The state’s highest court ruled Wednesday it had no authority to force lawmakers to vote on a proposed constitutional amendment to ban gay marriage, but it still criticized them for not acting.
Opponents of same-sex marriage had collected 170,000 signatures to get an amendment on the 2008 ballot that would define marriage in Massachusetts as between a man and a woman, but their effort still needed the support of a quarter of the Legislature.
When lawmakers failed to vote on the question in November, the governor and angry opponents sued.
They asked the court to clarify whether the state’s constitution required lawmakers to vote on a proposal that was sent to the legislature by a voter petition drive. The Supreme Judicial Court determined it could not force a vote.
“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 court wrote.
The same court had ruled in 2003 that the state constitution guaranteed gays the right to marry.
In the lawsuit, gay marriage opponents, including Gov. Mitt Romney, argued that the people’s will was being thwarted and that lawmakers were violating their right to petition for a constitutional amendment.
A vote for the people or the courts?
They argue that it should be left to the people, not the courts, to define something as important to society as marriage. Supporters say the civil rights of a minority shouldn’t be put to a popular vote.
“In light of the court’s decision, it’s going to be very difficult for legislators to violate their oath of office by sidestepping a vote,” Romney spokesman Eric Fehrnstrom said.
The proposal must be approved in two consecutive legislative sessions to be included on the 2008 statewide ballot.
Lawmakers are due to meet on Jan. 2 — the last day of the current session — to consider the proposed amendment. Before the scolding from the court, there had been widespread speculation they would adjourn without action, effectively killing the amendment.
In November, the Legislature had recessed before voting on the issue.
The high court, in its ruling, rebuked lawmakers for that move, saying drafters of the provision that allows 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 ... ultimately will have to answer to the people who elected them,” the court said.
The state attorney general’s office 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 over the issue could 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. Other states offer gay couples similar rights but not the title of marriage: New Jersey joins Connecticut and Vermont in February in offering civil unions, and California has domestic partnerships.