Massachusetts' highest court chastised the state's legislators yesterday for failing to vote on a proposed constitutional amendment to bar gay marriage, but it said the court does not have the power to force lawmakers to act.
Opponents of gay marriage are seeking to override the 2003 court decision that made same-sex unions legal in Massachusetts. They collected 170,000 signatures - enough to place the question before voters in 2008 - but the Legislature has met twice without voting on the measure.
If the lawmakers adjourn Jan. 2 without a vote, as many predict they will, the measure to repeal gay marriage in Massachusetts will die. To make the ballot, a citizen initiative must be approved by at least a quarter of the Legislature in two consecutive sessions.
Gov. Mitt Romney, a Republican who is contemplating a run for president, has been critical of the lawmakers' inaction. Romney was a lead plaintiff in the lawsuit brought by opponents of gay marriage, which argued that lawmakers were denying voters the right to amend the state constitution.
The Supreme Judicial Court's unanimous ruling yesterday agreed with the core of that argument, but it noted that "there is no presently articulated judicial remedy for the Legislature's indifference to, or defiance of, its constitutional duties.
"Those members who seek to avoid their lawful obligations ... ultimately will have to answer to the people who elected them," read the decision, which was written by Justice John M. Greaney.
The court's 2003 ruling that legalized gay marriage sparked a national debate. But three years later, Massachusetts is still the only state to allow same-sex marriage. Three states - Connecticut, Vermont and New Jersey - allow same-sex couples to enter into civil unions, and California's domestic partnership law guarantees many rights of marriage. Maine, Hawaii and the District of Columbia also authorize domestic partnerships.
Meanwhile, 26 states have passed constitutional amendments barring gay marriage.
This would not be the first citizen initiative to wither on the vine in Massachusetts; legislators have adjourned without voting on six out of the past seven proposed ballot questions - on such issues as abortion, term limits and education.
Lawmakers voted 109-87 on Nov. 9 to end debate and delay the vote on the gay-marriage amendment, virtually guaranteeing its demise. Many spoke passionately before the vote to delay, such as state Sen. Edward Augustus, who said: "This amendment is about the past. It is about fear and intolerance." Advocates of gay marriage celebrated.
"They have refused to be bullied or intimidated, and we fully expect them to keep standing up for what's right," Lee Swislow, executive director of Gay and Lesbian Advocates and Defenders, said in a statement during arguments in the case. "It is simply wrong to put the rights of a minority up for a popular vote. That's what this is about."
The ruling came with one business day remaining before the end of the legislative session. Eric Fehrnstrom, a spokesman for Romney, said the governor hopes the court's sharply worded decision "changes the math at the Statehouse." But the spokesman said Romney "doesn't have a formal role to play" in this matter.
"He is a bystander. Just like any other citizen of the Commonwealth, he has an interest in making sure that the Legislature does its job," Fehrnstrom said.
Ellen Barry writes for the Los Angeles Times.