Yesterday, there was a press conference in Boston, held by Governor Mitt Romney and Cardinal O'Malley on the issue of a constitutional amendment to the Massachusetts Constitution that would ban gay marriage.
Seeing the state executive and a clergyman together behind a podium, discussing a state law that would deny the citizens of this commonwealth their lawful rights was an image that disturbed me. It stuck with me for the last twenty-four hours. I couldn't put a finger on why, only that there was something that was deeply wrong.
Continued on the flip side...
At issue here is a petition, a referendum, a constitutional convention, and an amendment.
Two and a half years ago, the state Supreme Court ruled that there was no constitutional reason why same-sex marriages could not take place (cue the predictable wingnut response about activist judges). Since then, there have been an number of attempts to reverse this ruling. Because the court ruled on a constitutional issue, the only recourse was a constitutional amendment.
The Petition
Opponents of gay marriage in Massachusetts circulated a petition that would compel a referendum on the issue. Should the referendum pass, the General Courts (state Senate and House of Representatives) would then be compelled to add an amendment to the state constitution banning same-sex marriage. As of December 2005, the petition contained 123,000 names.
The Referendum
Also known as "tyranny of the minority": should 25% of legislators (40 senators, 160 representatives) vote for an amendment in two consecutive legislative sessions, the issue will come up for a referendum in November 2008. At least 30% of those casting ballots in that election need to vote for the affirmative for the amendment's mandate to pass. (Note: I can't find the source for that 30% figure and I've seen others that state a simple majority is sufficient...I'll update this in the morning)
The Constitutional Convention
This year's ConCon was scheduled for May 10th but has been postponed until July 12 because of George Takei's scheduling conflicts. No, seriously, GLAD filed a lawsuit that needs to be resolved before the convention.
The Amendment
The amendment has yet to be written, but a reading of the Constitution of the Commonwealth of Massachusetts turns up some interesting things. This is the oldest functioning written constitution in the world. It was drafted by John Adams, Samuel Adams, and James Bowdoin, and it reads like a first draft of the Constitution of the United States.
Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. [Annulled by Amendments, Art. CVI.]
Article II. It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship. [See Amendments, Arts. XLVI and XLVIII.]
[...]
Any every denomination of Christians, demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law: and no subordination of any one sect or denomination to another shall ever be established by law.] [Art. XI of the Amendments substituted for this].
These articles from the section entitled A Declaration of the Rights of Inhabitants were amended during the late Nineteenth and early Twentieth Centuries, substituting language that was much more agnostic with regards to religious denominations. For example, Article I became this:
All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.
Article II was changed thus:
Section 1. No law shall be passed prohibiting the free exercise of religion.
Section 1. Contents. - An initiative petition shall set forth the full text of the constitutional amendment or law, hereinafter designated as the measure, which is proposed by the petition.
Section 2. Excluded Matters. - No measure that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal, recall or compensation of judges; or to the reversal of a judicial decision; or to the powers, creation or abolition of courts; or the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth; or that makes a specific appropriation of money from the treasury of the commonwealth, shall be proposed by an initiative petition; but if a law approved by the people is not repealed, the general court shall raise by taxation or otherwise and shall appropriate such money as may be necessary to carry such law into effect.
Neither the eighteenth amendment of the constitution, as approved and ratified to take effect on the first day of October in the year nineteen hundred and eighteen, nor this provision for its protection, shall be the subject of an initiative amendment.
No proposition inconsistent with any one of the following rights of the individual, as at present declared in the declaration of rights, shall be the subject of an initiative or referendum petition: The right to receive compensation for private property appropriated to public use; the right of access to and protection in courts of justice; the right of trial by jury; protection from unreasonable search, unreasonable bail and the law martial; freedom of the press; freedom of speech; freedom of elections; and the right of peaceable assembly.
No part of the constitution specifically excluding any matter from the operation of the popular initiative and referendum shall be the subject of an initiative petition; nor shall this section be the subject of such a petition.
The limitations on the legislative power of the general court in the constitution shall extend to the legislative power of the people as exercised hereunder.
Now, I'm not a constitutional scholar by any means, but doesn't that third paragraph, the one that begins "Section 2. Excluded Matters" cover religion, religious practices, or religious institutions?
If a same-sex marriage ban wasn't an religious issue, what was the Cardinal doing on the podium with Governor Romney yesterday?
I'll tell you why...
The Players
Cardinal O'Malley
It's been a few years since the Catholic clergy sex abuse scandals broke in Massachusetts. Cardinal Law was recalled to the Vatican, and then Bishop O'Malley took his place. An ascetic, recently made a Cardinal, O'Malley has had the unenviable position of one who has to heal his flock with one hand and close parishes with the other, parishes that can't afford to operate due to a funding crisis in the Church caused by multi-million dollar settlements granted to victims of clergy sex abuse.
The conventional wisdom is that Cardinal O'Malley is a shrewd man in tune with his parishoners, the majority of whom are in favor of this constitutional ban. Supporting this issue is a way of distracting his flock from further church closings.
Governor Mitt Romney
It's no secret that Mitt Romney has been positioning himself as a presidential candidate in 2008. In order to present himself as a viable candidate, he has to appeal to issues voters, many of them Evangelical Christians who would write him off because of his Mormon faith. Presiding over the one state that allows same-sex marriage is a no-no, so supporting a constitutional ban would be a win for him. If the referendum is voted down, or if the General Courts (largely Democratic) votes against, he gets off scot free. After all, he can point to that liveshot he did with the Cardinal.
So, there. Same-sex marriage has become a presidential political football. It's Mitt Romney posturing for Iowa and New Hampshire, and a Cardinal trying to save face. If the amendment is enshrined in the oldest living constitution in the world, citizens of this Commonwealth will be stripped of their lawful rights. All because of political ambitions.
And that's not right.