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September 07, 2005
Reilly certifies anti-marriage amendment
Attorney General Tom Reilly has certified the proposed amendment to the state Constitution that would bar gay marriage and would not simultaneously create civil unions.
I haven't seen his explanation yet, and I look forward to reading his rationale for how it is that this proposed amendment does not constitute the reversal of a judicial decision (a subject that is excluded from the initiative process). In any event, look for a lawsuit to be quickly filed challenging his decision.
Since this is an initiative amendment, the process involves a good deal of signature-gathering (about 66,000), but relatively little legislative vote-getting. It must be approved by two successive legislatures, but "approval" in this case means getting only 25% of the vote (50 votes out of the 200 state legislators). One assumes that they'll be able to surmount that fairly modest hurdle.
Very probably, this is the death knell for the Travaglini-Lees "compromise," since the hard-core anti-marriage legislators are likely to join Mitt Romney in withdrawing their support for the compromise and backing this new one. Instead, we face a long and unpleasant slog as signature-gatherers and protesters take to the streets.
Posted by David at 02:38 PM in Massachusetts | Permalink
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Tracked on Sep 7, 2005 11:13:58 PM
Comments
This issue was settled. Gay marriages have no impact on anyone who doesn't want to deal with them. Why would Reilly do this? Shouldn't we be talking about REAL problems - like why every company in our state is being bought and moved, why we are losing population, why healthcare is broken? What a hack this guy is. He and Romney should run for president as a ticket.
Posted by: matthew | Sep 7, 2005 2:50:20 PM
Morals and ethics aside, is it illegal to sign a petition like this one with fake information?
Posted by: stomv | Sep 7, 2005 3:02:10 PM
Yes, I believe it is.
Posted by: eury13 | Sep 7, 2005 3:10:33 PM
What "fake information" are you referring to?
Posted by: David | Sep 7, 2005 3:11:07 PM
Politically, will this hurt him? Could it help him?
Maybe he thinks he has the money and organization to fend of primary challengers and that this will help him in the general?
Posted by: eury13 | Sep 7, 2005 3:12:51 PM
I could see this hurting him in both the primary and the general election (if he got that far). In the primary, this will drive social progressives (and some moderates)further into the Deval Patrick camp. If he makes it to the general, what would set him apart from Kerry Healey (almost surely the GOP nominee) on the touchstone issues (abortion, gay marriage) that many voters go on?
Can someone answer why this question will be on the ballot in 2008? Is that date constitutionally or otherwise mandated? It would be a stupid date to intentionally choose in such a blue state as this-- special interests like this usually work best in low-turnout elections (preferrably held in the dead of night).
Anyway, time is on gay marriage's side as more and more people come to realize (as Sens. Menard and Berry did today) that the sky will not fall.
Posted by: Nate Harris | Sep 7, 2005 3:51:54 PM
The 2008 date is because the legislature has to pass the amendment in two consecutive sessions, with an legislative election between them. The earliest they can hand this off to the legislature for a first vote is 2006. Then, it also needs to pass in 2007, after the new legislators are sworn in (not that there's ever much turnover in the lege, thank you Mr. Gerry). After it passes there, the first time it can be voted on in a statewide election is '08.
Posted by: sco | Sep 7, 2005 4:01:03 PM
Ahh, I see. thanks!
Posted by: Nate Harris | Sep 7, 2005 4:03:22 PM
The decision is at http://www.ago.state.ma.us/filelibrary/petition0502marriagecel.rtf
At a quick read, it appears to be a very technical document, 14 pages long, signed by Peter Sacks, the Deputy Chief of the Government Bureau.
Basically, the office looked at the history of Article 48 of the Amendments, and determined that "reversal of judicial decision" doesn't refer to what was going on here, but rather to a proposal by Theodore Roosevelt that was popular in the 1910's that would allow voters to implement laws that were struck down by the courts without amending the Constitution.
In other words, the provision in the Constitution prohibits an initiative to reinstate the law, but not a constitutional amendment that would reverse it.
And yes, Nate, it would be on the ballot in 2008 because it must receive 50 votes in the legislature TWICE, with an election in between, so the second vote wouldn't come until after the 2006 elections.
Posted by: PatrickA | Sep 7, 2005 4:09:01 PM
Seriously, I'm curious: why are you guys, who have the term 'democrat' in your party's name, proponents of using every single contra-democratic (http://www.massright.com/archives/2005/08/travaglinis_vot.html) force at your disposal to avoid letting the good people of the Commonwealth vote yea or nay on the subject?
Are you so interiorly convinced at your own ineptitude at persuasion, despite having a lock on local media? Or, do you honestly believe the majority of people are too stupid as to be incapable of seeing things your way? Or, could it be you have suspicions about the fundamental unjustness of the people?
Seriously. I'm curious. How do you get to be you, right now?
Posted by: jrp | Sep 7, 2005 4:09:36 PM
jrp,
there's a reason we elect representatives. I personally don't want every decision to come before me on the ballot because I have better things to do with my time. I vote for a representative and a senator to make those decisions on my behalf.
Then, when issues such as gay marriage come up (large, broad, defining issues), I make my opinion known to my legislator. I write a letter, hold a sign, post on a blog in the hopes that I can be one of thousands of people who can convince my elected officials that this is what the people want. The right does the same thing.
I lived for a few years in California where quite a few issues come before the electorate as ballot initiatives. I had the opportunity to vote on whether or not the LAX police would be a distinct entity or fall under the oversight of the LAPD. Do you have any idea how underqualified I am to decide this?
I am personally opposed to amending the Mass constitution with discrimination. I will stand up and oppose this every step of the way, and not just wait for the final ballot vote. I suspect that those on the right would act no differently if the situation were reversed.
Posted by: eury13 | Sep 7, 2005 4:28:29 PM
quick question (because I'm a bit ignorant on the matter): what are the AG's criteria for certifying an amendment proposal? Does it have to do with legality? Precedent?
Posted by: eury13 | Sep 7, 2005 4:30:25 PM
Dude, I didn't mean to steal your title. Yours is more accurate anyway, LOL.
To jrp: actually, I'm against ballot initiatives in general. God, if I had a nickel for every time I was supposed to vote on an important ballot issue, BINDING mind you, and was not able to get educated on time as to where my vote would be best...look, we vote for legislatures, so they can form committees and get educated about the issue at hand, and presumably (though not always in practice) make the best choice from the information available.
How was I supposed to know, several years ago, about whether or not to have English immersion classes? I'm not a damned teacher, principal, or foreign student. I don't know what's best for those students. I resent the idea that I'm asked for expertise that I don't have. That's why I vote for representation. So they can do a job.
Now, there's one ballot initiative I'm backing, the health care one. Why? Because I'm fucking uninsured and can't afford it on my own. The initiative puts pressure on the legislatures to do something meaningful. But I back the initiative on practical terms for that reason, not because I feel the "people need a voice." Come on, the people hardly show up for goddamned elections in the first place. I still do not like ballot initiatives.
Posted by: Lynne | Sep 7, 2005 4:36:07 PM
eury13,
From the AG's web site:
"The Attorney General must review all petitions filed to determine whether they meet certain constitutional requirements -- including, in particular, whether a petition addresses any subjects that the Constitution excludes from the initiative process. If the petition is certified as meeting the constitutional requirements, the Attorney General also prepares a fair, concise summary of the proposed law (or constitutional amendment) to appear on petitions for gathering additional signatures and on the ballot. The Attorney General's review process will be completed by September 7, 2005."
Posted by: PatrickA | Sep 7, 2005 4:37:22 PM
eury13: thanks for saying what I wanted to say but much more eloquently. ;)
Posted by: Lynne | Sep 7, 2005 4:38:05 PM
Good questions, jrp. Let's answer one:
"Do you honestly believe the majority of people are too stupid as to be incapable of seeing things your way?"
No.
---
The poll found 52 percent of respondents do not want to see the amendment on the ballot. Bay State pollster Russell K. Mayer, the director of the Center for Public Opinion Research at Merrimack College, said the response suggests a greater degree of acceptance for gay marriage.
"We have it. It's been happening. The sky is not falling," Mayer said.
---
"Or, could it be you have suspicions about the fundamental unjustness of the people?"
jrp: Why do we have a Bill of Rights? To protect minorities. You don't put civil rights up to a vote. Majority rule and minority rights, lynchpins of liberal (small "l") democracy. You can understand that, I think.
Posted by: Charley on the MTA | Sep 7, 2005 4:45:56 PM
PatrickA, thanks for the info.
So my question is now this - politics aside, did Reilly make the legally correct decision? Are there arguments either way or would one or the other require more hemming and hawing?
Posted by: eury13 | Sep 7, 2005 5:03:27 PM
I think, from reading the general gist, that Reilly could have come down against the ballot with plenty of law on his side. Just my uninformed nonlawyer $.02US.
Posted by: Lynne | Sep 7, 2005 5:11:04 PM
Did Reilly make the legally correct decision? What I've read of the document certainly suggests that this is the case.
The most relevant language comes from the Supreme Judicial Court's decision in 2000 concerning another ballot initiative (the Mazzone case).
"the constitutional convention intended no more than to prevent a statute, declared unconstitutional by a State court, from being submitted to the people directly and thereby reenacted notwithstanding the court's decision. Citizens could, effectively, overrule a decision based on State constitutional grounds, but they could do so only by constitutional amendment."
Had the AG's office gone ahead and invalidated the petition, the case would have been appealed, much like Mazzone, all the way to the SJC. The SJC would have likely upheld its previous decision, and ironically, paved the way for the potential overturning of its own decision in Goodrich.
Posted by: PatrickA | Sep 7, 2005 5:29:27 PM
So every step of the way, as the fight over this initiative gets uglier and uglier, taking time, money and energy from things that need to get done in this state, we can all remember who we have to thank for bringing our state to this low point.
Thank you, Tom Reilly.
-
Posted by: Marcy | Sep 7, 2005 9:15:45 PM
Although I lament Reilly's decision on a political level, I think his interpretation of the Mazzone language is a legitimate (although certainly debatable) legal decision.
What bothers me, though, is his less-than-convincing argument against the second legal reason for denying certification to this initiative amendment. If any question has already been certified in one of the previous two biennial election cycles, that question cannot be re-certified. Since Reilly certified a ballot question banning gay marriage in 2001, it seems pretty clear to me that Reilly cannot recertify this question until the next election cycle. Although Reilly suggests that the previous certification doesn't count because the legislature kept it from going to the voters, the constitutional language mentions nothing about the certified question actually being voted upon. Personally, I think this is the weakest part of Reilly's argument, but I'd love to hear from anybody who thinks I'm missing something.
Although I've recently decided not to support Reilly, I still retain quite a bit of respect for him. I'm especially wary of criticizing him for making a legal decision in his role as AG-- we should all want AGs who make decisions without regard to politics. However, when considering his legal justification for not counting the 2001 certification as a real certification, I begin to think that this is a wholly political decision dressed up in legal language. I guess I'm not surprised, but I am disappointed.
Posted by: harry | Sep 8, 2005 8:31:42 AM
harry,
The issue with the 2001 petition is not certification, but whether it "been qualified for submission or submitted to the people." Since it wasn't submitted to the people, the only question is whether it was "qualified for submission."
Based on a reading of the history of Article 48 of the Amendments, the AG's office determined that this was intended to apply to a situation such as the following: measure X was submitted in 2003, got 50% from the General Court in 2004 and 2005, which means that it would go on the ballot in 2006. In this case, certifying a petition for the same measure would be inappropriate.
Again, as before, if the AG's office had ruled otherwise, the case would likely have been reversed by the SJC.
Posted by: PatrickA | Sep 8, 2005 2:38:44 PM
Patrick: What does "qualfied for submission" mean? That doesn't mean certified?
I understand it was never submitted, but that is different from "qualified for submission" isn't it?
Posted by: zed | Sep 9, 2005 8:08:37 AM
Sorry, upon re-reading your last post, I see your explanation. Can you point me to the history of this term and how Reilly determined the meaning of it?
Posted by: zed | Sep 9, 2005 8:13:58 AM
The best place to look for an explanation is the AG's letter explaining the certification. Here is the link.
Posted by: David | Sep 9, 2005 9:52:37 AM
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