JURIST - Hotline: Romney same-sex marriage ban lawsuit tramples separation of powers

Gary Buseck [Legal Director, Gay and Lesbian Advocates and Defenders (GLAD)]: "Mitt Romney is about to leave the Massachusetts governorship and enter a presidential primary campaign built almost exclusively around his opposition to the now recognized right of liberty and equality under the Massachusetts constitution for two loving people to marry. While he’s certainly entitled to his angst over the legislature’s vote to recess the 2006 Constitutional convention until Jan. 2, 2007, which effectively killed a proposed ballot initiative to end marriage equality, his rhetoric is overwrought and unprincipled, as is his lawsuit to try and force the legislature to vote.

The Governor claims to be protecting the constitution. Yet his meritless lawsuit ironically tramples on the constitutional principle of the separation of powers, by seeking a court order to direct the Senate President to conduct a specific vote in a legislative body. The lawsuit also ignores the clear requirements of Massachusetts constitution in asking the Secretary of the Commonwealth to simply, by fiat, place this proposed amendment on the ballot. The Constitution carefully spells out the role of the Secretary, which includes placing a matter on the ballot only after it has been certified by the clerk of the Constitutional Convention. Does the Governor imagine winning a court victory? Surely not. But he certainly hopes to score political points on the national stage.

It was precisely because of an abiding concern for deliberative representative democracy that the people of Massachusetts in 1918 adopted – unlike many Western states – a form of initiative that included a distinct deliberative role for the Legislature in the amendment process. Contrary to what Mr. Romney has asserted in his complaint, our Constitution nowhere says in Article 48 that “the legislature `shall’ vote” on the merits of any given petition.

Turning to the merits of what the Legislature has done to protect the efforts of same sex couples to marry, they have met in Constitutional Convention several times over nearly five years, and have repeatedly debated various anti-gay amendments. Every time, they have voted not to move the amendments forward.

Those are the judgments we elected our representatives to make; and that is what the Constitution directs them to do."