

It is difficult to see how 23 law professors can make such an egregious error but they did.

It is impossible to answer all of the serious and erroneous charges that will be swirling about this issue in the next few weeks.

Fraud and Intimidation of Voters

There has been systematic and flagrant fraud used by the opponents against the Amendment throughout the campaign. Because the media opposes the Amendment, they have not reported any of it.

Blockers. In violation of the Constitutional rights of voters, the opposition used "blockers" throughout the campaign to follow the signature gatherers wherever they were in the state and to argue vehemently with the voters as they were signing the petitions. There are many pictures and videos of those blockers in action but the media has no desire to write about this. Those pictures are available to any legislator who wishes to see them. Because of the interference by blockers, it was difficult to get volunteers to gather signatures at the malls. And the leaders hesitated to put them into danger of violence. This required the use of paid signature gatherers, which was an unusually large expense to the supporters of the Amendment.

Horse People. It is unclear when the people who were gathering signatures for a statute to outlaw the consumption of horse meat by humans began to collaborate with the opponents of the Marriage Amendment, but this started before the signature-gathering was finished.

The horse people began to level charges of fraud against the Marriage Amendment in November last year and the opponents were quick to jump on these baseless accusations (as though it had been planned). Both the horse people and the marriage people had the same signature-gathering firm working for them. The horse people began to claim that the signature-gatherers were switching voters from the horse petition to the marriage petition because the individual gatherers were paid more by their employer for signatures on the marriage petition.

But even Bay Windows reported that the firm had a good reputation. It was hired by the marriage petition because it was already in the state gathering signatures for Carla Howell and the horse people.

The marriage people immediately requested information from the horse people as to what was happening. They made site visits across the state but were unable to see any irregularities. There was always the possibility that one of the signature-gatherers was cheating in some way. But the horse people made no response except in the press.

Then the horse people sued the Commonwealth and intensified their cries of fraud against the marriage amendment, which were dutifully reported by all the media.

After their suit was dismissed without trial in Suffolk Superior Court in April, the horse people have simply disappeared and have stopped their libel against the marriage amendment supporters. But the opponents continue to spread that lie and apparently plan to do so without challenge for the next two years.

Do the Honorable Thing

The only honorable thing that any Massachusetts legislator can do is to pass this measure on to the voters for their decision at the election in 2004. Over 130,000 citizens have demanded this and the state Constitution requires it.

This election year is not the time for politics or smoke-filled rooms. Let's just follow the law and let the voters make this decision.

Copies of this 4-page pamphlet are available from Massachusetts Citizens for Marriage, 1277 Main St., Waltham 02451. Telephone: 781-647-1942