Massachusetts sued on marriage petition

A homosexual rights legal organization filed a lawsuit yesterday challenging a ruling that allowed a petition drive for a constitutional amendment that would end same-sex “marriages” in Massachusetts.

Massachusetts Attorney General Thomas Reilly “simply got it wrong” in September when he certified VoteOnMarriage.org’s marriage amendment for a petition drive, said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders (GLAD), which filed its lawsuit before the Massachusetts Supreme Judicial Court.

Article 48 of the state constitution says citizens cannot use constitutional amendments to reverse judicial decisions. The sole purpose of the marriage amendment, Mr. Buseck said, is to reverse the court’s 2003 Goodridge decision, which legalized same-sex “marriage” in Massachusetts.

The proposed marriage amendment would allow marriages only between one man and one woman.

Johanna Schulman, president of GLAD’s board of directors, is the lawsuit’s plaintiff. Mr. Reilly and William F. Galvin, secretary of the commonwealth, are named as defendants.

The lawsuit asks the court to find that Mr. Reilly erred when he certified the VoteOnMarriage.org amendment for a signature drive. It also asks the court to block Mr. Galvin from taking any “further steps” to get the proposal on a ballot.

This fall, backers of the VoteOnMarriage.org amendment collected about 170,000 signatures, roughly twice the number needed.

Mr. Galvin certified more than 123,000 signatures in December. GLAD attorneys expect that he will send the amendment to state lawmakers when they go into session today.

The amendment must be approved twice by lawmakers before it can go before voters in November 2008. If the amendment is passed, backers say, it would not nullify existing same-sex “marriages.”

More than 6,500 same-sex couples have “married” since the Goodridge decision went into effect in May 2004.

A spokesman for Mr. Reilly said yesterday that although the attorney general doesn’t support the marriage amendment personally, he thinks that allowing it to proceed was the right decision.

In an opinion column written in September, Mr. Reilly said he looked carefully at the history of Article 48.

Citizen petitions have been used since the early 1900s to amend the state constitution “in response to a court decision finding a law unconstitutional,” Mr. Reilly wrote. Petitions may not be used to “put a law back into effect” after a court has found it unconstitutional, but citizens are clearly allowed to amend the constitution “going forward,” he wrote.

The amendment “was drafted with sound legal advice from constitutional scholars, and as long as the constitution and recent precedent are followed,” it should survive a court review, said Kris Mineau, head of the Massachusetts Family Institute and spokesman for VoteOnMarriage.org.