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September 08, 2005

Anti-marriage amendment on its way to the SJC and to the streets

As predicted, gay marriage backers have said they'll challenge AG Tom Reilly's decision to certify the anti-marriage amendment in the SJC.  So the battle now proceeds on two fronts: the anti-marriage activists will take to the streets to collect the nearly 66,000 signatures they need, and both sides will slug it out in court.

Having read the certification decision (written by Assistant AG Peter Sacks, a long-time AG's office employee whom I don't know well but have met and consider to be a lawyer's lawyer with no agenda-driven axe to grind), I must say that I found it pretty persuasive.  Sacks sets forth fairly compelling evidence that the "reversal of a judicial decision" language refers to actually undoing the effect of a court judgment (also called "recall"), not to revising the terms of the constitutional provision that led to that judgment.  The difference is this: under judicial recall, Hilary Goodridge and the other plaintiffs in Goodridge would be deprived of the effect of their having won their lawsuit.  Under a constitutional amendment, Goodridge and the other plaintiffs keep their victory, but future litigants will not be able to win the same case because, in effect, the ground rules will have changed.  This actually makes sense if you think about it.  It would be very bad policy indeed to permit a popular vote on the merits of a particular judicial decision so as to affect the rights of the individual litigants - that's a clear separation of powers violation (and it is probably why the anti-marriage activists specified that existing marriages would not be affected by their proposed amendment - Hilary Goodridge won her case and she cannot be deprived of that victory after the fact).  It seems much less objectionable to allow a popular initiative to amend the Constitution for any reason, whether because of dissatisfaction with a particular court case or otherwise.  Article 48 is in the Constitution precisely to allow "the people" to have their say on state law and the state Constitution if they can show the required level of support both among their legislators (via votes in the ConCon) and among their fellow citizens (via gathering signatures).  It would be kind of weird to say that that procedure is not available precisely when it is "needed" the most - i.e., when a court has issued a constitutional decision that a constitutionally-defined critical mass of citizens finds objectionable.

Anyway, the SJC will sort this out (though not for a few months).  Look for them to affirm Reilly's decision.  Which means that this battle moves to the court of public opinion.  And there are a couple of interesting developments there.  First, Deval Patrick and Bill Galvin have both weighed in on Reilly's action.  Patrick says Reilly did the wrong thing.  For the reasons set out above, I'm not sure Patrick is right about that.  Galvin, on the other hand, doesn't take a position on what Reilly did, but says that people should vote against the petition, and that the campaign to put the amendment on the ballot will be divisive for no good reason, because gay marriage "has been around for a year and any honest person can conclude that it has not been detrimental to society."  [UPDATE: The Herald quotes Reilly as saying "I don't agree with" and "I don't support" the amendment, so it appears that all three Dems are against this amendment on the merits.]

Wow - strong words from Mr. Galvin!  If he keeps talking like that - and if he actually decides to enter the race for Governor - we could have a terrific battle for the Democratic nomination on our hands.  Reilly, the cautious establishment candidate with a ton of money and the backing of the party machine.  Patrick, the progressive outsider with the grassroots strategy, the compelling personal story, and the inspiring style.  And Galvin, the consummate insider playing the populist card who tries to peel off enough liberals from Patrick and enough establishment types from Reilly to make a go of it.  That would be a good one to watch.

The second development, noted by the Herald, is this website called "know thy neighbor."  The website's mission is to post on the internet the names and addresses of the individuals who choose to lend their names to the effort to put the anti-marriage amendment on the ballot.  These signatures, of course, are public information, and there seems to be no legal basis to prevent this from happening (Galvin, whose office is in charge of the signature-gathering process, said "That is fine. That is the American way if they want to do it."). 

Kris Mineau, the amendment's chief backer, expressed faux outrage at this "intimidation."  But the information is public by law, and it's not reasonable to expect public information to stay off the internet these days.  Moreover, altering the state Constitution is a big deal, and if the backers of this (or any) constitutional amendment can't find 66,000 Massachusetts residents who feel strongly enough about doing so that they're willing to make their support public, then maybe the measure shouldn't be on the ballot after all.

So the stage is set.  Look for signature gatherers in your local supermarket parking lot starting in two weeks.  Talk to them, and to the protesters who will inevitably be there too (maybe you'll be one of them).  Be polite, but be forthright.  Let's try to have a civic dialogue about this issue.

Posted by David at 12:49 PM in Massachusetts | Permalink

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» The Ballot Initiative from Left Center Left
Yesterday, a friend emailed a facetious response to news that AG Tom Reilly has certified a constitutional amendment initiative to ban gay marriage in MA: 2008 will be fun. Indeed. I'm not excited about the prospect of the protraction of [Read More]

Tracked on Sep 8, 2005 4:53:34 PM

» Blue Mass. Group on the Anti-Gay Marriage Amendment from The Eisenthal Report
David of Blue Mass. Group has written an excellent analysis of the legal issues and the politics of the anti-gay marriage amendment proposed to be placed on the Massachusetts statewide ballot in November 2008. He confirms that the legal reasoning [Read More]

Tracked on Sep 8, 2005 9:24:23 PM

Comments

Unfortunately, I really doubt that knowthyneighbor will promote "civic dialogue" -- probably just get a lot of people to yell at each other. Not a good strategy, I don't think, regardless of the legality.

The people who want to end the culture wars will have to lead by example in this case. They'll just have to be *nicer* than the anti-marriage folks, even and especially in their dealings with them on a day-to-day basis. We'll need to keep it positive.

Posted by: Charley on the MTA | Sep 8, 2005 2:49:47 PM

I don't see a problem with posting the names. It is legally available and can be re-produced for access on a website. What strikes me is the belief by some that somehow it's negative if your name appears. It seems to some that those who may support this are bigoted, are against civil rights, and are fervent in their "hatred" or animosity towards SSM. On the contrary, 3 Justices of our Supreme Judicial Court, reputable and honorable people had a disagreement with the majority by one vote. Because a judicial decision was rendered, the Legislature, outside of the rules of amending the constitution through the con/con process, as Representatives of the people, were shut out from deciding the monumental public policy ramifications of SSM and to legislatively craft an amendment to our statutes resolving all of the initial issues around rights and obligations. The Representatives of the people being excluded, the only alternative for the participation of the people is through the constitutional amendment process, to heard once and for all on the issue. The interesting thing is that the compromise amendment is better than the alternative fr pro-SSM forces because the signatures will be gathered regardless of the web-names issue, 51 votes will be garnered in 2 sessions and this will be before Mass voters, who regardless of the PR firms nationally that will rolling out those tv ads of SS couples with their children, it will pass by a slight margin, they may not sign those petitions, enough will do that, but when they go into the booth, they're voting the way they think is right and they're following suit with the rest of the people who voted on this nationwide.

Posted by: john galway | Sep 8, 2005 3:55:24 PM

David,

If it is legal to put forward any kind of amendment like this that takes away existing constitutional rights specifically from a minority group, then the Massachusetts amendment process is EXTREMELY frightening. Popular opinion can become a lynch mob at any given time. What if there were a petition right after 9/11 to strip Muslims of all rights?

John Galway,

Yes, wishing to deprive equal rights to a group of people who are doing you no harm IS bigotry and animosity. Sorry to inform you.

Posted by: ryvr | Sep 8, 2005 5:08:05 PM

perhaps i don't have the requisite knowledge of the constitution / legal training, but i thought we already have a process for amending the constitution - i.e., the constitutional convention mechanism? seems to me that the AG's reading of the provision prohibiting ballot petitions from overruling court decisions merely allows the anti-marriage folks a "backdoor" around the constitutional convention mechanism. for that matter, two can play that game, and i don't see why MassEquality or FMC or some other such group doesn't support a pro-marriage amendment using the same mechanism. it's not too late, is it? we'll win that fight, probably 55-45.

another angle to this one is the political one: this reading of the provision sounds like quite a lot of legal gymnastics to reach the conclusion. i think Reilly wanted to reach this conclusion and instructed his office to find a way to do so. i don't really buy his i'm-against-the-amendment-but-honor-bound-to-certify-it schtick one bit.

as for knowthyneighbor: this is a horrible idea! sure the information is public knowledge. so what? it's needless antagonism, and i shudder to think of the day when petition-signers of all stripes will be subject to this kind of public scrutiny. imagine signing a pro-gay righs petition in kansas, and then finding your name trumpeted in the newspaper the next day? there are ways to make it harder to do this kind of thing - for example, passing laws against it, or by simply making the lists expensive to get (as is done for voterfiles). i don't know the precedent for managing petitioner lists, but i think Galvin should do what he can (within the spirit and letter of the public disclosure law) to hinder the knowthyneighbor site.

Posted by: Shai | Sep 8, 2005 5:33:21 PM

What we also need to do is have the state DOR determine that Catholic and other Churches that pass out this petition during service or inside their church lose their tax-exempt status.

ALSO - every signle gay person in this state who knows a gay priest needs to go to that clergyman and tell them if they help with this - then they will be outed.

This is friggin' ridiculous.

Reilly can kiss his political career good-bye

Posted by: Wayne | Sep 8, 2005 6:16:48 PM

Wayne:
Don't forget Orthodox Jewish synagogues, certain Protestant denominations, Mormon tabernacles, Muslim Mosques, c'mon man I thought you were a politically-correct dude, it's not just Catholics that oppose Homosexual Marriage. As for reilly, man, it's good to see someone who follows his oath seriously. Doesn't the Travaglini Compromise sound better now? At least that allows full & equal rights to homosexual couples.

RYVR:
If civil unions in the Travaglini Amendment provide every right under Massachusetts law to homosexual couples, how is it discriminatory to support that. Isn't it only semantics dude, I mean we're talking about rights, etc or is it now acceptance by all of homosexual MARRIAGE.

Posted by: john galway | Sep 8, 2005 6:48:22 PM

Wayne:

You're an anti-Catholic bigot; do me a favor and spread that idea about outing the clergy because I want them all cleaned out so the remaining 99% of the good priests can continue to do their work.

Posted by: John Galway | Sep 8, 2005 6:53:42 PM

People are assuming that just because the anti's get their signatures into Galvin that there will be a vote.

As to whether Reilly's decision was the legally correct one, there's a parcel of lawyers who said the opposite conclusion was correct.

So, what made the difference to Reilly?

He'll have to spend lots of that campaign money trying to convince people that it was not his own bigotry or political calculations.
-

Posted by: Marcy | Sep 8, 2005 8:33:39 PM

People are assuming that just because the anti's get their signatures into Galvin that there will be a vote.

As to whether Reilly's decision was the legally correct one, there's a heap of smart lawyers who said the opposite conclusion was correct.

So, what made the difference to Reilly?

He'll have to spend lots of that campaign money trying to convince people that it was not his own bigotry or political calculations.
-

Posted by: Marcy | Sep 8, 2005 8:34:46 PM

Unfortunately, John Galway is right. People will vote against gay marriage if they have the chance.

Marcy
for every lawyer that says reilly is wrong, there are 2 that say he is right. Even David agrees Reilly had l;egal ground. I am not sure what the standard of judicial review is on this. Perhaps someone has some info.

Wayne
You sound like the hater people on this blog want to think I am.

Posted by: The troll | Sep 8, 2005 10:23:11 PM

So let's line up the lawyers and then do a head count.

No, the point was, there was a legal basis for ruling either way.

Reilly picked this way, and now he has to spend some of his cash to convince a huge part of the electorate that it was not his campaign considerations that made him chose this way.

So maybe he'll be heard in the midst of the ugly campaign that will come as a result of the certification, maybe not.
-

Posted by: Marcy | Sep 8, 2005 10:55:06 PM

What if there were a petition right after 9/11 to strip Muslims of all rights?
That, actually, would not be permissible because Article 48 excludes matters that "relate to religion." That, incidentally, is the provision Reilly invoked to keep the stem cell referendum off the ballot - a decision for which, as you'll recall, Reilly received much criticism for being political from the same crowd that is now praising his dispassionate legal analysis. The simple fact is that legal issues and political issues don't track conveniently, so for any legal decision Reilly makes, those who agree with it praise his legal acumen, and those who disagree with it criticize his political hackery. Give the guy a break - he's trying to do his job, and in this instance he appears to me to have done it. There may be good reasons that Reilly should not be the Democrats' nominee for Governor, but this certification decision is not one of them.

Posted by: David | Sep 9, 2005 12:33:41 AM

David, you are what good lawyering is all about. I just read the letter. This was far from an unreasonable conclusion. I had litte understanding of what the law was or what Relly had to base his ruling on. Makes sense. It is a shame that people, on so many many issues, will not give any credibility to a court decision or in this case ag opinion (not technically an ag opinion) which has a result then they want.
Can't wait to see the SJC decision. Will there be split decision?


Regarding the posting of names, it seems more of an imtimidation tactic. Of course they should be able to post them but I wonder if fear of reprisal rather then any embassremsnt will keep people from signing.
Could this backfire and cause many to search out petitions and sign just to stand up to intimidation?

Posted by: The troll | Sep 9, 2005 11:09:06 AM

They've gotten certified and they'll probably get the 25% of legislators that they need at the successive Con/Cons.

BUT...

by 2008(ish), when this matter finally comes before the voters on the ballot, who knows where popular opinion is going to be? Assuming there's no other change between now and then and SSM has been legal and available for 4 years, will people be as fervently opposed as they are today? Some will, certainly, but others will be less likely to buy into the "ruin of society" rhetoric.

I have no idea if this will or won't be the case, and I'd rather not see it on the ballot, but lord knows a lot can change in 3 years.

Posted by: eury13 | Sep 9, 2005 12:04:03 PM

Will there be split decision?
I doubt it. I expect 7-0 to uphold Reilly's action. But it'll take months.

Seems to me the battle ought to be the signatures (they'll undoubtedly muster 51 votes in the legislature). 66,000 isn't a huge hurdle, but it's significant, especially if there are pro-marriage people in the supermarket parking lots too, peacefully holding signs or leafletting or otherwise making their views known in a respectful way. And if the Catholic Church is allowed to enter the debate in favor of the question without endangering their tax-exempt status, seems to me that the liberal churches and synagogues should be just as free to do the opposite, and they should be encouraged by their members to do so.

Posted by: David | Sep 9, 2005 8:06:39 PM

I did some research into the legal nature of knowthyneighbour.org's actions - and can't find any one law that would declare what they're doing to be illegal or unconstitutional.

However.

They did make a slight misstep. And the letter that was sent is posted below. Feel free to do with this letter as you please.

Dear Sir(s), Madame,

It has come to my attention that your site posts information about citizens of Massachusetts who signed a petition revoking the civil union law passed in MA. Granted, you took this information from Attorney General Tom Reilly's website, but you are publically sharing the material nonetheless (Both state & federal level governments can publish particular information they may receive via the Public Records Law).

Which brings me to my point:

I recently visited http://www.internic.net/whois.html, which allows visitors to view the personal information for the owners of any given domain. Much to my surprise, your information was hidden by an "Identity Shield" service provided by a third party, http://whois.nameview.com.

This strikes me as a rather hypocritical action; you are publically listing the personal information of other people, while refusing to provide such details about yourself. The information listed on your website includes home addresses for others, while your own contact page lists only a post office box and two email addresses. Post office boxes are highly suspect proofs of legitimacy as many retailers refuse to ship to them, since it can be difficult to verify the identity of the post office box owner.

Of course, that is rather tangential, but my main point does persist. Do you not see a certain level of hypocrisy here? "We'll post information on anyone who signs this petition we disagree with, but we'll do everything possible to cover up our own identities." All the names listed on the petition posted on your website included their mailing addresses willingly. Perhaps it might make you look a little more dignified if you were able to exhibit the same level of character.

Thank you for your time,

Ilya Popov
ilyapopov( a t )comcast(d0t)net
Registered Democrat
Needham, MA

Posted by: Ilya Popov | Sep 13, 2005 11:39:18 PM

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