Ballot initiative creates dilemma
Reilly must decide on same-sex marriage
Attorney General Thomas F. Reilly, already experiencing a rocky relationship with gay and lesbian activists, is now under pressure from gay marriage activists to reject a proposed ballot initiative that would ban same-sex matrimony in Massachusetts.
The dispute puts Reilly on the horns of a dilemma as he competes for the Democratic gubernatorial nomination against former assistant US attorney general Deval L. Patrick, an outspoken gay marriage backer whose base is largest among the party's left-leaning core.
The attorney general's office must certify all state ballot questions, but Reilly gave no clue yesterday as to whether he will certify the same-sex marriage ballot question. The deadline for that decision is Sept. 7. Gay marriage opponents are aiming to put the proposed ban on the 2008 ballot.
''We ask for information from all parties as part of the ballot initiative process, and right now we are reviewing that information to determine whether the initiatives meet constitutional standards," said Reilly spokesman Corey Welford. ''Politics has nothing to do with this process. It's purely legal."
The state Democratic Party delegates voted overwhelmingly this year to make support for gay marriage a plank in the party's platform, the third state party in the nation to do so.
Reilly long opposed same-sex marriage but said earlier this year that he accepts the Supreme Judicial Court's 2003 ruling legalizing it.
He also refused to seek a stay of the SJC's ruling last year at the request of Governor Mitt Romney, angering gay marriage opponents.
In their brief filed with Reilly's office, Gay and Lesbian Advocates and Defenders argue that the attorney general should reject the ballot initiative for two reasons.
The group's lawyers referred to the early 20th-century legislative debates that led to the prohibition of citizen-initiated ballot questions that seek to overturn judicial decisions. At that time, lawmakers agreed that only the Legislature should have that power, not the citizens directly.
''It is GLAD's position that the debates of 1917-1918 demonstrate a careful decision to exclude from the constitutional initiative process the power of the people to effect in that way the reversal of a decision of the SJC declaring a law unconstitutional," the brief says.
The group also argued that the referendum should not go forward because it is very similar to a ballot measure certified in 2002, even though it was later blocked in the Legislature.
The Massachusetts Constitution forbids the certification of any citizen-initiated ballot question if it is ''substantially the same" as another question certified in either of the previous two election cycles.
Jennifer L. Levi, a senior GLAD attorney and law professor at Western New England School of Law, said both arguments for rejecting the ballot question are ''very strong."
''The language couldn't be clearer," Levi said. She added that she doubts that politics would play a part in the attorney general's decision.
''Ultimately, what he's being asked is to interpret a provision of the state constitution, and that shouldn't be a political issue," she said.
But Kristian Mineau of the Massachusetts Family Institute, which is spearheading the ballot initiative effort to ban same-sex marriage, said his camp feels exceedingly comfortable that Reilly will approve the question.
''We anticipated it well ahead of time, and we will be filing a response," Mineau said of GLAD's arguments, ''We feel confident that the challenges are unfounded, and we don't have much concern about it."
He added that his group has found ''plenty of legal precedent" to rebut GLAD's arguments and will refer to them in the brief the group will file with Reilly's office today.
Regardless of which way Reilly decides, a legal challenge is a virtual certainty, both sides agreed yesterday. Typically, challenges go directly to a single justice of the SJC, which decided the same-sex marriage issue on a 4-to-3 vote on Nov. 18, 2003.
Meanwhile, signature gatherers are usually allowed to begin collecting support for their petitions during the challenge.
To get its question on the ballot, the Massachusetts Family Institute must gain Reilly's certification and then gather 66,000 signatures during a 60-day window this fall.
If that succeeds, at least 51 of the 200-member Legislature must approve it in two sessions before it can appear on the 2008 ballot.
While Reilly has at times been an ambivalent ally of gay rights supporters, rival Patrick, while working in the US Justice Department, was an advocate for passing laws protecting gays against assault.
Also, earlier this year he took part in Boston's gay pride parade.
Patrick declined to comment. In the past, however, he has expressed support for the SJC's ruling, saying: ''The court got it right. Let's move on." 