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

Tag: gay marriage

Lawmakers should defy constitution

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.

An odd decision

So the state’s Supreme Judicial Court has ruled that the Legislature violated Article 48 of the Massachusetts Constitution when it failed to vote up-or-down on an amendment to ban same-sex marriage (and a bunch of other amendments, too) — but there’s nothing anyone can do about it other than elect new legislators.

I have an observation and a question.

Observation: It’s called the separation of powers, folks.

Question: Here’s what has puzzled me from the beginning. Let’s say Senate president Robert Travaglini is presiding over the constitutional convention. A member rises. Travaglini recognizes her. The member then files a motion for a recess. At this point, what is Travaglini supposed to do? Rule the motion out of order?

And what if he lets the motion go forward? Does each individual member have a constitutional duty to vote against the motion?

Regardless of the SJC’s ruling today, Article 48 is deeply flawed if it carries a constitutional obligation for the Legislature to violate its own internal customs and rules.

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