Legislators Cannot Vote Their Own Opinion about Merits of
Protection of Marriage at Convention on Wednesday

MCM Press Release in Full

MassNews Staff
July 15, 2002

A legislator cannot merely vote his own opinion about the merits of the Protection of Marriage Amendment at the Constitutional Convention on Wednesday, according to a Memorandum of Law being circulated by Mass. Citizens for Marriage.

According to the memo, the Supreme Judicial Court has made it clear over the years that the referendum procedure is a "people's process," which was added to our Constitution in 1918 to provide a "check on legislative action" and to give the people a method of "circumventing an unresponsive" legislature.

The referendum process was added after an assembly of citizens met in Constitutional Convention during 1917-1918 and provided the referendum process under which citizens can bring an Initiative Petition. This has become known as an Article 48 process. Under it, the citizens may approve either a new statute (commonly known as a "law") or an amendment to the state Constitution.

Because there have not been many initiative petitions for a Constitutional Amendment, many legislators have become confused and do not understand the difference between enacting a new "law" by this process and amending the Constitution. Whereas the process for a new "law" requires the legislators to vote their own belief about the proposed legislation, that is not true about a Constitutional Amendment.

Under the Amendment procedure, according to the Supreme Judicial Court, once the matter has been certified to the Legislature by the Secretary of State, the proposed Amendment is to be sent on to the citizens for their vote if the measure has "at least a reasonable amount of public support."

No one denies that the Protection of Marriage Amendment has the support of over 60% of the citizens. Even the opponents of the measure have stated that truism many times and have also said that is why they don't want it to go to the people - they (and everyone else) know that the people overwhelmingly support the measure.

Therefore, a legislator cannot in good conscience vote against the Amendment simply because he does not favor it. The level that is required for him to reject it is much higher. As the SJC says, it is not his prerogative to thwart the people.

The opponents of the Protection of Marriage Amendment petitioned the SJC last October to strike the Amendment from the ballot. The Court rejected their plea in a unanimous decision on June 13, 2002 and held that it is an appropriate measure for the people to decide.

It's clear that whether we are discussing a new "law" or a Constitutional Amendment, the Art. 48 process is to ensure that the will of the majority of the people is not thwarted by an unresponsive Legislature.

If the Legislature will not follow the law, who will? questions Sarah McVay Pawlick, President of Mass. Citizens for Marriage.

Memorandum of Law:
Legislators Cannot Vote Their Own Opinion about Merits of Protection of Marriage at Convention on Wednesday

Massachusetts Citizens for Marriage
Every Child Deserves a Mother and a Father
1277 Main St., Waltham 02451
781-647-1942

We have been asked by many legislators: What standard must a legislator use when deciding whether to send an Article 48 Constitutional Amendment to the voters after it has been certified by the Secretary of State? Is a legislator merely to vote his own opinion about the merits of a proposed Amendment?

There have been very few initiative petitions for Constitutional Amendments. Therefore, many legislators have become confused and do not understand the difference between enacting a new statute (commonly known as a "law") and amending the Constitution. Whereas the process for a new "law" under Art. 48 requires the legislators to vote their own beliefs about the proposed legislation, that is not true about a Constitutional Amendment.

During the years 1917-1918, an assembly of citizens met in Constitutional Convention. One of the changes they made was to provide the referendum process under which citizens could bring an Initiative Petition (which has become known as an Article 48 process) to approve either a new "law" or an amendment to the state Constitution.

The Supreme Judicial Court says the Art. 48 process is a "people's process," which was added to provide a "check on legislative action" and to give the people a method of "circumventing an unresponsive General Court."

SJC Has Given Guidance

There are three decisions from the SJC which give guidance for principled legislators on this process. Two of those decisions concerned a proposed statute.

In 1976, the Court said: "There can be no doubt that it [Art. 48] created a people's process. It was intended to provide both a check on legislative action and a means of circumventing an unresponsive General Court. It presented to the people the direct opportunity to enact statutes regardless of legislative opposition. It projected a means by which the people could move forward on measures which they deemed necessary and desirable without the danger of their will being thwarted by legislative action. As Mr. Joseph Walker of Brookline stated in the Constitutional Convention, 'The principle of the initiative and referendum in its purity means that the people of this Commonwealth may have such laws and may have such a Constitution as they see fit themselves to adopt.'" —Buckley v. Secretary of the Commonwealth, 371 Mass. 195 (1976)

In 1992, the Court quoted the above statement from the Buckley case with approval. It continued, "Our interpretations have been guided by the 'firmly established principle that art. 48 is to be construed to support the people's prerogative to initiate and adopt laws.' . . . We cannot endorse a result that would permit the Legislature, by failing or refusing to comply with a mandatory provision of art. 48, to frustrate the right of the people to place a proposed law on the ballot. . . . Because the purpose of art. 48 is to allow the people 'to enact laws directly without being thwarted by an unresponsive Legislature,' . . . a different result is required." —Citizens for a Competitive Mass. v. Secretary of the Commonwealth, 413 Mass. 25 (1992)

Reasoning Is the Same

The reasoning behind both the initiative for a new "law" under Art. 48 or for a constitutional Amendment are the same. Both were adopted in 1918. The purpose of both is to allow the citizens to enact "laws" and amendments without being "thwarted" by an "unresponsive legislature."

The statutory initiative requires the Legislature to enact the proposed "law" or else the citizens may return with 1/6 the number of signatures originally submitted and the measure will definitely go on the ballot for the voters to decide.

The constitutional initiative requires no additional signatures from the citizens if the legislature votes against it, but the process is longer and more arduous and requires a 25% vote in two Constitutional Conventions before going on the ballot.

The SJC has articulated the purpose of the 25% rule. The Court says that the 25% approval by the Legislature is to ensure that the Amendment has "at least a reasonable amount of public support." But no one - not even the opponents -- denies that the "Protection of Marriage" Amendment has the support of over 60% of the citizens. The opponents have clearly stated that many times and have also said that is why they don't want it to go to the people - they (and everyone else) know that the people overwhelmingly support the measure.

Therefore, a legislator cannot in good conscience vote against the Amendment simply because he does not favor it. The level that is required for him to reject it is much higher. As the SJC says, it is not his prerogative to thwart the people.

The SJC states it this way, "The 'one-fourth vote' requirement applicable to initiative amendments was intended as a 'legislative minority check' on initiative amendments to the Constitution. Its purpose is to ensure that initiative amendments submitted to the people for approval have at least a reasonable amount of public support, as reflected by the favorable votes of at least one-fourth of the legislators elected to the General Court. See 2 Debates in the Massachusetts Constitutional Convention, 1917-1918, at 680, 688 (1918)."
—Opinion of the Justices to the Senate, 386 Mass. 1201 (1982).

The opponents of the "Protection of Marriage" Amendment petitioned the SJC last October that this was not an appropriate measure to be on the ballot. The Court rejected their plea in a unanimous decision on June 13, 2002. The seven Justices 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."

What does the Constitution say about the process? Art. 48, The Initiative, IV, states at Section 4:

"Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays, which shall be entered upon the journals of the two houses; and an unfavorable vote at any stage preceding final action shall be verified by call of the yeas and nays, to be entered in like manner. At such joint session a legislative amendment receiving the affirmative votes of a majority of all the members elected, or an initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court."

It is clear that in either a new "law" or an Amendment, the will of the majority of the people is not to be thwarted by an unresponsive Legislature.

If the Legislature will not follow the law, who will?