First published in the Chicago Free Press on January 10, 2007
More than the necessary 50 of Massachusetts legislators meeting in a Constitutional Convention voted to support placing a proposal to ban same-sex marriage on the ballot in a statewide election.
If at least 50 votes at a second Constitutional Convention also support a referendum, then the referendum will take place and whether Massachusetts should allow legal same-sex marriage will be decided by the majority of Massachusetts voters.
Like most of us, I suppose, I was rooting for the defeat of the anti-gay, or at least anti-gay marriage, forces during the run-up to the Constitutional Convention (dubbed ConCon) and while following the confused proceedings at ConCon itself at a blog provided by the Boston gay newspaper Bay Windows.
But then after passion had ebbed a bit, no longer caught up in the heat of the moment I found myself having some troubling second thoughts.
Remember what happened. Gay marriage advocates had argued before the Massachusetts Supreme Judicial Court (SJC) that same-sex marriage was mandated by the equality provisions of the Massachusetts state constitution. After deliberation, the majority of the SJC agreed and same-sex marriage was duly instituted.
So same-sex marriage owes its very existence to the Massachusetts constitution.
Then in an effort to roll back the moral depravity of gay marriage, anti-gay forces gathered signatures to call for a statewide referendum on the issue. The Massachusetts Constitution states that if enough voters petition in support of referendum, state legislators meeting in ConCon should vote on whether to place the issue on the ballot. If at least 50 legislators (one quarter of the whole) approve it at two successive ConCons, it goes on the ballot.
Plausibly fearing that at least 50 legislators would approve a referendum, gay advocates tried to block a vote. Anti-gay marriage forces responded by petitioning the SJC to order the ConCon to vote on ballot placement.
In a rapid decision, the SJC stated unanimously—including all the justices who had approved gay marriage—that the ConCon must vote, that the constitution stated that if presented with sufficient signatures the ConCon shall vote on about a ballot referendum, not may vote.
The court acknowledged that it lacked the power to force ConCon to hold a vote, but the message was not lost on legislative leaders. And so the ConCon voted and more than 50 votes supported sending it on to the next ConCon to see if it is approved there.
Now here is where the nagging second thoughts come in. With all the gay-supportive will in the world, I do not see how Massachusetts gays and their supporters can appeal to the state constitution to establish gay marriage, and then turn around and urge defiance of the plain language of the constitution when it comes to some aspect they do not like.
Constitutions provide neutral rules of procedures to be followed in deciding contentious issues. To refuse to follow the constitution is to cut yourself off at the knees, to undermine the very basis by which your own rights are recognized. And the next time it may be the other side that urges that the constitution be ignored.
Further, to urge the legislature to ignore the language of the constitution is to urge it to undermine its own legitimacy: The constitution is what created the legislature in the first place and gives it its authority. Defying the constitution would deny the very basis of the legislature's existence and legitimacy.
Gay advocates coped with these kinds of arguments ... by ignoring them. Instead they trotted out the familiar catch-phrase of "People's basic civil rights should never be subject to a popular vote." But however appealing that phrase may be as political rhetoric there are two problems with it.
First, that is not what the Massachusetts constitution says. The constitution provides a means for voters to vote on practically everything if they jump through enough procedural hoops.
Second, "civil rights" are not self-defining. Anyone can claim anything as a (civil) right. But what should justifiably count as a civil right may be a matter of serious disagreement. Like it or not, they are themselves matters to be decided by constitutional processes, legislatures and ultimately voters. That is what the word "democracy" means.
And so Massachusetts gay marriage advocates must either persuade a few more legislators at the next ConCon to decline to approve a referendum or else they must be prepared to defend what they hope will be recognized as a civil right. If I were they, I would be starting preparations yesterday. And the rest of us would be wise to do whatever we can to help.