The Stakes of January 2nd
by Fr. Roger J. Landry - November 17, 2006
Playing politics is nothing new for politicians. We are all accustomed to how legislators, when they may not be able or want to defeat a bill on the open floor, seek to use the rules of the legislative process to their advantage, by relegating bills for "further study," or killing them in committee, or filibustering debate. While such ploys generally leave most people feeling a little dirty about the process — like lawyers' using fine print to swindle widows — they do play by the agreed upon rules of parliamentary warfare. Legislative majorities and minorities, Democrats and Republicans, liberals, moderates and conservatives have all taken advantage of them at one time or another to advance their causes.
What happened on November 9th, however, is of another order. When the majority of Beacon Hill legislators meeting in Constitutional Convention voted to recess until the last day of the legislative term, they were not dealing with pieces of legislation and the rules of the state House of Representatives or Senate. They were taking up citizen-initiated proposed Constitutional Amendments and were therefore bound by the explicit rules of the Massachusetts Constitution which they swore an oath to uphold.
Article 48 of that Constitution specifies that when amendments proposed by citizen initiative petition come before the legislature, "they shall be voted upon," and this action must be "only by call of the yeas and nays." The Massachusetts Constitution, as a check and balance on the Legislature, requires lawmakers to vote, for otherwise the legislative leadership could simply abort initiatives it opposed by refusing to bring them up for a vote. Moreover, in order to prevent the majority from summarily killing any citizen petition of which it disapproves, while still giving the legislature some means to prevent the Constitution from being modified indiscriminately, Article 48 establishes that the petition must receive support of one-quarter of lawmakers in two successive sessions. If it does, then the petition passes to the voters. The only way to kill a petition on Beacon Hill, according to article 48, is to get three-quarters of legislators to vote against it in a convention roll-call.
Opponents of the Protection of Marriage Amendment were not able to line up the supermajority of 151 of 200 votes needed to kill it — and they knew it. Rather than accept defeat and do their duty, they baldly resorted to the unconstitutional means of trying to prevent a vote. As people on all sides of the Protection of Marriage Amendment recognize, the recess until January 2 is just a charade to try to kill the petition without voting on it.
It is enough of an injury to the practice of the constitutional rule of law when four activist justices on the Supreme Judicial Court ignore their duty to interpret the state Constitution and instead decide to insert within it a "right" to same-sex marriage — an invention that would have shocked the authors of the Constitution and almost all of their predecessors on the state's highest tribunal. It's even worse, however, when legislators ignore their oath of office and the constitutional rule of law to prevent citizens from exercising their explicit and un-invented constitutional right to the process of constitutional amendment. If such ploys are allowed to stand, then we would no longer be dealing with a form of government in which the people are supreme and in which all of us are bound by the rule of law.
This is recognized even by opponents of the Protection of Marriage Amendment. As one of them, the Boston Globe's Scot Lehigh, wrote earlier this week, the effect of the lawmakers' action is to say that "Massachusetts citizens have no right to amend their constitution if the Legislature disapproves. … In reality, lawmakers have nullified Article 48… If lawmakers could have denied the amendment the 50 votes it needed to proceed, they would have dealt it a perfectly legitimate defeat. … 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. … 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."
It's obvious that one reason the legislative leadership is trying so hard by unconstitutional means to prevent the Protection of Marriage Amendment from going before the voters in 2008 is because they fear that voters may approve it. But the issues involved in the Constitutional Convention go beyond the redefinition of marriage. It is an attempted practical redefinition of our entire form of government — a rewriting of the Constitution without a Constitutional amendment — to enable a majority of legislators to prevent citizens from amending that same Constitution and keeping their government in check and balance.
Therefore it is critical, in the next six weeks, that citizens remind their legislators where sovereignty rests and that they will not allow their lawmakers to disregard the constitution with impunity. A list of legislators in need of such reminders is found on page 18.
Father Roger J. Landry is pastor of St. Anthony of Padua in New Bedford, MA and Executive Editor of The Anchor, the weekly newspaper of the Diocese of Fall River.
