The Massachusetts legislature is scheduled to meet this week to consider a Constitutional amendment which would define marriage as one man and one woman. The amendment needs only 50 (out of 200) votes to move forward. If it gets 50 votes, it will be presented to the Legislature again next year, and if it again gets 50 votes, it will be put to the voters in 2008.
When Attorney General Tom Reilly certified the petition that allowed for this amendment to be considered, he was criticized by many, inlcuding former AG's (and me). Today the SJC ruled that Reilly was correct. There is however an interesting conclusion to the SJC's decision.
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The bad part:
There was no error in the Attorney General's certification of the petition. We remand the case to the county court for entry of a judgment declaring that the Attorney General's certification of the petition is in compliance with the requirements of art. 48.
The good part
There can be no doubt after the Goodridge decision that the Massachusetts Constitution protects the right of a couple who wish to marry, and are otherwise eligible to marry, to obtain a marriage license, regardless of gender. It is equally clear that the proposed initiative is directed toward withdrawing this right from a distinct segment of our community, thereby prohibiting, as matter of constitutional law, same-sex couples from committing to civil marriage and from attaining the multitude of legal rights, and financial and social benefits, that arise therefrom. The proposed initiative cannot be said to further a proper legislative objective (as was categorically decided by the Goodridge court, there is none [FN1]). The only effect of a positive vote will be to make same-sex couples, and their families, unequal to everyone else; this is discrimination in its rawest form. Our citizens would, in the future, be divided into at least three separate and unequal classifications: heterosexual couples who enjoy the right to marry; same-sex couples who were married before the passage of the amendment (but who, if divorced, would not be permitted to remarry someone of the same sex); and same-sex couples who have never married and, barring the passage of another constitutional amendment on the subject, will be forever denied that right.
And the SJC ends with this warning:
UPDATE: As pointed out, this is wording from a concurring decision joined by only two justices.
Put more directly, the Goodridge decision may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative and the fact that the Goodridge holding has become part of the fabric of the equality and liberty guarantees of our Constitution. If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable. [FN2] We may then give careful consideration, in view of what has been said above, to the legal tenability and implications of embodying a provision into our Constitution that would look so starkly out of place in the Adams Constitution, when compared with the document's elegantly stated, and constitutionally defined, protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits., [FN3]
I'm no lawyer, but the SJC seems to be warning all parties that this Amendment would be in conflict with the spirit of the State Constitution, and so even if it is approved the SJC may very well invalidate it.
Here is the link to the SJC. The opinion is linked off the first page "Johanna SCHULMAN vs. ATTORNEY GENERAL": SJC Decision