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Gay-marriage opponents get SJC go-ahead

Amendment effort is constitutional

The Supreme Judicial Court delivered a major victory yesterday to opponents of same-sex marriage, validating a proposed constitutional amendment that seeks to outlaw gay weddings in a 2008 ballot measure.

In a unanimous decision, the court rejected a claim by gay-rights advocates that Attorney General Thomas F. Reilly erred last year in deciding that the proposed amendment was constitutional. The court ruled that voters had a right to decide whether such a ban belongs in the state constitution.

Yesterday's decision sets the stage for a highly anticipated joint session of the Legislature tomorrow, when lawmakers have the power to advance or kill the ballot initiative altogether. The stakes are high because the initiative is, for the moment, the only serious challenge to same-sex marriage in Massachusetts, the lone state to allow it.

The court's decision turned on a provision in the state constitution prohibiting any amendment that seeks the ``reversal of a judicial decision." Gay-marriage advocates contend that because same-sex marriage was made legal in 2003 by an SJC ruling, the proposed ballot question would run afoul of that prohibition.

But the SJC justices ruled that the word ``reversal" has been interpreted by the SJC in other cases to mean the overturning of a specific case. The amendment, they wrote, seeks not to reverse the decision per se but merely to enact a new law prohibiting gay marriage.

Justice Robert J. Cordy, writing for the court, said ``it is apparent that the plain language of [the constitution] does not bar the people from using the initiative process to amend the constitution."

Renee M. Landers, a former Boston Bar Association president who teaches at Suffolk Law School, explained the court's legal basis using the example of a tenant who wins damages from his landlord in a civil suit. The landlord could not, under the law, get a constitutional amendment passed that reverses that decision.

But Landers said the court found that the proposed ban is constitutional because it would change state law, not reverse a judicial decision for a specific party. ``Changing the law, what the legal rule is, is a completely different thing," Landers said.

Gay-rights advocates were dismayed by the decision but vowed to continue their challenge.

``We're obviously disappointed," Gary D. Buseck, legal director for Gay & Lesbian Advocates & Defenders, said in an interview. He added, ``If . . . this amendment gets on the ballot and gets adopted, then, yes, we'd consider every possible legal challenge as to its ultimate constitutionality."

When Reilly certified the ballot question in September, he took heat from gay-marriage supporters, who said he should have used his legal discretion to reject it.

Yesterday's decision affirms, for the second time this year, a controversial position Reilly has taken on a gay-marriage case. In March, the court agreed with him that an obscure 1913 state law allowed Massachusetts to prevent out-of-state same-sex couples from marrying here if their home state wouldn't recognize the marriage.

``Today, the Supreme Judicial Court did their job in unanimously affirming my decision based on the law and the Massachusetts Constitution," Reilly said in a statement. ``Without regard to my personal opposition to the proposed ban, I made the right legal decision, as did the court."

Reilly's involvement in this case, like his involvement in other legal maneuvering over gay marriage, has a political dimension. Reilly, a former opponent of same-sex marriage who came to support it, is running for governor, and his refusal to rule against gay-marriage foes on such cases has angered many in the gay community.

Sponsors of the proposed ban heralded the SJC decision as proof that they've done everything by the book .

``We were confident that the language of our amendment was on solid ground constitutionally," said Kris Mineau, president of the Massachusetts Family Institute. ``We are pleasantly surprised at the timing, because this does give us added momentum going into the constitutional convention." (The convention is the joint legislative session that convenes tomorrow.)

To appear on the 2008 ballot, the proposed amendment needs the support of at least 50 lawmakers in both the current legislative session and the 2007-2008 session. It would then be added to the constitution if a majority of voters approved it.

With the constitutional convention imminent, both sides have been ratcheting up the lobbying: Mineau was rounding up support in the State House yesterday at the same time one gay-rights group was handing out elaborate packets to legislators that compared Mineau to a character in ``The Twilight Zone."

All eyes are now on the Legislature, particularly on Senate President Robert E. Travaglini, who will preside over tomorrow's session. Travaglini has been largely silent about whether he will insist that an up-or-down vote be taken. The uncertainty has prompted several leading political and community leaders to publicly call on the Legislature to hold the vote.

Despite yesterday's ruling, proponents of gay marriage were heartened by a concurring opinion written by justices John M. Greaney and Roderick L. Ireland that questions whether the proposed ban, if approved in 2008, would be constitutional.

Venturing beyond the scope of Reilly's certification of the ballot question, Greaney wrote that the 2003 decision legalizing same-sex marriage might be ``irreversible" if the proposed amendment was held by the court to violate existing provisions in the constitution that guarantee equal rights.

``The only effect of a positive vote will be to make same-sex couples, and their families, unequal to everyone else," he wrote. ``This is discrimination in its rawest form."

Andrew Koppelman, a professor of constitutional law at Northwestern University and a supporter of same-sex marriage, said after reviewing the decision that the logic of Greaney and Ireland was puzzling, because amendments to constitutions often repeal prior provisions. ``I just don't see how you can coherently say that an amendment to the state constitution is unconstitutional," he said. ``It changes the constitution."

Meanwhile, the Catholic Action League blasted a full-page ad in yesterday's Globe, signed by 165 prominent business and civic leaders, that calls on lawmakers to reject the proposed gay-marriage ban. The league's executive director, C.J. Doyle, singled out two signatories, Patriots owner Bob Kraft and Stacey Lucchino, who is married to Red Sox chief executive Larry Lucchino.

``One marvels at the brazen effrontery of the leadership of the Patriots and the Red Sox, both of whom have gone to the Legislature seeking special interest handouts from the taxpayers, now complaining that the General Court has more important issues to worry about than the definition of marriage, the bedrock of our social order," Doyle said in a statement.

Scott Helman can be reached at

Related content:
 Read the Supreme Judicial Court's decision
(Click on "Opinions" and then on the court case: Johanna SCHULMAN vs. ATTORNEY GENERAL & another [FN1]; Raymond Flynn & others, [FN2] interveners. SJC-09684 July 10, 2006.)
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