Author: Dan Kennedy

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.

Dan Kennedy invited me to post about Tuesday’s SJC ruling on Gov. Mitt Romney’s lawsuit asking the court to force lawmakers to vote on an initiative petition to the state constitution that would prohibit same-sex couples from marrying.

I agree with Dan: The ruling is a strange one. It doesn’t account for the parliamentary rules and procedures in place at a constitutional convention. If a lawmaker makes a motion to adjourn before taking up every item on the agenda, is he or she breaking the law? If Senate President Robert Travaglini recognizes the motion, is he breaking the law?

The ruling merely highlights what a bad amendment Article 48 is. And that it badly needs to be reformed. Are the process wonks (paging Blue Mass Group’s David Kravitz) going to take up the cause? We’ll see.

So what should lawmakers do Jan. 2 when the constitutional convention that was recessed Nov. 11 is resumed? Easy. They should adjourn without voting on the amendment that would ban same-sex couples from marrying. Thirty years from now most of those now calling for a vote on this amendment — regardless of whether they want it voted on because they believe it should be passed or because they believe in “process” — will be embarrassed by their actions. The idea that gay couples should be banned from marrying will be seen by a majority of Americans as bizarre and/or offensive. Just as bizarre and offensive as the idea of voting on the rights of racial minorities is seen today.

This whole debate about process reminds me of “Heinz’s dilemma,” which should be familiar to most readers: A man named Heinz has a wife who is dying of cancer. There is a cure for her, but Heinz cannot afford the medicine. It’s being sold by the pharmacist who developed the drug; the pharmacist is selling the miracle drug at a gigantic mark-up. Heinz tries to bargain with the pharmacist: can he make a partial payment now, get the drug and pay the balance later when he’s able to get the rest of the money? The pharmacist says no. So Heinz breaks into the drugstore and steals the drug that will save his wife.

Did Heinz do the right thing?

The answer isn’t as important as the reasoning behind it — which is supposed to show where one falls on Lawrence Kohlberg’s stages of moral development.

Those who say that Tuesday’s SJC ruling mandates lawmakers to take an up-or-down vote on the merits of the anti-gay marriage amendment — knowing full well that the amendment (which ultimately asks a majority of heterosexuals to pass judgment on the rights of a minority of homosexuals) will pass — are stuck at stage four of Kohlberg’s six stages of moral development: “Maintaining the Social Order.” To them, I have one thing to say: Grow up. Put down your Bible and/or your copy of the state constitution and pick up a copy of Martin Luther King Jr.’s “Letter from a Birmingham Jail.” See if you can’t meditate, contemplate and/or reason your way to stage five — “Social Contract and Individual Rights” — where you value law and order but understand that not every law is a good law.

At this stage, you believe that it is always morally wrong to break the law, even a bad law, but that it would be an even worse moral offense to mindlessly obey a bad law. Better yet, work yourself up to stage six, “Universal Principles,” where Gandhi and King did their thinking and living. In this stage, you know that there is no moral value in obeying a bad law and that the idea of a majority voting on the rights of a minority is, yes, morally reprehensible.