Jewish World Review Feb. 17, 2004 / 25 Shevat, 5764

Jeff Jacoby

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A hypocritical marriage debate | The ripe odor of hypocrisy hung over the Massachusetts State House last week. For all the fine words about "democracy in action" and "the people's right to decide," the debate over whether the state constitution should be amended to define marriage as the union of a man and a woman was not born of the legislators' great respect for the voters. It was born of their cowardice and dereliction of duty. It is precisely because they didn't respect the voters that Massachusetts now find itself in a churning constitutional crisis.

No one better exemplifies the Legislature's unctuousness than Brian Lees, the Senate Republican leader. He was one of the early speakers when the joint session convened as a constitutional convention and he struck a pose of democratic piety. "It is important to bring to the voters the issue of same-sex marriage and traditional marriage," declared Citizen Lees. "All we are asking [is that] we give the people a chance to vote and be heard."

Odd, then, that when Lees had the chance to do just that less than two years ago, he chose instead to stomp the people's right "to vote and be heard" into the mud.

Let's rewind the tape:

It is July 2002. The Legislature has before it a proposed amendment to the state constitution, properly drafted in language approved by the attorney general, enshrining the traditional definition of marriage: one man, one woman. The amendment is supported by the certified signatures of more than 130,000 registered voters on  official petitions — far more than the number needed to qualify for legislative action.

The lawmakers know the rules. Under Article 48 of the Massachusetts Constitution, they are required — not authorized, required — to vote on the proposed amendment. If 25 percent of the 200-member Legislature votes yes in two consecutive legislative terms, the amendment goes to the voters in November. In other words, legislators cannot kill an amendment proposed by citizen initiative unless more than 150 of them — 75 percent — vote no.

But the amendment's opponents don't have 150 votes. So they decide to kill the amendment through an underhanded maneuver. After the presiding officer, Senate President Thomas Birmingham, opens the joint session, he immediately recognizes Brian Lees, the Senate minority leader. Lees moves to adjourn the constitutional convention. Birmingham puts the motion to a vote. They need only a simple majority to end the joint session and they easily get that — the vote is 137-53. The convention is aborted, the marriage amendment is dead, and the lawmakers who killed it are treated as heroes for robbing the voters of the "chance to vote and be heard" that Lees now pretends to revere.

Had Lees and Birmingham obeyed the Constitution in 2002 instead of flouting it, the marriage amendment would likely be on the state ballot this fall. Massachusetts voters would be in the midst of a spirited debate on its merits. They would no doubt be divided on the issue, but it would be universally understood that they were the ones to make the decision. The Supreme Judicial Court, knowing that a vote of the people was imminent, would never have presumed to rule as it did in Goodridge, the same-sex marriage case. Instead of unilaterally redefining marriage, the SJC would have deferred to the voters and the political process.

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Which is what it should have done in any case. The point cannot be stated strongly enough: The court had no business imposing on Massachusetts something as aberrant and unprecedented as same-sex marriage. In a democratic republic, radical legal change can only come from the political branches — the Legislature and the governor. A court that presumes to overturn the settled definition of something as fundamental as marriage is a court that is drastically out of control, and badly needs to be brought back to earth.

Massachusetts is one of only three states (the others are New Hampshire and Rhode Island) whose judges are not appointed for fixed terms. It is one of only a dozen states that give voters no role at all in the selection or retention of judges. The intention was to ensure the judicial branch's independence, but as the Goodridge decision makes plain, the state's high court has gone beyond independence into recklessness. Lifetime or near-lifetime tenure for judges is a mistake. So is the total lack of judicial accountability to the electorate. It is time — it is past time — to correct those mistakes. The SJC needs to be forcefully reminded that in a government of the people, it does not reign supreme.

The first priorities, though, are to constitutionally secure the definition of marriage and to prevent the chaos that would erupt if town clerks begin issuing same-sex marriage licenses on May 17, when the SJC's six-month stay of its ruling expires. Contrary to the mythology of the gay and lesbian lobby, this is not about civil rights or ending "discrimination." It is about making sure that something as timeless as the meaning of marriage cannot be changed without the people's consent.

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Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.

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