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Wednesday, December 27, 2006
By Jonathan Saltzman, Globe Staff, and Andrew Ryan, Globe Correspondent
The Supreme Judicial Court ruled today that it had no authority to order the Legislature to vote on a ballot initiative to ban gay marriage, but the justices gave Governor Mitt Romney a symbolic victory by scolding lawmakers for shirking "their lawful obligations."
The SJC, the same court which legalized gay marriage in 2004, issued the unanimous 11-page ruling this morning in response to a lawsuit spearheaded by Romney, who is expected to run for the 2008 Republican presidential nomination as a social conservative.
The justices wrote that all the legislators took an oath to uphold the Constitution and will "ultimately will have to answer to the people who elected them."
Eric Fehrnstrom, a spokesman for Governor Mitt Romney, hailed the ruling as vindication for the plaintiffs even though the court dismissed the suit.
"We are very pleased that the court has confirmed once and for all that the Legislature has a constitutional duty to vote on the marriage amendment and that any failure to do so would be a violation of their oaths of office," Fehrnstrom said.
However, Lee Swislow, executive director of Gay & Lesbian Advocates & Defenders, praised the SJC for ruling it had no authority to intervene even though the court agreed with Romney that lawmakers were dodging their constitutional duty. Swislow said she hoped the Legislature would continue to refuse to vote on the ballot initiative despite the rebuke from the SJC.
"This is my right to marry the person I love, and putting that on the ballot feels like the most cynical thing that could happen on a very personal level," said Swislow, who married her partner of 10 years in June 2004.
Romney, who leaves office on Jan. 4, and 10 other plaintiffs filed the lawsuit last month charging that legislators subverted the state constitution Nov. 9 when they met as a constitutional convention and took no action on the voter-initiative petition. The Legislature voted, 109 to 87, to recess before deciding whether to put the amendment on the 2008 ballot.
Backers of the proposed constitutional amendment collected 170,000 signatures to get the measure on the ballot in 2008. To qualify for a statewide referendum, a measure needs the support of at least 50 legislators in two consecutive sessions. Instead of acting on the measure, the Legislature moved to recess the joint session until Jan. 2.
While the seven-member SJC rebuked lawmakers in today's decision for using a procedural maneuver to avoid a vote, the court acknowledged that it could not legally intervene.
"There is no presently articulated judicial remedy for the Legislature's indifference to, or defiance of, its constitutional duties," the opinion says. "We have not statutory authority to issue a declaratory judgment concerning the constitutionality of the legislative action, or inaction, in this matter."
Fehrnstrom said that Romney and the other plaintiffs knew the lawsuit would be difficult because there was no legal mechanism to force the legislators to vote despite the Constitution.
"Legislators have been trying to cloud the issue by saying there was no obligation to vote," Fehrnstrom said. "Now that we have a very clear and unambiguous statement from the court that there is a constitutional duty to vote, it's going to be very difficult for individual legislators to sidestep the issue on January 2nd."
Posted by the Boston Globe City & Region Desk at 11:21 AM