Massachusetts gay marriage: federal issues loom
on Jul 10, 2006 at 12:02 pm
This is another in a continuing series of reports on Supreme Court decisions that have recurring effects on lower court cases. The following relates to the Court’s 1996 decision in Romer v. Evans, finding unconstitutional a Colorado state constitutional amendment barring laws against discrimination aimed at homosexuals, and the 1967 decision in Reitman v. Mulkey, striking down a California voter-approved amendment eliminating laws protecting against race bias in housing..
Masschusetts’ Supreme Judicial Court, three years after recognizing a right to same-sex marriage under the state’s constitution, on Monday removed one obstacle to a citizen vote in Massachusetts on a proposal to overturn that decision. But two members of the Court raised a question about a possible federal constitutional violation if the ballot measure is approved. The full text of the SJC decision in Schulman v. Attorney General, et al. (docket SJC 09684) can be found here.
The sole issue in the case, at this stage, was whether the initiative petition would be barred from the ballot under the Massachusetts Constitution. The petition, drawn up by foes of gay marriage and certified for the ballot by the state attorney general, would declare that state and local governments in Massachusetts “shall define marriage only as the union of one man and one woman.” It targets the state court’s 2003 ruling in Goodridge v. Department of Public Health, finding a violation of the state constitution in limiting the right to marry to opposite-sex couples.
Supporters of gay marriage sought to keep the measure off the ballot by claiming that it violated a provision of the state constitution saying that there can be no initiative petition that seeks “reversal of a judicial decision.” In its unanimous decision Monday, the Supreme Judicial Court said that neither the plain meaning of the words “reversal of a judicial decision” nor their intended meaning supports the challenge.
In an opinion written by Justice Robert J. Cordy (with two of the seven Justices concurring in a separate opinion), the state court said the words at issue have “a specialized meaning in our jurisprudence,” involving “a peculiarly judicial function, consisting principally of the power to vacate or to set aside the decision in a particular case.” That is the function, it said, that the state constitution puts off-limits to voters. What is excluded, it added, would be “a petition that would permit the citizens to review a decision of the court, and reverse its determination of the rights of the parties.”
What the new intitiative seeks instead, Cordy wrote, is an overruling of the future application of the Goodridge decision. That, the decision said, “is fundamentally different.” It would simply change the “underlying substantive law” for future cases. This power, when exercised by the people, is like the power the state court itself has used to overrule prior decisions; that, according to the ruling, is a power “not peculiarly judicial.” The legislature, it noted, has done so, too.
The ruling is not the last word on whether the ballot measure will actually go before the voters in the state (see below), or on whether it would be a valid overruling even if it were passed by the voters.
Both the Cordy opinion for the Court and the concurring opinion for two of its members suggested that there remain other potential state constitutional challenges to the measure. The Court’s opinion stressed in text that it was only ruling on the “reversal” vs. “overruling” issue, and said in a footnote that the initiative might be subject to challenge under other provisions of the state constitution, including various protections for individual rights and bar inititives that relate to religious practices or institutions.. It added that “no such grounds have been raised or argued by the parties in this case.”
The two concurring Justices — John M. Greaney, joined by Roderick L. Ireland — made that point, then added a further potential challenge: the federal Constitution. Greaney wrote: “The only effect of a positive vote will be to make same-sex couples, and their families, unequal to everyone else; this is discrimination in its rawest form…There is no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that purposefully discriminates agfainst an oppressed and disfavored minority of our citizens in direct contravention of theprinciples of liberty and equality protection by Art. 1 of the Massachusetts Declaration of Rights.”
If the initiative is approved by the legislature, and ultimately by the voters, Greaney added, “there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable.” In a final footnote, the concurrence said: “A positive vote on the proposed initiative may be vulnerable on grounds of Federal constitutional law as well (citing Romer v. Evans and Reitman v. Mulkey)….Whether the substantive due process or equal protection guarantees of the Federal Constitution permit an amendment to a State Constitution that is motivated by animus, or is discriminatory on its face without a sufficiently important reason, are, at this point in time, unlitigated questions of law.”
The proposed state constitutional amendment could not appear on the ballot in Massachusetts until November 2008. It must go to a state constitutional convention that opens on Wednesday. If 50 members of the legislature approve, it will then go to a second constitutional convention next year, with 50 votes again needing for it to advance. Approval in both conventions would then put it on the ballot.
