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.