SJC role in gay marriage vote argued

Both sides in a legal battle over a proposed ballot initiative to ban gay marriage acknowledged yesterday that the Supreme Judicial Court cannot force the Legislature to vote on whether to put it on the ballot.

The lawyer representing the president of the state Senate told the seven justices in oral arguments that if the Legislature fails to act before the session ends Jan. 2, the people's only recourse is to vote for different legislators in the next election.

"Our position is that judicial relief is not available," even though architects of the state ballot initiative process intended lawmakers to bring such measures to a vote, said Assistant Attorney General Peter Sacks, who defended Senate President Robert E. Travaglini and Secretary of State William F. Galvin in the lawsuit.

The suit, spearheaded by Governor Mitt Romney, charges 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.

John D. Hanify, a lawyer representing Romney as a private citizen and 10 other plaintiffs, also conceded that the court could not force the Legislature to take a vote, but said the justices could pressure lawmakers to act by spelling out the intentions of the constitutional provision that permits citizen initiatives.

"We're not asking you to tell the Legislature how to do their business," he told the court. "We're only asking you to declare what their constitutional obligations are."

He called the recess an obvious and calculated ploy by the Legislature to duck the issue.

Supporters of the ballot measure want a decision before the legislative session ends, but the court, which legalized gay marriage beginning in May 2004, did not say when it will rule.

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.

In a radio interview yesterday on WBUR, Travaglini, who was among the 87 legislators who voted against a recess, said the amendment should be brought to a vote. "I do believe . . . in my own personal and political professional view, that a vote is the appropriate action to take on the measure, one way or the other," he said.

Kris Mineau, president of the Massachusetts Family Institute and a supporter of the ban, said yesterday that he hoped the court will resolve what he called a "constitutional crisis."

But Lee Swislow, executive director of Gay & Lesbian Advocates & Defenders, said legislators who recessed were "very brave about not allowing this discriminatory amendment to go forward."

The Committee for Health Care for Massachusetts filed a brief siding with backers of the marriage ban, saying the convention recessed without taking action on an initiative to guarantee affordable health coverage.

Saltzman can be reached at jsaltzman@globe.com. Ryan at acryan@globe.com.