Political Hay

Boston Tea Party

How a state legislature ended up taking orders from the unelected branch -- and they�re not even married.

By 2.18.04

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BOSTON -- "The biggest embarrassment since Michael Dukakis."

Such has been the general reaction to Massachusetts' deadlocked debacle of a constitutional convention on gay marriage, and just when the rest of the country was beginning to accept that we in the Bay State had changed and could be counted on to conduct ourselves in political matters like grown-ups.

The entire state legislature not only failed miserably in its attempt to offer a needed corrective to the self-righteous judiciary but managed to turn the entire proceeding into the equivalent of the short Greek one's tank-riding episode. Most members of the legislature simply wanted the whole gay marriage issue to go away and were quite content to weasel out of taking a stand one way or the other. So maybe they could come up with a deal that would pretend to give both sides what they wanted.

This civil unions compromise is precisely what the state senate was in the process of attempting when it meekly petitioned its masters on the Supreme Judicial Court to find out if this would be acceptable. The supremes responded with an advisory opinion that in essence said, "We make the laws now, thank you, and we think there should be gay marriage. So play along."

LEGISLATORS THEN FACED two realistic choices: Rewrite the laws as they were commanded to do by the supremes or amend the state constitution to reverse their decision. (Yes, yes, defiance of the court's ruling à la Roy Moore or impeaching the rogue judges were also options, but note I said "realistic choices.") They failed to do either.

To be fair, the process itself seems designed to guarantee failure. Massachusetts' constitution, which predates the U.S. Constitution and is thus the oldest governing constitution in the world, is incredibly difficult to alter.

To wit, any amendment must be approved by a majority of state lawmakers in joint sessions of two successive state legislatures and then placed on the ballot for a public vote. This means that the earliest an amendment could have been adopted would be 2006, a year and a half after gay marriages would already have begun in the state.

This put the state's politicians in the unenviable position of voting for an amendment that likely would take benefits away from same-sex couples who already had them. Worse, polling has revealed Massachusetts to be more evenly split than the country at large on the issue.

Many Democratic legislators had to juggle the concerns of their more gay-friendly liberal constituents with those of socially conservative Catholic voters in their districts. Any vote either way is sure to anger large numbers of Bay State voters.

Consequently, there were a lot of gay marriage opponents who didn't understand the arguments for their position because they were only striking a pose to avoid constituent backlash. Similarly, a lot of his-and-his supporters were heard making hyperbolic statements that take for granted that this issue is the civil-rights struggle of the 21st century and that any concerns about the consequences of redefining marriage amount to homophobia.

State Sen. Diane Wilkerson, in an unintentionally hilarious moment during the debate, broke down in tears. She compared anti-gay discrimination with her prosecution for, and conviction on, charges of tax fraud.

BUT THE EFFORT to amend the state constitution really broke down over tactical differences among gay marriage opponents with regard to civil unions. Traditionalists could not agree whether to explicitly include civil unions in an amendment banning gay marriage, to allow a future vote on the issue, or to ban them as well.

Attempts at compromise failed due to perceptions of bad faith. Some legislators did not want to vote for Senate President Robert Travaglini's amendment including civil unions because they suspected he did not really in principle object to gay marriage; others did not vote for House Speaker Tom Finneran's amendment to ban gay marriage but reserve the power for the legislature to allow civil unions in the future because they suspected he was not really in favor of civil unions.

In the end, they did nothing. Most Massachusetts legislators do not favor gay marriage. But they cannot agree on a way to amend the constitution to prevent it. If they do not, it will happen. Even if they do, it will probably happen, at least from this May until 2006.

The constitutional fight will nevertheless carry on another day when the joint session reconvenes, though the prospects for serious action are not promising. The drama may prove entertaining for some in the peanut gallery, but tragicomedies are an acquired taste.

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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.