Reilly OKs gay marriage initiati

Reilly OKs gay marriage initiative
By Theo Emery / Associated Press
Thursday, September 8, 2005

BOSTON -- A proposed citizen initiative that would ban gay marriage passed a key hurdle yesterday when Attorney General Tom Reilly ruled the ballot question is permitted under the state constitution.

The action by Reilly, a Democrat running for governor in 2006, clears the way for the Massachusetts Family Institute and its allies to gather signatures of thousands of Massachusetts voters, and throws new doubt on the fate of an existing proposal to ban gay marriage.

If the petition effort is successful, the question then must by approved by two successive sittings of the 200-member state Legislature. The question would then be placed before voters as a constitutional amendment in November 2008.

Reilly said that he personally disagreed with the amendment, but was following the letter of the law.

"I do not agree with this amendment," he said. "There are a half dozen other amendments that I do not agree with. And I will speak out at the appropriate time... Today, I'm doing my job."

Kris Mineau, president of the Massachusetts Family Institute, said he was pleased with Reilly's decision.

"It was obviously made on legal and judicial grounds, not swayed by political or special interest groups."

Marty Rouse, campaign director for MassEquality, a pro-gay marriage group, said he was "extremely disappointed."

"We think that (Reilly) has now opened a public debate that could last three long years. It would be a long, expensive, and brutal battle. It will be toxic for the state to have this debate," he said.

The so-called "citizen's initiative" that Reilly certified yesterday is separate from an existing proposal to ban gay marriage that lawmakers hammered out after the court decision legalizing gay marriage.

The existing proposal has already been approved by a majority of the Legislature, and must be approved again next Wednesday to go before voters in November 2006. That plan would ban gay marriage, while legalizing civil unions similar to those approved in Vermont and Connecticut.

The citizen's initiative needs at least 65,825 signatures from supporters before it goes to a vote in a joint session of the House and Senate. But it has a lower threshold for approval from the Legislature: only 25 percent of lawmakers need to support it to send it to the ballot in 2008.

Some opponents of gay marriage, including Republican Gov. Mitt Romney, have said they prefer the new initiative, because it doesn't allow civil unions. Romney praised Reilly's decision yesterday, saying "the Attorney General made the correct decision based on the facts and the law."

The fate of the pending proposal is unclear as next Wednesday's vote nears. Some lawmakers who initially voted for the amendment now say they have dropped their support, in part because of the possibility of voters weighing in on the Family Institute petition. Mineau said he is actively working to defeat the pending proposal.

In a letter last week, Romney urged Reilly to certify the question, saying voters "should not be denied meaningful participation in the legal definition of marriage."

Reilly emphasized that his decision to allow the petition was a legal decision, not a personal political move.

"It would be a violation of my oath if I even looked at it that way," he said.

Deval Patrick, former President Bill Clinton's chief civil rights enforcer who plans to challenge Reilly for the Democratic nomination next fall, said, "I don't buy that."

He called the decision "another example of Tom Reilly flip-flopping on this issue."

"I think a lot of what comes out of this attorney general's decision-making process is that it's 'all politics, all the time.'"

Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders, the group that sued the state over gay marriage and won, said GLAD would challenge Reilly's decision.

He did not specify a timeline, saying that such a suit would likely not be heard until the petition's supporters had collected the needed signatures.

Reilly said he was confident that his decision would pass legal muster.

The state's highest court ruled in 2003 that it was unconstitutional for the state deny marriage licenses to gays and lesbians. The following spring, the nation's first state-sanctioned same-sex marriages began taking place in Massachusetts and thousands of gay couples have since tied the knot.

In August, the Family Institute filed the proposed constitutional amendment defining marriage as between a man and a woman. Former Boston Mayor Raymond L. Flynn's name was atop the list of 30 people who signed the petition.

Yesterday was a deadline for the attorney general to certify citizen ballot initiatives. Reilly was under pressure by advocates of gay marriage to reject the ballot initiative as unconstitutional.

At issue is a clause in the Massachusetts Constitution's Article 48, which "permits the people to petition for a constitutional amendment that overrules a court decision when the court has declared a statute to be in violation of our constitution."

Backers of the initiative say that makes it clear voters have the authority to overrule a court decision, while gay marriage advocates point out that the court case that led to gay marriage rights did not overturn an existing law.

In a letter to gay marriage advocates, Peter Sacks, a deputy in Reilly's office, explained that the petition could proceed because writers of the section of the constitution governing ballot initiatives "clearly meant to allow initiative petitions to amend the words of the constitution in response to a court decision finding a law unconstitutional."

The proposed marriage amendment does not involve the "reversal of a judicial decision," Sacks wrote.