Those Darn Activist Judges!

Yesterday, in a unanimous decision, the Mass. Supreme Judicial Court gave final approval to the ballot initiative that would ban all further same-sex marriages in Massachusetts. The short version of the argument was that the petition did not constitute an unconstitutional reversal of a court decision because even if it were approved, the Goodridges, et al, would still be married -- though no further gay and lesbian couples would be able to do likewise.

I'll repeat what I said at the time. It never really mattered which way Tom Reilly decided on the certification of the ballot initiative. If he had gone the other way, anti-marriage groups would have appealed, been able to collect their signatures anyway, and we'd still be where we are today. Keep in mind that Reilly made his decision before last year's Constitutional Convention, where the Travaglini-Lees civil union compromise amendment failed largely because opponents knew that this more restrictive amendment was going forward. It's not impossible that, had Reilly struck down the petition, that we'd be voting on marriage equality this year instead of (potentially) 2008.

That being said, the question now goes to a vote tomorrow before a joint session of the legislature. The measure requires a mere 50 votes out of 200 this year and next before it can go to the voters in 2008. There is talk that the legislature will use procedural maneuvers to prevent the measure from going to a vote -- as it has on other issues in the past. While folks like like Scot Lehigh and Jon Keller tell us all how terrible it would be if the ban was blocked without a vote, I'm not so sure. I respect the process, but the SJC has admitted that it cannot force the legislature to vote on anything. If there's no enforcement possible, is there really an obligation to vote? I for one will shed no tears if the amendment is killed without coming to a vote.

While I'm hopeful that supporters of marriage equality will be victorious should it come to a vote, I don't think anyone should underestimate the organization of anti-marriage groups, particularly those coming in from out-of-state. They are going to spend money and resources like it's the end of the world (which some of them may actually believe). On the other hand, many people don't particularly care whether gays and lesbians are able to get married. Will they be motivated to go to the polls to vote against the ban? A well-funded, organized minority can certainly triumph on election day, even if a majority of the entire populace disagrees with them.