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Top Stories This Week in the Chronicle.
December 22, 2006

Both sides agree: Mass. court can't force ban vote

Boston--Attorneys for both sides opined that the Massachusetts Supreme Judicial Court can�t force legislators to vote on a proposed constitutional amendment to ban same-sex marriage, which the state has allowed since 2004.

The revelation came on December 20 during oral arguments in a case brought by Gov. Mitt Romney and ten others, asking the court to either compel the vote or order the secretary of state to put the measure directly onto the ballot.

Assistant Attorney General Peter Sacks spoke for the secretary and Senate President Robert Travaglini. He told the seven justices that the only recourse for citizens is to vote for legislators who would pass the amendment, which was initiated by citizen petition.

To appear on the ballot, 50 lawmakers in two consecutive legislative sessions must vote for it.

Legislators voted November 9 to recess a constitutional convention rather than vote on the measure. This required only a simple majority instead of the three-quarters one needed to kill the amendment.

Recessing instead of adjourning removed Romney�s power to call them back to vote on the measure. The con-con is set to resume on January 2, the last day of the legislative session. Lawmakers are expected to adjourn, killing the amendment.

Romney�s attorney John Hanify admitted that the court lacked the power to force the legislature to vote.

He suggested that the justices remind lawmakers of their responsibility under the state constitution clause for citizen initiatives.

�We�re not asking you to tell the legislature how to do their business,� he told the court, according to the Boston Globe. �We�re only asking you to declare what their constitutional obligations are.�

Hanify�s testimony marked an abandonment of earlier tactics, which construed a single sentence in the constitution as requiring a vote on proposed amendments.

Legal experts in Massachusetts disagreed with that view, instead saying that the sentence described how a vote would be taken, not whether the vote would be taken.

"Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays," the state constitution reads.

Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders in Boston, says there's nothing in the constitution requiring a vote on proposed amendments.

"The constitution just says if there's a vote, that vote has to be by the yeas and nays," he said. "It's a point of accountability so that you're on the record. There is nothing that says there has to be a vote."

Lawrence Friedman, a professor in constitutional law at the New England School of Law, said a close reading of the constitution backs up that view.

Friedman said the language, contained in Article 48 of the constitution, only "dictates the form of a vote, but does not mandate a vote."

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