Marriage vote suit delivered to SJC

Governor Mitt Romney and a group of Massachusetts residents asked the state's highest court yesterday to override the Legislature and let voters decide whether to ban same-sex marriage, accusing legislative leaders of violating the state constitution by refusing to act on the proposal.

Romney, an outspoken opponent of gay marriage and a likely presidential candidate, and 10 other plaintiffs said legislators subverted the democratic process on Nov. 9 when they met in joint session as a constitutional convention and took no action on the ban. The Legislature voted, 109 to 87, to recess before taking a vote on whether to put the proposed amendment on the 2008 ballot.

"This is no longer just about gay marriage," Romney's spokesman, Eric Fehrnstrom , said of the suit filed with the Supreme Judicial Court. "It's about the right of the people to participate in their own government."

The suit said the Legislature's refusal to act on the measure marks the fifth time in 24 years that lawmakers had violated the constitutional provision that allows citizens to vote on amendments they initiated. Proponents of the same-sex marriage ban collected a record 170,000 signatures in hopes of getting the amendment on the ballot. But to qualify for a statewide referendum, the measure also requires the support of at least 50 legislators in two consecutive sessions .

The plaintiffs want the court to order lawmakers to vote on the amendment. If the Legislature does not act, the suit asks the justices to direct Secretary of State William F. Galvin to put the measure on the 2008 ballot anyway. The suit would be considered first by a single justice on the Supreme Judicial Court.

However, some specialists on Massachusetts constitutional law have said the lawsuit was premature and therefore unlikely to succeed. Legislators still have one day to vote on the same-sex marriage ban: on Jan. 2, the last remaining day for current legislators.

Even if lawmakers failed to act that day, it would not violate the constitution, said Renee M. Landers , who teaches constitutional law at Suffolk Law School and predicted that the SJC would side with the Legislature.

"The constitution requires them to consider the petitions that are proposed by initiative, but they don't have to vote to put them on the ballot," she said.

Arline Isaacson , cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, dismissed the suit as "just more of Mitt Romney's positioning himself nationally as the preeminent antigay presidential candidate. It helps him credential himself amongst conservatives in Mississippi, Alabama, and throughout the Bible Belt, but its real-world significance is . . . practically nothing."

However, one of the other plaintiffs, Raymond L. Flynn, a former Boston mayor , said in a statement that the news media and liberal Democrats underestimate the widespread support that the marriage ban has throughout the country. Flynn, a Democrat who also served as US ambassador to the Vatican, predicted that the proposed marriage amendment "will likely give Mitt Romney the Republican nomination for president of the United States."

Senate President Robert E. Travaglini , who presided over the Legislature's constitutional convention and is a defendant in the suit, could not be reached for comment.

In addition to Romney and Flynn, the plaintiffs in the suit include Roberto S. Miranda , chairman of VoteonMarriage.org, and C. Joseph Doyle , executive director of the Catholic Action League of Massachusetts. The Boston law firm of Hanify & King is representing the plaintiffs at no charge, Fehrnstrom said.

If Romney had filed the lawuit himself as governor, as some political observers had expected, he would have had to ask state Attorney General Thomas F. Reilly to represent him. Reilly has declined some requests by Romney to represent the administration in legal challenges to gay marriage, including an entreaty in September to appeal a Superior Court ruling that allowed same-sex couples from Rhode Island to wed in Massachusetts.

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