Gay marriage and legislative politics

LET'S FACE FACTS.

Massachusetts citizens have no right to amend their constitution if the Legislature disapproves.

Not as far as the modern Legislature is concerned, anyway.

Yes, I know, the constitution itself says otherwise. Its clear intent is that if a proposed amendment can win the support of one-fourth of the Legislature in two successive sessions, the matter should go to the ballot for citizens to decide.

But in reality, lawmakers have nullified Article 48, the provision that allows the state constitution to be altered that way.

The immediate evidence that supports that conclusion is the fate of the same-sex marriage amendment. Gay marriage strikes me as an issue of fundamental fairness. But I don't think supporting marriage equality should mean trampling on the constitution to thwart the opposition.

And that's what happened last week when the Legislature, reprising its 2002 maneuver on a similar proposal, voted to recess its joint session without taking up the amendment to ban gay marriage. The obvious goal was to kill the measure -- and absent a change of mind, it will now die when the legislative session ends at midnight on Jan. 2.

Contrary to what gay marriage opponents said, the Legislature wasn't obligated to "let the people vote" by automatically sending the amendment to the ballot.

But they themselves should have voted on it.

If lawmakers could have denied the amendment the 50 votes it needed to proceed, they would have dealt it a perfectly legitimate defeat. Because a proposed amendment must meet the 50-vote threshold twice, such a defeat could have come either this year or in the 2007-2008 session.

Even if the amendment had cleared those hurdles, it seems likely that Massachusetts voters would have defeated it at the ballot.

No matter. For same-sex marriage supporters, the opportunity to kill the amendment now simply proved too tempting -- even though doing so meant abusing the constitutional process.

And if you think that only amendments to ban same-sex marriage suffer process abuses, well, think again. The Health Care for Massachusetts Campaign has collected some 66,000 signatures for an amendment to guarantee affordable, comprehensive healthcare for all state residents. That amendment got 153 legislative votes in July 2004.

But the legislative leadership was skeptical of the measure. And so, in July, the Legislature sent the healthcare amendment to a so-called study committee, a long-established method of scuttling something without killing it outright.

That amendment, too, deserved an up-or-down vote. Had it received one, it would likely be heading for the 2008 ballot. Instead, it too is all but certain to die on Jan. 2.

A similar evasion occurred in 1992 and 1993, after activists brought a term limits amendment to the Legislature. Led by then Senate President William Bulger, lawmakers buried the measure deep down on the agenda, and then adjourned without voting on it.

And in 1990, Bulger used delaying tactics to defeat two other amendments, one to guarantee abortion rights, another to ensure high-quality public education.

Why does it matter? Listen to Donald Stern, who served as legal counsel to Michael Dukakis and later as US attorney, and who is now representing the healthcare campaign.

"The constitution provides that mechanism for voters to decide whether to amend the constitution or not," Stern says. "If the Legislature can simply not vote, and by that inaction deny the voters the right to have a matter placed on the ballot, they will have taken away an important right."

Well, you may say, if legislators offend, citizens can simply vote them out of office.

That's true in theory -- but not in Massachusetts. With incumbents benefiting from a short general election campaign, huge competition-inhibiting war chests, and a weak Republican Party, many legislative seats are virtual fiefdoms. (Recall that when voters passed a 1998 ballot question to level the playing field by establishing public financing for campaigns, the House leadership determinedly torpedoed the measure.)

I realize it's hard for people to look beyond their own position on an issue to consider constitutional concerns. Instead, the ends will almost inevitably justify the means for partisans.

But there's a broader principle at issue here: Do citizens really want a Legislature that repeatedly ignores an essential provision of the very constitution it is sworn to uphold?

Further, if lawmakers can disregard the constitution with impunity, who, really, is sovereign?

After last week, it's hard to argue that the real amending power lies with the citizens.

Scot Lehigh's e-mail address is lehigh@globe.com.