Suit seeks to bar ballot query

Supporters of same-sex marriage filed suit with the Massachusetts Supreme Judicial Court yesterday to try to disqualify a proposed ballot question asking voters to ban gay matrimony starting in 2008.

In the lawsuit, Advocates & Defenders contends that Attorney General Thomas F. Reilly ignored a provision in the state constitution that prevents ballot initiatives that seek to reverse a judicial decision. The SJC legalized gay marriage in Massachusetts in November 2003.

''This proposed antigay, antimarriage amendment is meant squarely and solely to reverse that decision," GLAD's legal director, Gary Buseck, said yesterday.

David Guarino, a Reilly spokesman, issued a statement saying that GLAD's legal theory is flawed because the proposed amendment would not overturn the SJC's ruling and invalidate thousands of gay marriages that have already taken place. Rather, it would change the constitution so that no more such marriages could take place if the measure passed.

''We are confident that letting this question proceed was the right decision," Guarino said. ''The attorney general's decision to certify this question for the ballot was based solely on the constitution. This proposal isn't a reversal of a judicial decision but an effort to change the constitution going forward."

Reilly certified the ballot question in September, saying he personally opposed the measure but saw no legal reason to block it from moving forward. Since then, more than 124,000 registered voters signed petitions in support of the question, breaking the record for the most signatures ever certified in such a ballot campaign.

The ballot question, which must get the backing of at least 50 lawmakers in two successive legislative sessions before it appears on the November 2008 ballot, would define marriage as the union of one man and one woman.

It would not negate the thousands of same-sex marriages that have taken place since gays were allowed to legally wed on May 17, 2004. However, it would immediately stop any further marriages from taking place if voters approve the measure.

Kris Mineau, president of the Massachusetts Family Institute, which spearheaded the ballot question campaign, said the question was intentionally designed to withstand the kind of legal attack that GLAD is now mounting.

''We would not have embarked on this endeavor if we did not have legal confidence in addition to political and theological confidence," Mineau said. ''This issue took in all of those realities, and our language meets all three criteria."

When opponents of same-sex marriage first announced the formation of their ballot committee, Governor Mitt Romney held a press conference to praise their efforts, and later, congratulated Reilly for certifying the question despite his personal misgivings.

Yesterday, Romney's communications director, Eric Fehrnstrom, said democracy itself is intertwined in the fate of the ballot question.

''Activist judges on the Massachusetts Supreme Judicial Court made gay marriage legal in the Commonwealth," Fehrnstrom said. ''The Legislature did not have a say in it, nor did the executive branch, and if the people themselves are going to be denied any say in the matter it would mean that democracy has no meaning in Massachusetts."

But supporters of same-sex marriage say the Legislature has had its say on the issue.

Lawmakers voted in 2002 to adjourn their constitutional convention rather than hold an up-or-down vote on another proposed constitutional ban on gay marriage, and earlier this year, lawmakers overwhelmingly defeated a compromise measure aimed at replacing same-sex matrimony with civil unions.

''Our SJC did their job: determining whether or not it was unconstitutional to deny same-sex marriage," said Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus. ''Romney might not like the conclusion they drew, but that is their job. Just because Romney doesn't like the outcome doesn't mean the process was wrong."