Ballot to ban gay marriage debated

In a spirited debate that touched on topics ranging from slavery to the Progressive Era in American politics, supporters of same-sex marriage yesterday urged the state's highest court to disqualify a controversial ballot question to ban gay matrimony starting in 2008.

A lawyer for Gay & Lesbian Advocates & Defenders argued before the Supreme Judicial Court that Attorney General Thomas F. Reilly, in approving the ballot question, flouted a provision in the state constitution that blocks citizen-generated questions seeking the ''reversal of a judicial decision." The SJC legalized gay marriage in Massachusetts in November 2003.

The provision clearly meant that ''the people shouldn't be able to directly attack an SJC decision," said Gary D. Buseck, legal director at GLAD. ''They shouldn't be able to have a referendum on that decision." The provision was passed at the Massachusetts Constitutional Convention of 1917-1918, which authorized ballot questions.

But Peter Sacks, the lawyer for Reilly's office who wrote the September decision certifying the ballot question, countered that the provision dealt with attempts during the Progressive Era a century ago to overturn unpopular court rulings by going directly to voters. That is different, he said, from the proposed gay marriage ban, which would change the constitution itself by defining marriage as strictly the union of a man and a woman. The drafters at the Constitutional Convention were ''very clear that the people should be the masters of their own constitution," Sacks said.

The arguments before the court dealt with complicated and arcane constitutional questions. But the court's ruling, which Buseck said may come in four to six weeks, could have profound implications for Massachusetts politicians as well as for citizens on both sides of the gay marriage debate.

A spokeswoman for Reilly, who is seeking the Democratic nomination for governor, e-mailed news outlets after the arguments to say his decision to certify the ballot question was ''based solely on the constitution." Although Reilly personally opposes the ban, ''we are confident that letting this question proceed was the proper legal decision," Meredith Baumann, Reilly's press secretary, said in the statement. Nonetheless, one of his Democratic rivals, Deval L. Patrick, criticized Reilly for defending the legality of the ballot question and said the SJC ''got it right" when it legalized gay marriage.

Since Reilly's office certified the ballot question, about 123,000 registered voters signed petitions to support it, breaking the record for the most signatures certified in such a ballot campaign, according to the Massachusetts Family Institute, which spearheaded the campaign. The question must get the backing of at least 50 lawmakers in two successive legislative sessions before it can appear on the November 2008 ballot. If the measure passed, it would not undo same-sex marriages that have occurred since May, 17, 2004, as a result of the high court's landmark decision. But it would halt further same-sex marriages.

Jonathan Saltzman can be reached at jsaltzman@globe.com.