The who, what and why of a constitutional crisis

This opinion is being written just after a hearing before the Massachusetts Supreme Judicial Court in a case brought by backers of the marriage amendment. The plaintiffs want the court to tell legislators that they have a duty under Article 48 of the state constitution to bring the amendment to an up-or-down vote this term, and to have the court require a roll call to be taken on Jan. 2, the last day of the term. A ruling is expected between Christmas and New Year’s.

What Article 48 calls a “final action” would allow those 50 or more legislators who favor putting the amendment on the 2008 ballot to move it forward to the next term, thus keeping the amendment alive for a second necessary legislative vote in 2007 or early 2008.

Legislators who moved earlier this year to recess without taking the first necessary roll call vote have told their constituents and the public that the legislators didn’t believe the state constitution required a vote. They argued that despite the numerous court rulings in the past indicating such a duty, they were free to deny a roll call vote, not because the necessary votes weren’t there to move the amendment forward, but precisely because our side had the 50 votes and the majority of the Legislature didn’t approve.

The day before the Dec. 20 hearing, attorneys for the plaintiffs in the Doyle vs. Galvin case provided the court with samples of Op-Eds and letters written by legislators defending their move to duck a vote. This sparked a lively discussion during the hearing among the lawyers and judges. What is to be done when legislators defy the constitution?

We are in a constitutional crisis. It is a political and institutional crisis. At its root is a failure on the part of our public servants to recognize their subservient role with respect to the true sovereign in our democracy: the people. We are the bosses. Our state constitution, originally and principally drafted by John Adams, sets it up that way.

The people acting directly or through their elected representatives establish which of the many possible private claims are to be raised to the level of civil rights. The courts are not the source of rights--the people are, by virtue of their consent through the democratic process. In redefining marriage, the SJC arrogated to itself the illegitimate power to make new rights, and imposed on us the threat of persecution for non-compliance.

So there should be no doubt that the present crisis was created by the SJC in 2003, when four of the seven justices on the court redefined marriage in Massachusetts, and characterized those who disagreed as bigots and haters.

Some assert, however, that Gov. Mitt Romney is the “father of same-sex marriage” and should be blamed for the crisis. I disagree.

Those making this claim argue that the SJC did not legalize same-sex marriage when it issued its ruling in November 2003 but left it up to the Legislature to act within a time-frame of 180 days, ending on May 17, 2004. They point to directives before May 17 from the executive branch advising justices of the peace and town clerks that marriage certificates would have to be issued to same-sex couples under the threat of discrimination charges.

The Legislature did not act. However, the courts did. When the SJC issued its 2003 ruling on same-sex marriage, it advised the trial court in the case to enter an order on May 17 consistent with the high court’s ruling. The trial court undertook the action as directed. It issued a declaratory judgment on May 17 concluding that the same-sex couples seeking marriage licenses as plaintiffs had a constitutional right to get them. That order, fashioned as a statement of law, was relied upon by other similarly situated couples as a supposedly legal basis for obtaining their own licenses.

Now, what the courts did in redefining marriage and declaring same-sex couples to be eligible for marriage licenses exceeded their authority. Their product is not “law” in the sense that it was duly and properly enacted. It makes no sense, however, to argue that somehow the SJC justices did not see themselves as changing the law when they redefined marriage. But those who finger the governor seem to argue that the SJC stayed within its constitutional authority, did not see itself as making new law, and left the status of same-sex marriage entirely up to the other branches, thus making the governor entirely at fault.

That is not the case, I believe, as is evidenced by comments made by some of the SJC justices in later cases referring to their same-sex marriage ruling as “making new law.” Furthermore, there were some last minute appeals raising the same arguments that the governor would have had to raise, and these arguments were rejected by the SJC just before May 17.

In truth, the executive branch directives were provisional in nature. They applied to procedures to be taken on or after May 17, not before. They were to be followed not at the governor’s bidding, but pursuant to court order.

Did the governor nevertheless contribute to the damage by failing to defy the courts and simply ignore the SJC’s mandate? Didn’t he have a duty to uphold the constitution too, and not a court’s illegitimate attempt to conjure a right to same-sex marriage out of a document whose drafters never dreamed of such a thing?

Yes, he had a duty, but I don’t think that duty required him to tilt at windmills. Any refusal on his part to abide by the SJC’s ruling would be taken to the courts, back to the very same branch that gave us same-sex marriage in the first place, and on the very same issue they climbed their high horse to rule on.

Instead, the governor took another route. He backed the introduction of a new citizens’ petition. That petition garnered the most ever signatures that put it into the legislative branch. The Legislature balked, and so the governor joined other citizens in the Doyle lawsuit to challenge that branch’s intransigence. Aha, one might say, isn’t that going back to the same court that gave us same-sex marriage?

Yes, but on different terms. The constitution has a clear mandate requiring the Legislature to vote on initiative petitions. It’s a mandate that the SJC has agreed time and again imposes a duty on legislators. So in my opinion our chances, as slim as they may be, were improved by taking this route.

We are in a constitutional and political crisis. How we get out of it is going to challenge us for a long time coming. I think the courts and the Legislature deserve the credit for getting us here. Now it’s up to the people to find a way out.

Daniel Avila is the associate director for Policy & Research of the Massachusetts Catholic Conference.