Reilly OK's 2008 initiative on ban of gay marriage

Massachusetts Attorney General Thomas F. Reilly gave the go-ahead yesterday to a proposed 2008 ballot question on banning gay marriage, clearing the way for backers of the initiative to collect signatures this fall to place it before the Legislature and, eventually, the voters.

Reilly, a Democrat who is seeking his party's nomination for governor next year, said he personally opposes the proposed ban on same-sex marriage, but his reading of the state constitution and state law ''has led me to the decisions that I've made" to formally certify the ballot initiative.

''When I was sworn in and I accepted the duties and responsibilities of this office, I took an oath to uphold this constitution and uphold the laws of this Commonwealth, and that oath is very important to me," said Reilly, as he held a bound copy of the state's laws and constitution.

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The decision had the immediate effect of undercutting support for a separate compromise measure that would ban gay marriage but allow civil unions. That effort, aimed for the 2006 ballot, is now likely to be defeated when the Legislature takes it up next week.

Gay-marriage advocates yesterday harshly criticized Reilly for his decision on the 2008 question, and they vowed to appeal to the Supreme Judicial Court. The advocates said Reilly ignored ''plain and direct" language in the state constitution prohibiting ballot questions that seek to overturn judicial rulings.

''Today, Tom Reilly threw the entire gay community in front of the bus," said Arline Isaacson, cochair of the Massachusetts Gay and Lesbian Political Caucus. ''We are stunned and horrified by the cowardly nature of this crassly political decision."

Backers of the ballot question, whose committee is called VoteOnMarriage.org, said they have hundreds of volunteers ready to gather signatures. Under the law, the ballot committee may begin collecting signatures 14 days after the language is certified -- in this case, Sept. 21. The committee has 60 days to obtain the signatures of at least 65,825 registered voters.

If the signatures are certified, the measure would face two votes in the Legislature: one in the current session, which concludes at the end of 2006, and then, if it passes, another vote in the next session. In each case, at least 51 lawmakers would have to back the measure to place it on the statewide ballot in November 2008.

Kristian Mineau, president of the Massachusetts Family Institute, which backs the ballot question, said his group had been concerned Reilly might succumb to lobbying by proponents of gay marriage, but he felt confident the law supports the initiative effort.

''We're very pleased with the attorney general's decision because it's obvious that he made a judicial decision, that he was not swayed by political considerations or special interests, and we . . . can now proceed full steam ahead," Mineau said.

Supporters of the effort to get the measure on the 2008 ballot include Gilbert Thompson, president of the board of the Black Ministerial Alliance of Greater Boston, former SJC justice Joseph Nolan, and former Boston mayor Raymond Flynn.

The measure says: ''When recognizing marriages entered into after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman."

Governor Mitt Romney, a Republican who endorsed the measure this summer, praised Reilly's decision. ''The attorney general made the correct decision based on the facts and the law, and based on the principle that the people should have the last word on how our society defines marriage," Romney communications director Eric Fehrnstrom said in an e-mailed statement.

Deval L. Patrick, Reilly's chief rival for the 2006 Democratic Party's nomination for governor and a former assistant US attorney general, blasted Reilly. Patrick, who supports gay marriage, said Reilly has paved the way for years of acrimonious fighting on a topic that he believes is not a major issue to the vast majority of Bay State voters. He also dismissed Reilly's argument that he was merely adhering to the law.

''I have taken in my own public life an oath to uphold the constitution, I understand the solemnity of that commitment," Patrick said in an interview. ''I also understand that within the bounds of that commitment, you take a cold, hard look at the arguments offered and you make the decision in the interests of the whole. There was a strong argument that this should have gone a different way."

Secretary of State William F. Galvin, who is also considering a run for governor on the Democratic ticket, declined to offer an opinion on Reilly's decision, but said he sees no reason for voters to support the ballot question.

''I think this is one of those instances where the institution of gay marriage may be less divisive to society than the referendum campaign will be," Galvin said. ''The emotions that this kind of issue brings out can be very detrimental to society. It has been around for a year and any honest person can conclude that it has not been detrimental to society."

Gay-marriage proponents had argued that Reilly should not certify the ballot question for two reasons. One argument was that the question would violate a ban on ballot initiatives that seek to overturn a judicial decision. The second argument was that no question that has already been certified in either of the previous two biennial election cycles should be certified. Because Reilly in 2001 certified a ballot question to ban gay marriage, the argument went, the latest effort was not valid.

Reilly said yesterday that neither argument passed legal muster.

On the first argument, he said the proposed amendment was not an attempt to overturn the SJC's ruling, but rather an attempt to change the constitution on which the ruling was based. Peter Sacks, a deputy in Reilly's office, said that the authors of a section of the constitution on ballot initiatives ''clearly meant to allow initiative petitions to amend the words of the constitution in response to a court decision finding a law unconstitutional." Sacks said the proposed ballot amendment does not involve the ''reversal of a judicial decision."

On the second argument, Reilly said the intent of the law was to prevent the same question from coming up year after year, but voters never had a chance to vote on the measure he certified in 2001 because it was killed in the Legislature the following year.

''I put aside my own personal feelings and I decided this entirely, entirely on the constitution and the laws of this state," Reilly said.

A Boston Globe poll in March found that 56 percent of people questioned said gay marriage should be allowed by law. In addition, the state Democratic Party in May voted overwhelmingly to endorse same-sex matrimony in the party's platform.

Reilly said he paid no heed to the political impact of his decision to certify the ballot question. ''It's not even weighed in my mind," Reilly said. ''It would be a violation of my oath if I even looked at it that way."

Frank Phillips of the Globe Staff contributed to this story.