Mass. Court Asked To Hear Homosexual Marriage Case

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

( - A pre-emptive ban on homosexual marriages in Massachusetts, which appeared dead with the passing of 2002, could get a new lease on life in the state's highest court.

Massachusetts Citizens for Marriage, a group pushing for the ban even before homosexual marriages have been legalized, sued the state Thursday for failing to fulfill its "mandated duty."

The group had collected the 57,000 required signatures to get the Legislature to address the issue, but lawmakers adjourned July 17 without taking a vote.

"The Legislature has failed and refused to follow its mandated duty to vote on the Protection of Marriage Amendment," according to the complaint filed by J. Edward Pawlick, attorney for Massachusetts Citizens for Marriage.

Pawlick is asking the court to interpret the Legislature's failure to act on the amendment in 2002 as a "Yes" vote and instruct the Legislature to take up the issue again in 2003. This, hypothetically, would allow Massachusetts voters to decide on the amendment in 2004.

In order for a constitutional amendment to be placed on the ballot for voters in Massachusetts, at least 25 percent of lawmakers must vote in favor of the measure in two consecutive legislative sessions.

Pawlick said it would also be an opportune time for fixing the law dealing with the offering of constitutional amendments.

"There is obviously something broken," Pawlick said. "The Legislature is just thumbing their nose at everybody, but this was so flamboyant, I don't see how the Supreme Judicial Court can do anything but move it onto the next Legislature."

Sean Haley, executive director of the Boston chapter of the Gay, Lesbian and Straight Education Network (GLSEN), which opposes the amendment, declined to comment on Pawlick's complaint. He said, however, that he would prefer the matter be settled in the courtroom rather than as a referendum before voters.

"This is a tremendously sensitive issue," Haley said. "This is an area around civil rights and human rights that may not be appropriate for a majority vote. When other civil rights issues have been decided, they've been decided through a court process."

Under threat of a lawsuit, outgoing Republican Gov. Jane Swift and Democratic Senate President Thomas F. Birmingham asked the Supreme Judicial Court to interpret their responsibilities. In its Dec. 20 ruling, the court found that the Legislature's adjournment did not constitute a "final action." The court did not address the next appropriate step, however.

Pawlick said he was left with no other option but to file the lawsuit when the state failed to act by Dec. 31. He has also threatened a federal suit against Swift and legislators for infringing on his First Amendment rights by voting to adjourn July 17.

If Massachusetts Citizens for Marriage is unable to get the retroactive passage of the amendment and a "Yes" vote in the next legislative session, it would have to start the whole process over again.

See Earlier Story:

Homosexual Marriage Ban Gets New Life From Mass. Court

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