Placing the Shoe Upon the Other Foot
Mason Cooley (b. 1927), U.S. aphorist.
As everyone not living under a rock knows, the Massachusetts Legislature provided another Profile in Courage by refusing to vote upon the Citizen Petition to define marriage as being between a man and a woman, which garnered 100,000 signatures more than was necessary to go to the ballot. The Legislature must vote yes or no twice, in two Sessions, and then the change goes to the voters for ratification or defeat. Rather than vote, they declared a 'recess' until Jan. 2nd, 2007, the day before the new Session begins. You see, if they had adjourned, the Governor could call them back into session for failing to take 'final action', and force a vote. As it is, they are just taking an eight-week 'rest'.
This is not the first time this has happened. In 1992, a similar petition for Term Limits was brought before the Legislature, and then-President of the Senate Bill Bulger (yes, THAT Bill Bulger, brother of the FBI's most wanted man, Whitey Bulger) refused to allow a vote. Gay rights activists who are glad that the Legislature has apparently killed this matter with a procedural dodge should pause to consider that if you are using the tactics of Billy Bulger, the Corrupt Midget, you have probably lost your way.
Here is the legal citation from the Constitution.
Section 4. Legislative Action. - Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays, which shall be entered upon the journals of the two houses; and an unfavorable vote at any stage preceding final action shall be verified by call of the yeas and nays, to be entered in like manner. At such joint session a legislative amendment receiving the affirmative votes of a majority of all the members elected, or an initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court.
In 1935 (Opinion of the Justices to the Senate and the House of Representatives), the Supreme Judicial Court (SJC) held:
Nothing in the phraseology of [Section] 2, of art. 48 is imperative that the joint session convened in accordance with its terms must take final action respecting the matter pending before it within any specified time. Such action must be taken at some time. The mandate is that the joint session shall continue from time to time until final action is taken.
However, according to the SJC, the "mandate" in Article 48 is without recourse. In 1992 (Limits v. President of the Senate), the SJC held:
When the purpose of art. 48 has been frustrated, the only remedy may come from the influence of public opinion, expressed ultimately at the ballot box.
Porcupine is of the opinion that this time, the SJC does have a remedy at hand.
In the Goodrige decision, which created gay marriage in Massachusetts, and possibly the world, the SJC wrote that while the Legislature could act, it had chosen not to, and therefore, without action in 180 days, the Court could not find a legal reason to deny gay couples a marriage license as there is no mention in the Massachusetts Constitution that marriage licenses can only be given to a man and a women. Of course, there is nothing in the Massachusetts Constitution about aviation, broadcasting and public education, either.
In 1992, in the Bulger case, the Court was correct - it could not fabricate term limits out of the air, despite the proper petition of the people. Also, it could not punish or censure the Legislature for failing to act upon its legal duty. Now, the Legislature is hiding behind an SJC decision, and is refusing to vote, as it its legal duty. It is, in effect, making the Court responsible for a public policy decision it would rather avoid. Now, the Court does have a matter within its jurisdiction with which to force action.
The proponents of the Marriage Amendment petition will doubtless sue, even as the Term Limits proponents did, if for no other reason than to establish that the Legislature is behaving unconstitutionally. As redress for this behavior, the proponents should request that the SJC issue an immediate and statewide injunction, stopping any further marriage licenses from being issued to gay couples until the Legislature does complete its duty and vote.
The gay rights activists, who are controlling the majority of the Legislature, will then demand a vote so fast you head will spin. By placing the shoe upon the other foot, maybe we can begin to walk forward from the eight year stall we have been in.