Vote on gay marriage is due but can't be forced, SJC says

The Supreme Judicial Court said yesterday that while state lawmakers have a constitutional duty to vote on a ballot initiative to ban same-sex marriage, the justices could not order the Legislature to vote.

The high court, which legalized same-sex marriage in a landmark 2003 ruling, issued the unanimous decision in response to a lawsuit spearheaded by Governor Mitt Romney, who is trumpeting his opposition to such marriages as part of his expected run for the Republican presidential nomination.

The ruling is a legal victory for advocates of same-sex marriage, who are seeking to keep the question off the 2008 ballot, but a symbolic triumph for Romney and opponents of the marriages, who have pressured the Legislature to vote. The decision puts the controversy squarely back before the Democratic-controlled Legislature, which is expected to take up the issue again Tuesday, the last day of its current session.

The justices concluded that because of the constitutional separation of powers between the judicial and legislative branches of government, they have no legal authority to force a vote. But the high court said legislators took an oath to uphold the Constitution and "ultimately will have to answer to the people who elected them" if they fail to act.

Romney hailed the ruling as vindication, saying the court rejected the view of those who have argued that the 1918 constitutional amendment that allows ballot initiatives never mandated a vote by the Legislature.

"I applaud the court's unanimous decision that the Legislature has a constitutional duty to vote on the merits of the marriage amendment," Romney said in a statement. "As the court has made very clear, a procedural maneuver to avoid this responsibility would violate a legislator's oath of office. The issue is now whether the Legislature will follow the law."

A spokeswoman for Senate President Robert E. Travaglini, a defendant in the lawsuit, said he had no comment on the ruling or what might happen Tuesday. House Speaker Salvatore F. DiMasi also had no comment, his spokeswoman said.

However, Senate minority leader Brian P. Lees predicted that the ruling will have little effect on the Legislature, which voted 109-87 in a joint session last month to recess without a vote on the amendment.

The ban needs the backing of at least one-quarter of state legislators to advance to next year's session and, ultimately, to the 2008 ballot. Opponents of the ban fear that it would easily muster that much support if lawmakers took an up-or-down vote.

Lees said his duty to vote against a measure that would discriminate against a minority group trumped the court's findings. "I will never vote to put a form of discrimination into the state constitution," said Lees, an East Longmeadow Republican.

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, a group that urged the Legislature not to act on the ban, said yesterday that advocates of same-sex marriage were lobbying legislators to again avoid a vote on Tuesday.

"We know that if the Legislature votes on the amendment, we will lose this year and next year, and it will go to the ballot, where it will likely pass," Isaacson said.

If lawmakers ignore the court's rebuke, they could adjourn the joint session for the year Tuesday or recess at midnight, when the session legally expires, according to legislative observers. Another option would be for enough supporters of same-sex marriage to boycott the session so that it does not have a quorum.

But Kris Mineau, president of the Massachusetts Family Institute and a supporter of the ban, said the court has made it clear that such maneuvers defy the constitution. His group and other backers of the proposed constitutional amendment had collected 170,000 signatures to get the measure on the ballot.

"These legislators have to make a decision on Jan. 2: Do I obey the constitution, or do I violate the constitution?" he said. "There's no wiggle room."

Romney, who leaves office on Jan. 4, and 10 other plaintiffs filed the suit last month, charging that legislators subverted the state constitution on Nov. 9 when they refused to vote on whether to put the amendment on the ballot.

In its ruling yesterday, the court said that, despite arguments to the contrary by some supporters of same-sex marriage, the requirement to vote on the merits of a bona fide voter initiative petition is "beyond serious debate."

But "there is no presently articulated judicial remedy for the Legislature's indifference to, or defiance of, its constitutional duties," said the opinion written by Justice John M. Greaney, the longest-serving member of the court. "We have no statutory authority to issue a declaratory judgment concerning the constitutionality of the legislative action, or inaction, in this matter."

Still, Eric Fehrnstrom, a spokesman for Romney, said the ruling will increase pressure on lawmakers to act. "Legislators have been trying to cloud the issue by saying there was no obligation to vote," he 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 Jan. 2."

Lee Swislow, executive director of Gay & Lesbian Advocates & Defenders, said she hoped the legislators would continue to balk, even if it seemed like a cynical maneuver.

"This is my right to marry the person I love, and putting that [measure] 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.

Frank Phillips of the Globe staff and Globe correspondent Andrew Ryan contributed to this report. Jonathan Saltzman can be reached at jsaltzman@globe.com.