Homosexual Marriage Ban Gets New Life From Mass. Court

By Robert B. Bluey | July 7, 2008 | 8:04 PM EDT

(CNSNews.com) - Supporters of a ban on homosexual marriages in Massachusetts are lauding a state Supreme Judicial Court ruling last week that might revive the issue that died in July when the Legislature adjourned without acting on it.

The Massachusetts Citizens for Marriage hopes to put a referendum on the ballot in 2004 that would outlaw homosexual marriages, but before voters can have a say in the matter, several procedural steps must first take place.

The amendment's supporters collected more than the 57,000 required signatures, but in order for a referendum to be placed on the ballot in Massachusetts, it must receive 25 percent support from legislators.

A vote never took place, however, primarily because the Democrat-controlled Senate and House wanted to kill the measure, said attorney J. Edward Pawlick of Massachusetts Citizens for Marriage.

The Supreme Judicial Court, or SJC, ruled the adjournment did not constitute a "final action" on the amendment, Pawlick said, meaning that legislators should vote on the matter.

Friday's decision by the SJC also puts the onus on Republican Acting Gov. Jane Swift, Pawlick said. The Legislature might have the authority to convene itself, he said, but the governor clearly has the responsibility to do it before time expires on Dec. 31.

If no action is taken by the end of the year, organizers of the homosexual marriage ban would be back to square one, having to collect the necessary signatures and then prod legislators to take up the amendment in 2003.

The governor's office and Senate President Thomas F. Birmingham pointed at each other Monday, with neither side eager to take the first step in reconvening the Legislature.

"At this point, we are going to take a few days and see what course of action the Legislature chooses to take before the governor makes any decisions," Swift's spokeswoman, Sarah Magazine, said. "Right now we feel it's up the Legislature to see what they're going to do. The SJC clearly said they did not take final action."

Even though the court ruled the adjournment did not constitute "final action," Birmingham does not believe the Legislature has the authority to reconvene without a directive from Swift, spokesman Paul Wingle said.

"We don't have any independent authority in this office to call the Legislature back," Wingle said. "The ruling seems to give [Swift] some discretion. She can decide whether or not it would be futile at this point in the year to try, but it's her call. It's her call entirely."

Pawlick had harsh words for both Swift and Birmingham if they decide to let the amendment die without a vote. He plans to sue the governor and all legislators who voted to adjourn on July 17.

"The primary desire of my clients is to have a vote on the amendment," Pawlick said. "But a suit for damages is clearly a viable option if they are forced to go that route, now that the SJC has indicated that legislators did violate the state constitution."

Two other amendments died in July upon adjournment, including a review for judges appointed to lifetime terms and another that would allow the governor to appoint a lieutenant governor if the office became vacant.

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