By Dan Kennedy • The press, politics, technology, culture and other passions

More on the marriage ban

David, you’ve got to read this: CommonWealth Magazine editor Bob Keough recommends a 2002 essay by former state legislator John McDonough that explains why it’s so hard — and why it should be so hard — to amend the state constitution by citizen petition. “The process for putting matters before the voters is layered with nuance, booby traps, court rulings, and intrigue,” McDonough writes. And that’s the way it should be.

Same-sex-marriage opponents — as well as a few supporters, such as David Kravitz of Blue Mass Group and Boston Globe columnist Scot Lehigh — are outraged that the Legislature failed to do its supposed constitutional duty last week by holding an up-or-down vote on a gay-marriage ban. Only a quarter of the Legislature, meeting as a constitutional convention, needed to vote “yes” in order to move it on to the next session. If it then received 25 percent again, it would go on the ballot, and would become part of the constitution if it received a simple majority.

The Legislature, of course, avoided taking a vote by approving a motion to recess — something that requires a majority, not just 25 percent. Thus were lawmakers able to kill the amendment through a parliamentary maneuver — something they’ve done on numerous occasions over the years on a wide variety of measures.

Well, here’s what McDonough has to say about that:

By collecting valid signatures equal to 3 percent of voters in the previous gubernatorial election, proponents can submit their proposed amendment to the Constitutional Convention. If at least 25 percent of senators and representatives vote, in two conventions in a row, to allow the amendment to appear on the ballot, the people vote on it in the next general election. But nothing compels the Constitutional Convention to take that vote. If the presiding officer — the Senate president — refuses to bring the matter up for action, no go, which is what happened this year to the marriage proposal. [McDonough is referring to an earlier attempt to ban gay marriage.]

That’s what I was trying to get at in this post last week. McDonough offers much more background and detail than I was able to bring to the table. Bottom line: It’s not “dereliction of duty,” as “Maverick Dem” would have it, for the constitutional convention to follow the normal and customary rules of parliamentary procedure.

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5 Comments

  1. Robert Keough

    Dan — thanks for the link to our article. I just want to add that McDonough’s overall point, which is relevant to this discussion, is that there is a built-in ambivalence toward “direct democracy” in Massachusetts’s citizen initiative process, and that ambivalence has served the state well overall. Ballot activists may decry the Legislature’s ability to kill a constitutional amendment petition without even taking a vote, but it is one of the reasons that Massachusetts has never been as ballot-question crazy as states like California, Arizona, and Oregon, where all it takes to put a constitutional amendment on the ballot is a few more signatures. In these states, new (and sometimes contradictory) provisions get tacked on to their constitutions all the time, binding lawmakers’ hands and whip-sawing state politics all over the place. Here, citizens are able to put forward their own proposed laws (and even, with more difficulty and less certainty, constitutional amendments) without turning representative democracy upside down. As legal scholar Alec Gray (quoted by McDonough) puts it, referring to the section of the Massachusetts constitution outlining the citizen-initiative process, “The brilliance of Article 48 is its temperance.”

  2. RichC

    Sorry — you and the other lickspittles fop the legislature on this matter are continuing the beg the question.There’s nothing that you’ve said or that McDonough said that supports “nothing compels the Constitutional Convention to take that vote”. You both assert it, and you both say in effect “well, the Legislature uses parliamentary maneuvers all the time, and this is no different”, but neither of you provide any support for the assertion.This line of “reasoning” is especially repulsive because it it de facto writes the 25% rule right out of the Constitution. So explain to me what the point of the 25% rule is and why it is there in the first place if it can be trivially avoided by cowardly legislators?MaverickDem has it quite right when he says:However, that does not mean that the Legislature’s failure to act is not wrong or that the SJC endorses such an outcome. In fact, the 1935 opinion expressly states that there “must be final action.” Rather the Court appears to be saying in its 1992 holding that the issue is non-justiciable. It is the judicial equivalent of saying, “We do not believe that inserting ourselves into this particular debate is in the public’s interest.” Why? Because courts are reluctant to address political questions that may embarass or undermine the co-equal branches of government. Therefore, they may very well leave it to the people. However, the ballot box is not our only recourse. (Although clearly it is first and foremost on the hearts and minds of legislators, since they worked hard postpone this decision until they were least vulnerable to the voters.) Advocacy is also important, which is why I am making my opinions known now. Again, all of this goes to my fundamental argument that We, the People of Massachusetts are responsible to maintaining and preserving our constitutional democracy and guarding against the encroachments of the Legislature or whoever.What we need is the “Anti Legislative Cowardice Amendment”. It would say that if the Legislature fails to vote on a constitutional amendment proposed by petition, the amendment is deemed to be approved by the legislature.Of course, even if such a thing were proposed and got the signatures, the cowards on the Hill would illegitimately kill that off as well. *sigh*.

  3. Donna L. Halper

    So I guess you approve of the cynical political gesture by Governor Romney to call the legislature back into session. face it, guys– most people, other than some religious zealots, have moved on. Even my neighbours, who happen to mostly be in the older demographic and are all Catholic, fail to see why their tax dollars should go to fighting this battle all over again when pot-holes on major highways haven’t been fixed, there is no affordable housing anywhere, and people are struggling to pay their bills. I’m straight, and so help me, I can’t see how gay marriage has affected my life one iota. So, some gay colleagues of mine who had lived with their partners for years are now able to marry. What’s the problem? And what gives any of us the right to “vote” on another person’s civil liberties or legal rights? Gay citizens have been through enough. It’s time for some other issue to take up everyone’s time.

  4. Stella

    Banning the banns: Whilst maneuvering may lower the heat on the issue it doesn’t finalize it, which seemed to be Trav’s wish. I doubt that the issue would fly past the voters if on the ballot. It surprises me, apathetic about the issue, how fiery folks of a liberal bent can get when gay marriage turns up in conversation.

  5. Rich

    Looks like you apologists for the Legislature’s cowardice will have to find another fig leaf to cover your illegitimate arguments after the SJC shredded them today.While (not surprisingly) the buttinksy-on-everything-else SJC claimed it had no power to do anything about the Cowards On The Hill, it unambiguously said they violated the state Constitution.

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