Political Hay

The Constitutional Crack-Up

The Massachusetts legislature declines to replace gay marriage with civil unions. So who won?

By 9.19.05

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As the Massachusetts legislature prepared to convene a joint session to decide the fate of a proposed constitutional amendment to replace gay marriage with civil unions, the smart advice for same-sex couples planning to wed was don't cancel the catering. Last Wednesday's vote allowed them to save the date at least into 2008.

It wasn't even close. The painstakingly crafted compromise from last March was rejected by a vote of 157 to 39. Erstwhile amendment supporters abandoned the measure in droves. Senate Republican Leader Brian Lees, a cosponsor who helped engineer the amendment's preliminary approval in 2004, was among those voting no.

"Today, gay marriage is the law of the land," Lees said to reporters. But this explanation is insufficient. The Supreme Judicial Court imposed same-sex nuptials on the commonwealth effective May 2004 and legislators knew last year that the best they could do under Massachusetts' Byzantine constitutional amendment process -- which requires an affirmative vote by two consecutive legislatures and the voters in a statewide referendum -- was reverse gay marriage more than two years after it had already started.

Less than a year ago, constitutional amendments reaffirming marriage as a union between a man and a woman passed in every state where they were considered. Massachusetts hasn't broken so decisively from national opinion since it supported George McGovern for president in 1972. What gives?

TWO MAJOR CHANGES in Bay State political conditions caused the coalition backing this amendment to collapse. The relative lack of electoral backlash against the 92 legislators who voted against the amendment in 2004 sent a clear signal that whatever the implications of the same-sex marriage issue nationwide, it wasn't going to hurt Democrats in Massachusetts.

Thus Democrats who had always supported gay rights but were unsure of how their constituents would react to gay marriage got the reassurance they needed. As same-sex weddings commenced, it wasn't clear that the issue remained as divisive among Bay State voters as it appeared during the early days after the Goodridge v. Department of Health ruling was first handed down.

In fact, there were Massachusetts residents who seemed inclined to punish whichever side brought the issue up first. National Review senior editor Ramesh Ponnuru once noted, "The central fact about the public's thinking on abortion is that most people don't like to think about it." This observation applies equally to some voters' attitudes about gay marriage.

Legislators initially opposed to same-sex marriage grew reluctant to tamper with it once it was in effect. Democratic Sen. James Timilty told the New York Times he changed his mind after meeting with the children of same-sex couples: "I decided that I don't feel at this time that same-sex marriage has hurt the commonwealth in any way."

The second major development: gay-marriage opponents got a better offer. Marital traditionalists, most of whom opposed creating civil unions, never liked the legislature's compromise amendment in the first place. To them, its rejection wasn't a "setback" as many news reports mistakenly claimed; it was a victory.

One legislator said that allowing people to vote against gay marriage only by voting for civil unions was like allowing them to vote for George W. Bush only if they also voted for John Kerry. Ron Crews, head of the Massachusetts Family Institute when the compromise first passed, described it as "designed to fail."

Pro-family groups drafted a new, no-civil-unions amendment. To get their version on the ballot in time for the 2008 elections, they will need more voter signatures than under the legislative-driven process -- but only 50 votes in each of the next two sessions of the legislature. Gov. Mitt Romney praised it as a "clean, straightforward, unambiguous amendment" and defected, taking many Beacon Hill Republicans -- at least 15 of whom cast their initial votes for the compromise measure only after being lobbied by Romney -- with him.

In the end, the legislature balked at a compromise that no longer benefited either side. Gay-rights supporters were confident they could do better than civil unions; social conservatives believed they could roll back Goodridge without creating "gay marriage lite."

THIS OUTCOME MAY influence the strategies employed in the gay-marriage debate nationwide. Social conservatives are likely to discover whether they can indefinitely oppose both the redefinition of marriage without offering any civil-unions-like compromise. Their opponents, while acknowledging the difficulty of establishing same-sex marriage, will discover whether once imposed it can actually be reversed.

The California legislature recently passed a same-sex marriage bill despite the electorate's overwhelming approval of Proposition 22, the traditionalist Defense of Marriage Act. Some Democrats merely wanted to force Gov. Arnold Schwarzenegger to veto it. But others have undoubtedly looked at Massachusetts' example and wondered if they could similarly shift public opinion by changing the facts on the ground.

A recurring theme in the Massachusetts debate was that more than 6,600 same-sex couples were married without any obvious social catastrophes. And Goodridge supporters have succeeded in setting the bar for such catastrophes unrealistically high -- heterosexuals divorcing en masse in response to gay weddings and perhaps the sky falling.

Both sides have radically different conceptions of where the public will ultimately come down. Marital traditionalists appeal to the law that is written on the human heart; same-sex marriage supporters are convinced that time is on their side. "We believe that we will have a majority of voters who will stand for traditional marriage," Massachusetts Family Institute President Kris Mineau told reporters. "The electorate and the Legislature are just fed up with this issue," countered Josh Friedes of the Freedom to Marry Coalition.

They can't both be right.

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About the Author

W. James Antle III, author of the new book Devouring Freedom: Can Big Government Ever Be Stopped?, is editor of the Daily Caller News Foundation and a senior editor of The American Spectator. You can follow him on Twitter @jimantle.