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Mass.
Citizens for Marriage SJC Asked to Clarify Duties of Senate Pres. Birmingham on Amendment Process He Will Officiate at Another Vote
this Year on Marriage, Referendum Process Important to All Citizens
The Supreme Judicial Court has been asked to clarify the duties of the Senate President regarding Amendments under the Referendum process when he officiates at the second vote on the issue later this year. "We are not looking for damages from Sen. Birmingham or anyone else," said Sarah McVay Pawlick, regarding the suit she filed today in Boston as President of Mass. Citizens for Marriage. "We want to make sure he understands what he should be doing this time," she said. Pawlick says that MCM will press on with its Amendment regardless of what the SJC does. "This is important because no one knows which Referendum will suffer next from illegal conduct by the Legislature. Will those citizens who come after us want a totally lawless process when they petition the government? We must correct this illegal conduct," she commented. Pawlick believes everyone will follow the law if they know what it is. She continued, "The Court must instruct all of us on the law in this matter." She pointed out that only two Amendments have reached the voters since the Referendum process was established in 1918. "Something is broken," she said. Will Vote Again This Year on Marriage "Almost no one understands there will be another vote on this issue before January when this legislative session will finally end," she said. She went on to say it is "cruel" for the Court to keep telling the citizens over and over that the only remedy they have for the illegal conduct of the Legislature is to go out and elect 48 new legislators. "The voters have always had that remedy. If that is still their only remedy, then the referendum process is worthless." "This Court must make clear to everyone the duties of the Senate President so that when the next vote is taken on our Amendment, Sen. Birmingham can say with certainty to everyone that he must hold a vote as required under the Constitution. That will relieve much of the pressure on him," she says. She believes that the enemies of the referendum process have returned the state to 1918 when the referendum was first adopted. "We have an unresponsive legislature which is thwarting the will of the people. It is even worse than 1918 because at that time, the people knew they had no chance against a cynical politician. But now they go out with enthusiasm to make a difference, only to find that their efforts are still in vain. If we are attempting to make the citizens cynical, we are doing a good job, but to what end?" The Court must advise the people whether we still have a referendum process for Amendments to the Constitution or whether it is dead, she says. If the action of Sen. Birmingham was not a violation of the law, she says, then the citizens will understand that they should never again bring a referendum for a constitutional amendment unless the President of the Senate is on their side -- and unless that President will not be replaced by someone else during the next three years. They will also realize, according to Pawlick, that the procedure under the Constitution as adopted in 1918 has been changed, not by the courts, but by Sen. Birmingham. Instead of obtaining 25% of the legislators, the citizens are now required to obtain more than 50%. This is true because they must have all those votes to defeat a motion to adjourn or a motion for a quorum call. If the drafters of Art. 48 had that intent in 1918, they would have said so. This is clearly a violation of the state Constitution, she believes. Gov. Swift Required to Call Them Back Although it is true that Sen. Birmingham has no power to call the legislature back for this purpose, Gov. Swift does, says Pawlick "She is not a lawyer. She has been getting bad advice from someone if she thinks she has a choice in this matter. If the SJC will end the confusion that has resulted from two of those opinions in 1992 and 1997, we believe the matter will cure itself. "Gov. Swift is an honorable person and will call the Legislature back once she realizes that the Constitution says she 'shall' call them back if they do not vote on the Amendment. Sen. Birmingham and the Legislature voted to adjourn in July without a vote on the Amendment itself. Therefore, the Governor has no choice but to call them back." Pawlick said she also expects that Sen. Birmingham will faithfully perform his duties when he is called back. "He was under tremendous pressure from the extreme feminists at the Globe and NOW who have teamed up with the Mass. AFL-CIO, and with homosexual activists, straight people who want the benefits of marriage without the responsibilities of children, bigamists, polyamorists who want group sex, and others to defeat the Amendment. If he can just tell all those groups he has no choice in the matter, he will also follow the law. "Then we can get on with the real intent of the Amendment which is that every child deserves a mother and a father. We will never achieve that goal but it should always be our guiding star, because that is what every child deserves. Pawlick says that, "Every person understands that the purpose of marriage is not about 'partners.' It is about children and their need for a mother and a father. That is what the debate should be about. "We challenge anyone to name a better or cheaper system of raising children than having their parents do it. It may not be perfect, but it beats anything else. "No one can deny the serious problems that are arising because so many children today do not have a mother and a father. Because the number of families has decreased and our children are suffering as a result, this is no reason to increase those numbers of children in distress as some people wish to do." 'Imperative Duty' of SJC to Interpret Constitution In a brief which was filed with her Complaint, Pawlick noted that the SJC said earlier this year in the Clean Elections case that, "It is the 'imperative duty' of the judicial branch of government to say what the Constitution requires." She reminded them that it is unlikely they will ever get another chance to clarify this matter, because no lawyer would advise anyone to ever begin another referendum for an Amendment under the present law as everyone believes it to be. She told the judges that the citizens were greatly amazed and upset when it appeared to them that the process to amend the state Constitution by referendum was, for all practical purposes, destroyed on July 17 by Thomas Birmingham, the President of the Massachusetts Senate. Of course, she said, the people don't yet realize that the process is not over. The Boston Globe, the most powerful information source in the Commonwealth, is reporting to its readers that the process is over and the Amendment is dead. The other media are following their lead and the opponents also keep repeating that mantra. Pawlick agrees the Amendment is dead as far as the Senate President is concerned, because the Legislature went home on July 31 and he cannot now recall it himself. The citizens are troubled, according to Pawlick. They wonder, she says, if we have become a society without law. This is damaging the image of both the courts and the legislature. She says the Governor is following the Senate President's lead and is presently saying that she will not recall the Legislature, despite the clear requirement of the Constitution. This confusion is in large part due, she believes, to the fact that the extraneous information, called "dicta" by the courts, from the SJC in 1992 and 1997 has been misinterpreted and misreported. This is too bad because the Court has shown many times that it enthusiastically supports the referendum process. Pawlick notes that the Court has written that Article 48 was created as a "people's process" to circumvent an unresponsive legislature. It has said many times that this is a means by which the people can move forward on 1) statutes and 2) constitutional amendments without being thwarted by the legislature. She believes the entire state is looking to the Court for leadership on this issue.. Pawlick says she is not seeking any relief except a clear statement about the duties and responsibilities of the Senate President. She is seeking to avoid any unnecessary litigation and believes that if everyone knows what the law is, they will follow it. What They Are Saying Pawlick's brief cited the Globe as part of the problem. She noted that the newspaper has enormous influence and power in this state and it staunchly opposes the Amendment. It wrote in its news columns on May 2, 2002, "As Senate president, Birmingham could choose to not schedule a proposed amendment for a vote, which would scuttle the measure." That is not true, says her brief. If Sen. Birmingham did as they suggested, this would violate the law. This is not just another political decision he can "choose," says the brief. The Globe gave public advice on its news pages that if Sen. Birmingham were to see that no vote is taken on the measure, it would "potentially generate some needed excitement about his campaign [for Governor]." The paper did not say anything about whether this would be moral, ethical or legal, according to the brief. According to the Globe, this was strictly a political question for the Senator. The Globe also indicated that the Senator could use more "subtle" means of avoiding a vote. It said, "He could use more subtle means of squashing it, rallying allies behind the scenes and then putting it up for a vote when he knows it wouldn't get the support it needs to pass." While such a tactic may not be "nice," says Pawlick's brief, it is usually expected in politics. But the question about which many want an answer is whether not calling for a vote despite the mandate by the Constitution is merely a "political trick" or is it a violation of our state laws? Pawlick said in her brief that Senator Birmingham did not attempt to hide what he was doing. His spokesperson, Alison Franklin, openly told the Globe that he might never allow the measure to come to a vote. When he followed through on that threat, this allowed one man to nullify every effort that had been made by thousands of voters for two years to put the Amendment on the ballot for a decision at the elections in 2004. In a story in the Boston Globe the day before the July 17 vote, the Globe said that ". Birmingham said he is seeking ways to defeat the measure .Birmingham said he is strategizing with other opponents on ways to block the question from advancing tomorrow, but he would not detail their plans." He told the paper, "I'm going to do what I can to defeat it. Our options are open." He told the press on July 17 after the Amendment was not allowed to come to a vote: "Today we saw democracy in action. They may not like it but they lost two to one." He also admitted that a vote on the merits was not allowed and a Motion to Adjourn was allowed so that the legislators could deny that they voted against the Amendment. Birmingham told the press, "Everybody [i.e., the legislators] recognizes a vote to adjourn was a vote up or down [on the Amendment]." The Globe reported that the measure appeared to have the necessary support "and more," and that is the reason that Birmingham did not allow the legislators to vote on it. Sen. Birmingham was afraid the Amendment would pass, according to an article in Bay Windows. Sen. Cheryl Jacques told Bay Windows that she was fighting to stop a vote from ever taking place in the Legislature: "I'm fighting.to see that [the Marriage Amendment] never comes up for a vote. I'm happy to throw my body in front of the train to block this question." She says Sen. Birmingham's delay of the vote was heroic: "Tom Birmingham is a hero for the gay community." The article said he may never allow a vote. "Birmingham, who opposes the measure, has not committed to bringing it up for a vote at the upcoming Constitutional Convention [on July 17], leaving open the possibility that the amendment could be dead and buried by the end of this legislative session." Jacques said it is not undemocratic to defy the state Constitution and break the law. But the public disagrees. After the vote, Bay Windows unhappily reported there was criticism of the process from all sides. "Hardly a day has passed without reading or hearing criticism over the way Massachusetts Senate President Tom Birmingham handled the legislative process." Even Robert Reich said he disapproved of the way it was handled, saying, "We should have had a vote on this issue and all issues." The MetroWest Daily News, which strongly opposed the Amendment, was upset that the law was so blatantly violated: "We elect senators and representatives to debate and vote on the issues of the day. Most people who run for office expect to be called on to take a stand on tough questions. Birmingham should get out of the way and let elected legislators do what they are paid to do." The State House News Service had this to say from its offices at the State House: "Another power play was pulled on Wednesday. The Legislature voted 137-53 to adjourn its Constitutional Convention for the year rather than debate and vote on a controversial measure put before them by a campaign that had garnered more than 130,000 signatures. Senate President Thomas Birmingham, who orchestrated the proceedings, said it was better to kill a measure defining marriage as between a man and a woman by adjourning than risk taking it up and having it pass, which would have moved the measure one step closer to a ballot vote two years from now." According to Pawlick, most people are outraged at what they see as this breakdown in our government. 
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