Decision's critics may appeal to SJC

Turning to the very court that legalized gay marriage, advocates of same-sex marriage said yesterday they would ask the Supreme Judicial Court to overturn Attorney General Thomas F. Reilly's decision advancing a proposed ballot question that would seek to block such weddings in Massachusetts.

Gary D. Buseck, the legal director at Gay & Lesbian Advocates & Defenders, said his group will target what he called Reilly's myopic reading of a section of the state constitution governing citizen-generated ballot questions. Buseck said that section prohibits initiatives like the one the attorney general approved because it would undo a court's decision.

''I was shocked at the attorney general's ruling today," Buseck said. ''I really think the clear weight of the law is on our side. All I can say is we'll get a fair hearing before the SJC."

But the legal challenge won't stop backers of the proposed gay-marriage ban from collecting signatures this fall. And, recent history suggests Buseck and other gay-marriage supporters face long odds: Since 1991, the SJC has considered nine lawsuits seeking to decertify ballot questions approved by attorneys general, according to Reilly's office. The court overruled the attorney general twice.

Even former Attorney General Scott Harshbarger, who co-wrote a letter to Reilly last month urging him to reject the ballot question, acknowledged as much yesterday. ''If they've done their jobs," he said, referring to Reilly and his staff, ''there's a very good chance that the Supreme Judicial Court will uphold the attorney general."

Buseck said gay-marriage supporters will wait to see if proponents of the ban collect the necessary signatures. If they do, he said, gay rights advocates will file a legal challenge in late December or early January.

Under the process established for challenging certified ballot questions, he said, the request would first be reviewed by a single justice of the SJC and then the full court. He said he expected that the full court would hear oral arguments in April or May and issue a ruling by June. The gay marriage ban is aimed at the 2008 ballot.

Kristian Mineau, president of the Massachusetts Family Institute, which led the effort to get the gay-marriage question on the ballot, said his group was ''very confident" that the SJC would uphold Reilly's ruling. He said hundreds of volunteers are preparing to collect the signatures of at least 65,825 certified registered voters beginning Sept. 21.

''We're moving ahead," he said.

The ballot question that Reilly certified would amend the Massachusetts constitution to require the state and local governments to recognize only marriages between men and women. The amendment would prohibit gay marriage after 2008 but preserve the same-sex marriages that would have already taken place.

In challenging Reilly's decision, gay marriage advocates plan to focus on an article of the state constitution approved at a Constitutional Convention between 1917 and 1918 that authorized citizen-generated ballot questions. That provision bans a variety of ballot questions, including any that result in the ''reversal of a judicial decision."

Peter Sacks, deputy chief of the attorney general's government bureau and author of yesterday's 15-page decision, wrote that that phrase referred to the ''recall of judicial decisions." Sacks said the phrase dealt with attempts during the Progressive Era to overturn court rulings by going directly to voters.

That is very different from petitions such as the gay-marriage ban to change the constitution itself, Sacks suggested. ''Amending the words of the constitution does not require the people to say that a court's decision was wrong and should be ignored," he wrote. ''Instead, it changes the rules to be applied by the court so that future cases will turn out differently."

The SJC has in recent years agreed that the phrase ''reversal of a judicial decision" was ''used in a very special and limited sense," Sacks wrote.

Buseck accused Sacks of ignoring the obvious meaning.

''It's a black letter principle of law that if language is clear and unambiguous, the court interprets it according to its terms, and I don't know anything that could be clearer than this," he said.

Constitutional scholars said that Buseck may be right, but that the SJC will have to explore what framers of the provision at the Constitutional Convention in the early 20th century had in mind. That will be a challenge because citizen-generated petitions rose in a radically different era. It was a time when self-styled reformers such as Theodore Roosevelt were grappling with how to respond to courts that were invalidating progressive social legislation such as laws restricting child labor.

''All I'm saying is it certainly doesn't look like the kind of open-and-shut argument Reilly makes it seem like," said Charles Baron, a professor of constitutional law at Boston College Law School.

Michael Avery, who teaches constitutional law at Suffolk University Law School, agreed, saying, ''It's always hard to go back to try to determine almost 100 years later what the people of that time intended, particularly when the historical circumstances in which the debate arose are so very different."

Both Baron and Avery agreed on another point: the SJC will not allow its landmark decision in November 2003 legalizing gay marriage to color how it considers Reilly's decision certifying a ballot question to ban such weddings.

''Whatever decision they render here is something that's not only going to be law when someone wants to propose an amendment having to do with gay marriage," Baron said. ''I would expect that they'll deal with this as lawyers."

Jonathan Saltzman can be reached at jsaltzman@globe.com