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

Further thoughts on Article 48

With the Legislature scheduled today, once again, to vote on a proposed constitutional amendment that would outlaw same-sex marriage, I want to develop a bit more fully an argument I offered over the weekend in the comments section.

Legislators face a difficult dilemma. Under the terms of Article 48 of the Massachusetts Constitution, they must vote on a citizen petition that would ban gay marriage. Just 50 of the 200 legislators — 25 percent — need to vote “yes” for the amendment to move on to the next session of the Legislature. If it gets 25 percent again, the amendment would go on the 2008 ballot, and would become part of the constitution if it received a simple majority.

The trouble is that though most legislators oppose the anti-marriage amendment, enough support it that the 25 percent hurdle can be easily met. That’s why the Legislature voted to go into recess rather than hold a vote back in November. But using such parliamentary tactics became more difficult last week when the Supreme Judicial Court ruled that the Legislature must hold an up-or-down vote on the merits of the amendment itself, even though the court acknowledged there is no way to enforce its ruling.

The court’s decision naturally provided a boost to the anti-marriage crowd. But it also bolstered the position of process liberals like the bloggers at Blue Mass Group, who believe the right thing to do is for legislators simply to vote down the amendment, thereby preventing its appearance on the 2008 ballot. A nice thought, but, as Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, tells the Boston Globe, there’s no way the pro-marriage majority can muster the 75 percent it would need to defeat the amendment.

Bay Windows editor Susan Ryan-Vollmar, writing for Media Nation, and the Outraged Liberal, in a post on his own blog, have called for the Legislature to defeat the amendment by any means necessary — that is, to defy the Supreme Judicial Court and kill the marriage ban by staying home or by voting for another recess. I agree. And though I don’t expect to change anyone’s mind, I hope that by the time you finish reading this, you’ll at least have a better understanding of what the real issues are.

I’m not a fan of argument by analogy. Often, it’s the next-to-last refuge of a scoundrel. (Here is the last.) But in this case I think it may be useful to offer a comparison to slavery.

Let’s say a group of citizens began a petition drive to enslave all Massachusetts residents of African ancestry. Let’s say they got more than enough signatures to place the matter before the Legislature. Now, many analogies fall apart for lack of logic, but I think this holds up pretty well. As with the anti-gay-marriage amendment, a slavery amendment would subject the rights of a minority group to the whims of the majority, and take away existing rights. And the analogy also works because the whole point of a constitutional amendment is that it can literally be about anything.

Now, it’s true that the Massachusetts Constitution does not allow citizen-initiated amendments about certain matters. (Read this and ask yourself how the anti-marriage measure passed muster, given that it would essentially overturn the SJC’s Goodridge decision, which legalized same-sex marriage.) And it’s also true that a state amendment to bring back slavery would be overruled because it conflicts with the U.S. Constitution.

But the principle holds. In fact, it would be perfectly legal to amend the U.S. Constitution to reinstate slavery. No, my analogy isn’t perfect, but it’s not bad. So bear with me and assume, for the sake of this exercise, that a slavery amendment can be properly put before the Legislature, and that 55 or 60 legislators — more than 25 percent — have already announced their intention to vote in favor.

What should a good, decent anti-slavery legislator do? Should he insist on a floor vote, in accordance with Article 48, and hope against hope that the amendment would fail to get 25 percent? Or should he do anything he could to kill the amendment, even if it means defying the Supreme Judicial Court and thus violating the Massachusetts Constitution?

I would suggest that every responsible member of the Legislature would take whatever action was necessary to kill such an amendment, and not worry about the niceties of Article 48. And I would hope that Blue Mass Group, Boston Globe columnist Scot Lehigh and other process liberals would applaud.

Now, if you think my analogy makes any sense, then you must conclude that the reason legislative defiance seems unwarranted in the case of the anti-gay-marriage amendment is that we do not take gay and lesbian equality as seriously as we do the rights of African-Americans. Thus, the matter before the Legislature today comes down to a moral judgment — i.e., which group we think is more deserving of our outraged indignation.

Two other matters:

First, several Media Nation commenters claim that referring to legislative defiance as “civil disobedience” bestows a grandeur that is undeserved, since there are no consequences anyone must pay for his or her refusal to vote. In fact, as the SJC pointed out, legislators can be voted out of office if their constituents don’t like what they’ve done. The fact that this rarely happens doesn’t mean it’s not a possibility. That’s how we hold people accountable in a representative democracy. We received a lesson in that recently, as the death of former president Gerald Ford occasioned a re-examination of his pardon of Richard Nixon, which almost surely cost Ford the election in 1976.

Second, as Lehigh, Globe columnist Jeff Jacoby and others have correctly pointed out, the Legislature’s refusal to act on the anti-marriage amendment (and many other amendments over the years) amounts to a de facto repeal of Article 48. I suggest that the way to fix this is (yes) through a constitutional amendment. There is a deep flaw in a constitutional provision that forces the Legislature to act against a majority of its members’ wishes and to suspend its own rules and procedures — such as the right of any member to file a motion to go into recess.

The 25 percent minimum should be eliminated and replaced with a simple majority requirement. That way, everyone would know the rules. And citizens would have a meaningful right to amend the constitution.

Update: Bay Windows is blogging the constitutional convention here.

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And so it ends


  1. leftsezfred

    I find it frustrating that most media reports of the convention fail to note the 25% minimum, leaving the impression that the gay-marriage supporters are the minority pulling some kind of shifty beauracratic maneuver rather than reflecting the view of a considerable majority. The fact that several supporters of the amendment lost their seats in the legislature never gets mentioned when the SJC’s remark about “facing the voters” is mentioned. This shows how bad the local reporting is in this town.

  2. blog guy

    Seems your slavery analogy falls badly apart simply because slavery is such an outrageous example. Civil war and all that.Gay marriage is such a fringe issue, with two distinct minorities, loudly arguing their perspective. I think the better analogy is say, a Constitutional amendment to initiate a progressive tax system in Massachusetts. The rich will argue that they aren’t treated equally by being compelled to pay a higher rate and the poor will argue that progressive tax is more fair. The majority of the population won’t care because it won’t affect them by much.That’s gay marriage: 2 sides who care and the greater population that has no strong opinion.Imagine the absurdity of a recess in lieu of a vote on the prgressive tax issue. It’s no less absurd to vote on gay marriage. It’s the Representative whose job it is to parsel out votes, not figure out ways to avoid the task. The representative has the choice of taking the hard vote in opposition to the majority (leadership) or voting with the majority (representation). Avoiding the vote is neither.

  3. Al Toid

    The progressive tax analogy ignores the whole issue about removing rights from a group of people.

  4. Harry

    I see this as a very weak argument, Dan, though I doubt you are a scoundrel. What you refer to as “the niceties of Article 48” is a process and, yes, an imperfect one, like any. But we create processes of law because we disagree about how people should be treated by each other and by the state. We use the “niceties” of process to manage and resolve these disputes. One cannot dispense with an oath to follow the Constitution and its due process by appealing to some higher responsibility or conscience. The oath of office is to support the Constitution. If they cannot abide that in their own conscience, they are free to resign their office to keep their conscience clear. But they cannot remain in office while disobeying both the SJC and the Constitution without being liars who lack honor.

  5. Al Toid

    Harry,Why not? They could feel, as Dan alluded to, that they are serving a greater good by not letting what they feel to be a bad amendment moving forward.

  6. Harry

    Their oath of office is not merely “to serve a greater good” as they see it, but to do that within the requirements of the Constitution which they have each sworn to uphold. The SJC explained to them last week that their duty to the Constitution requires them to vote.

  7. Peter Porcupine

    If they find the requirement of fulfilling their freely given oath, sworn under pains and penalty of perjury (we’ll hear a lot about THAT in coming days!) to uphold the Massachusetts Constitution to be too onerous, they can resign. THAT would be a principled act. Of course, the language of Article 48, per se, excludes a slavery petition under its Section 2 – Excluded Matters – so you are creating a red herring argument.

  8. Dan Kennedy

    Peter: I don’t think it’s at all clear that Section 2 covers slavery. What is crystal clear is that Article 48 is supposed to exempt petitions aimed at “the reversal of a judicial decision.” The anti-marriage amendment passed muster even though its sole purpose is reversing the Goodridge decision.In any case, you could certainly amend the U.S. Constitution to bring back slavery. The difference is that the federal document is extremely difficult to amend. The state constitution is ridiculously easy to amend if legislators take their orders from the SJC.

  9. Rich

    Dan — please don’t start again with your fallacious “this ballot question should be excluded because it reverses a judicial decision” “argument”.Your intepretation would basically make it impossible to ever have an amendment by petition, since virtually by definition any constitutional amendment will overturn at least one judicial decision.Have you bothered the read the AG’s briefs and the ultimate court decision saying why this amendment isn’t subject to the exclusion?

  10. o-fish-l

    Dan said: “I’m not a fan of argument by analogy. Often, it’s the next-to-last refuge of a scoundrel. (Here is the last.) But in this case I think it may be useful to offer a comparison to slavery.”——-Funny, a few weeks back when I used an analogy to make a point here, I don’t recall Dan using the modifier “often” in comparing me to a scoundrel. I guess argument by analogy is “often” wrong, except when Dan is the one making the argument by analogy. Priceless.My larger point is that in this bluest of blue states, with such an enlightened and “progressive” populace (first openly-gay Congressman, first black Senator elected by popular vote etc.) why the sheer terror about putting this question on the ballot? Hold off for just a second on the argument that “Civil rights should never be put on the ballot.” Whether they should or not, I will assent to that for the sake of argument. Yet if homosexual marriage is such a great idea, why worry about losing at the ballot box in such an advanced place? Or is it that homosexual marriage not such a great idea? Or does the homosexual marriage crowd believe that Massachusetts is home to a majority of closeted “bigots?” When it comes to the intense fear of allowing the people to vote, what is the source of such fear? Do tell. UPDATE: R.D. Saul of NECN just said that the legislature has just voted and the pro-homosexual marriage lobby has lost this round.

  11. Dan Kennedy

    Rich: Technically, the amendment would not overturn Goodridge. In reality, that’s what it’s all about.Fish: I don’t like arguments by analogy because they’re usually bad. I happen to think mine’s pretty good. You don’t try to refute it — you just whine.

  12. Anonymous

    Dan, I like your argument. I do think your analogy breaks down, however, because I do not think slavery is morally equivalent to not letting people marry. A better analogy might be if the initiative was to ban inter-racial marriage.At any rate, the outcome is disturbing. 25% of the legislature seems like a pretty low threshold.

  13. Donna L. Halper

    This entire thing mystifies me. There are so many far more important issues to vote on, yet the legislature can’t seem to get around to them. Bills that could save people’s lives die every year; many of these bills never get out of committee, held hostage to special interests. Look how long it took to toughen our pitifully weak drunk driving laws, for example. Meanwhile, our roads are falling apart, daycare providers and social workers are overburdened and make criminally low salaries, there are long waiting lists for beds in drug rehab programs– and our legislators are… voting to discriminate against gay people. Dan, I just don’t get it. You and I are heterosexual. I am still married to my husband. You are still married to your wife. All that has changed is now my gay friends, some of whom had been together with their partners for decades, can get married too. WHO IS BEING HARMED BY ANY OF THIS? Shame on Mitt Romney, George W. Bush and other right wing bigots who have made gay people the latest of their whipping posts. I long for separation of church and state to return– those who believe on religious grounds that gay people are sinners have every right to that belief; but they should not be imposing their views on those of us who believe gay people are human beings who deserve civil rights. Like I said, this all makes no sense to me. Is there anything us outraged heterosexuals can do to show our support for our gay friends and colleagues?

  14. Scott Allen Miller

    As an unabashed scoundrel who often argues by analogy, I think your analogy is fine, Dan.When faced with questions like this I, like so many of us no doubt, wonder “What Would Charles Sumner Do?” Sumner would fight tooth and nail against the forces of darkness. He would speak. He would write. If he were here today he would blog and go on TV news and talk radio shows. He would wave the bloody shirt. He would be f***ing relentless… until some bigot came along and beat him nearly to death with a cane, of course. But he’d eventually get back into the fight even then.Here’s what he would not do. Sumner would not give up and he would not break one law to support another as a lawmaker. He would not run from the fight and call it courage.FWIW, on my blog I suggest that putting the gay marriage issue on the ballot could prove beneficial to the cause in the long run and blow up in the faces of anti-gay marriage activists.

  15. Susan Ryan-Vollmar

    To Scott Allen Miller and o-fish-l who say that this should be voted on: If this were an amendment that tried to take away existing rights from women or African Americans would you be so casual about putting it on the ballot?I agree that it would be a fantastic political victory if this goes to the ballot and is defeated. That really isn’t the point. I don’t think that John Q. Public should be weighing in on civil rights. And, in fact, that’s not the way we do things here in the United States. But maybe I’m wrong. If so, enlighten me. Could either one of you please provide a comparable example in which a right as fundamental as the right to marry has been decided by popular vote?

  16. DrGrishka

    Here’s a problem with your argmuent. Simply revese it. What if the powers that be in Mass refused to implement the Goodridge decision? I.e., the Governor and the AG directed all the clerks not to issue marriage licenses to gays while telling SJC to go fly a kite and say that if people don’t like it they can vote you out of office. That wouldn’t sit well with anyone. the point is you head down dangerous path when you choose to ignore judicial decisions and constitutional obligations.

  17. Charles Swift

    I’m not certain how recent of an example of a popular vote being held on a civil right Susan wants, but the right of women to vote in state elections appeared on state ballots throughout the country in the late 19th and early 20th centuries. These referenda were successful in some cases but were ultimately made moot by an amendment to the United States Constitution in 1920. Massachusetts held a referendum on granting women the right to vote in 1915 and the anti-suffrage movement mobilized to defeat it. The arguments for not allowing women the right to vote, especially the claims of the breakdown of society and the family and the religious objections, will seem very familiar to those following the marriage equality debate. This is the closest historical analogy I can think of to the present situation.Scott: I find it very interesting that you can assert what Charles Sumner would and would not do, especially your claim that “he would not break one law to support another as a lawmaker”. I’m certain Charles Sumner would have encouraged people to disobey the Fugitive Slave Law after its passage in 1852. Sumner wrote: “By the supreme law which commands me to do no injustice, by the comprehensive Christian law of brotherhood, by the Constitution which I have sworn to support, I am bound to disobey this Act.” He said this despite having sworn an oath to support the Constitution and the laws of the United States. A few years later Massachusetts created a law to nullify the Fugitive Slave Act within Massachusetts. Faced with a situation like the one at the present, Sumner might very well have refused to vote to put the ban on same sex marriage on the ballot.

  18. Anonymous

    “I’m not a big fan of argument by analogy, but…””I’m not a proponent of the death penalty, but…”

  19. Dan Kennedy

    As Emerson said, “A foolish consistency is the hobgoblin of little minds.”Anyway, I’m hardly alone in opposing the death penalty except in cases of genocide and crimes against humanity. Saddam Hussein wasn’t David Berkowitz, you know?

  20. Anonymous

    Dan, what purpose does Saddam’s death serve?

  21. Peter Porcupine

    Good grief – do you FAVOR putting Berkowitz to death????

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