Massachusetts High Court Does Not Force State Legislature's Hand on Gay Marriage

BOSTON – The state's highest court on Wednesday said it had no authority to force lawmakers to vote on a proposed constitutional amendment to ban gay marriage, even if the legislature is showing "indifference or, or defiance to, its constitutional duties."

Opponents of same-sex marriage who were angered that lawmakers failed to act on the proposed amendment during a joint session in November had sued, asking the Massachusetts Supreme Judicial Court to clarify if the state's constitution required lawmakers to vote.

The court, the same panel that ruled in 2003 that the state constitution guaranteed gays the right to marry, issued a scathing rebuke of lawmakers but said it could not compel them to act.

"Beyond resorting to aspirational language that relies on the presumptive good faith of elected representatives, there is no presently articulated judicial remedy for the Legislature's indifference to, or defiance of, its constitutional duties," the justices wrote.

Opponents of gay marriage collected signatures from 170,000 people in an effort to get an amendment on the 2008 ballot that would define marriage as only between a man and a woman.

But the amendment needs the support of a quarter of the legislature to move to the ballot. In November, lawmakers voted to recess their joint session rather than vote on the question.

Gay marriage opponents, including Gov. Mitt Romney, filed suit, arguing the people's will was being thwarted and lawmakers were violating their right to petition for a constitutional amendment. A spokesman for Romney, who was on vacation, had no immediate comment.

The state's highest court said drafters of the provision that allows for citizen petitions "did not intend a simple majority of the joint session to have the power effectively to block progress of an initiative."

"Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote by yeas and nays on the merits of the initiative amendment (or by other procedural vote of similar consequence), ultimately will have to answer to the people who elected them," the court said in its 11-page ruling.

The state attorney general's office, representing state Senate President Robert Travaglini, had urged the court to stay out of the dispute, citing the separation of powers between the legislative and judicial branches.

It argued that voters unhappy with lawmakers for refusing to take up the question can vote them out of office.

More than 8,000 gay couples have been married since 2004 in Massachusetts, the only state to allow gay marriage.

The proposed amendment would have banned future gay marriages, but left those already made intact.

Gay marriage opponent argue the people, not the courts, should define something as important to society as marriage.

Gay marriage supporters say the marriages have benefited the state and that the civil rights of a minority shouldn't be put to a popular vote.