This afternoon, the Massachusetts Legislature allowed a proposed constitutional amendment to move closer to the ballot, when 61 legislators--just over 30 percent of the total membership--voted for it in a constitutional convention. When proposed amendments are initiated by petition, as this one was, the Massachusetts Constitution requires the vote of only 25 percent of legislators in two successive legislative sessions to send a matter to voters. Most legislators are opposed to the proposed amendment, but they knew that enough were in favor to send it forward if it came to a vote. Attempting to derail that, a constitutional convention was adjourned several months ago. Today, the final legislative session, was the last chance to vote on the amendment. Last week, the Supreme Judicial Court of Massachusetts declared that legislators were bound to vote, but noted that, due to the separation-of-powers doctrine, the court could not force senators and representatives to do so.
Still, there was doubt about whether a quorum would be present in the House chamber for today's session. Governor-elect Deval Patrick and supporters of same-sex marriage such as the ACLUM (the Massachusetts affiliate of the ACLU) urged legislators to avoid a vote.
Well motivated as they might have been they were wrong, the Supreme Judicial Court was right and the members of the legislature deserve credit for recognizing their responsibilities.
In case you are a new reader, the editor is a strong supporter of same-sex marriage, and he intends to work strenuously to defeat the proposed amendment if it does get to the ballot. But upholding the process established for amending the state's constitution is also vital. Justice Felix Frankfurther once said that the history of liberty is in some sense the history of procedure. This is the kind of issue he was talking about.
Opponents of the vote often said that civil rights should not be on the ballot. That may sound good, but if you think about it, it does not make sense--at least not the kind of sense that those who believe in democratic government should support. The Bill of Rights was adopted by a democratic process--as democratic as the Republic had at the time. The same was true of the Civil War amendments that outlawed slavery and established the basis for racial equality, and for the 19th Amendment, which provided for women's suffrage. We say that all government depends on the consent of the governed, and that is just as true for matters of civil rights as for all others. The process is made difficult, because we recognize that the passions of the moment should not lead to changes in the basic structure of government, but when the procedural requirements are satisfied, it is dishonest and ultimately self-defeating to employ parliamentary maneuvers to stop a measure from consideration.