Massachusetts high court refuses to force legislative vote on gay marriage ban

[JURIST] The Supreme Judicial Court of Massachusetts [official website] ruled unanimously Wednesday that it could not force the state legislature to vote on a proposed constitutional amendment banning gay marriage. After lawmakers failed to vote on the ballot initiative in November, Governor Mitt Romney [official profile] sued the Commonwealth [JURIST report]. In its opinion [PDF text], the court wrote:

We have no statutory authority to issue a declaratory judgment concerning the constitutionality of legislative action, or inaction, in this matter . . . The only remedy set forth in art. 48 for the failure of a joint session to act is a direction to the Governor to call a joint session or a continuance of a joint session if the joint session fails in its duty. . .The plaintiffs have not set forth any legally tenable judicial enforcement role in ensuring that the members of the joint session comply with their constitutional duties under art. 48, and . . . case law provides no enforcement mechanisms.
The Court did, however, go on to criticize the inactivity of lawmakers [Boston Globe report] to vote on the measure in November:
The members of the General Court are the people's elected representatives, and each one of them has taken an oath to uphold the Constitution of the Commonwealth. Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote by yeas and nays on the merits of the initiative amendment . . . ultimately will have to answer to the people who elected them.
Gay rights groups praised Wednesday's ruling; Lee Swislow, Executive Director of Gay & Lesbian Advocates & Defenders (GLAD) [advocacy website], said in a press statement:
The court has ruled on this question repeatedly, and today’s decision is consistent with what they’ve said before: that the legislature cannot be compelled to vote. The ruling maintains the critical separation of powers between the branches of government.

The Legislature has consistently refused to insert discrimination into the Constitution. Legislators have not only the freedom, but the right and the responsibility to vote their conscience. It is never right for the majority to vote on the rights of minorities.
In 2003, Massachusetts became the first state to legalize same-sex marriage [JURIST news archive] with the high court's decision in Goodridge v. Department of Public Health [text; JURIST report]. The proposed constitutional amendment, which has garnered over 170,000 signatures, would strictly define marriage as a union between a man and a woman, though it would leave existing Massachusetts same-sex marriages intact. It would need 50 votes in the 2007 legislature with the same in 2008 to be put on the November 2008 electoral ballot. When the state legislature last considered the amendment, opponents of the measure failed to amass the 151 votes necessary to kill the matter, instead voting 109-87 to recess [JURIST report] a joint session with the Senate until January. AP has more. The Boston Globe has additional coverage.

 

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