Governor Mitt Romney said yesterday that he would ask the Supreme Judicial Court to override the Legislature and let voters decide whether to ban same-sex marriage, telling a boisterous crowd of several thousand at a State House rally that lawmakers are violating the state constitution by refusing to act on the proposal.
Conservative and religious groups gathered a record 170,000 signatures on a petition to put the proposed ban on same-sex marriages on the 2008 ballot, but the measure also requires the support of at least 50 legislators in two consecutive sessions to qualify for a statewide referendum. On Nov. 9, legislators voted 109 to 87 to go into recess rather than vote on the gay marriage ban, all but dooming its chances of appearing on the 2008 ballot.
"The issue before us is not whether same-sex couples should marry. The issue before us today is whether 109 legislators will follow the constitution," declared Romney, promising to send the 109 lawmakers a copy of the constitution and their oath of office to underscore his frustration. "Let us not see the state, which first established constitutional democracy, become the first to abandon it."
A spokesman for Romney said he would file a lawsuit with an SJC justice this week, urging the justice to direct Secretary of State William F. Galvin to place the issue on the state ballot anyway on the grounds that the Legislature is obstructing democracy.
State Police estimated the crowd at about 5,000 people, with gay marriage opponents significantly outnumbering supporters.
"On an issue as important as marriage, I think the people deserve a chance to vote," said Rich Sorcinelli , who traveled from West Springfield to pressure the Legislature to allow a statewide referendum on same-sex marriage. "Less than this has brought wars. This is what brings civil disobedience."
But proponents of same-sex marriage at the rally said lawmakers deserved praise, not a lawsuit, for blocking the gay marriage ban from reaching the ballot.
"As soon as you go down the path of the majority voting on the rights of the minority, you're going down a dangerous path," said Ken Repp of Waltham who attended the rally with his husband of 2 1/2 years, Christopher Johnson .
A specialist on Massachusetts constitutional law said Romney's legal appeal is unlikely to succeed, in part because it is premature. Legislators still have one day to vote on the same-sex marriage ban on Jan. 2, the last remaining day for current legislators, said Lawrence Friedman, an assistant professor at the New England School of Law. He also said Romney's legal argument is wrong.
"That's a lawsuit that is probably a waste of taxpayers' dollars," said Friedman , who filed a legal brief in support of same-sex marriage when it came before the SJC in 2003. He said he is not involved in the current debate. "The constitution doesn't actually require the Legislature to take a vote. It says that they have to discuss it and debate it, and I don't think there is any good argument that there hasn't been a lot of discussion and debate."
The rally was more about high political drama than the nuances of constitutional law. Opponents and proponents of same-sex marriage stood across Beacon Street from each other. One side chanted "Let the people vote;" the other, "Let the people marry."
Romney and other speakers stood before an enormous American flag draped across the State House doors, while nuns distributed anti gay marriage brochures in the crowd below. On the other side, proponents of same-sex marriage shouted "bigot" and "shame" as Romney and others spoke.
Lieutenant Paul Maloney , a State Police spokesman, said he knew of no arrests at the rally despite the strong sentiments.
Romney, whose staff helped organize the rally, is considering a 2008 presidential bid, and some critics accused him of using the issue to sharpen his conservative credentials nationally before he steps down as governor.
But Romney's chief spokesman, Eric Fehrnstrom , said the personal attacks on his boss show the weakness of the argument against letting voters decide. "The governor has a constitutional role to play in making sure that the Legislature votes on matters that are brought to them by the people," said Fehrnstrom. "He is using the bully pulpit of his office to get the Legislature to uphold its constitutional obligation."
Romney's planned appeal to the SJC underscores his limited options to force the Legislature to act. It was the state's top court that in 2003 ruled to legalize marriages between same-sex partners in the first place. The 4-to-3 decision triggered a powerful backlash among social conservatives, who formed an umbrella group, VoteonMarriage.org , to gather the required 60,000 signatures for a statewide referendum on same-sex marriage. Although the group gathered more than twice the signatures necessary, legislators have declined to vote directly on the proposal, making it impossible for those who support the ban to show they have the required support of 50 legislators.
As recently as Nov. 9, Romney acknowledged that his legal options are limited.
Friedman said that, under Massachusetts' constitution, voters have no right to vote directly on issues unless the Legislature decides to allow it.
Yesterday, though, Romney said there is no question that the majority of state legislators on Nov. 9 decided to "usurp the Constitution, to abandon democracy, and substitute a form of what this nation's founders called tyranny" for the will of the people. He said the constitution "plainly states" that legislators must vote directly on petitions from citizens.
Senate President Robert E. Travaglini and House Speaker Salvatore F. DiMasi could not be reached for comment.
Roberto Miranda , chairman of VoteonMarriage.org, said that the Legislature's refusal to act has given gay marriage opponents the moral high ground in the debate. He said that gay people "portray themselves as victims, but in this case they act as oppressors."
Scott Allen can be reached at email@example.com.