contacts:
Ann Morse Hartner | Rosenberg, Freedman & Goldstein | ahartner@rfglawyers.com
Kate Cook | City of Boston Law Department | kate.cook@cityofboston.gov
June 2007:
WBA applauds defeat of Constitutional amendment to ban same-sex marriage
October 2006:
We’ve made progress but our job has only just begun!
The Fact Sheet
Marriage Equality in Massachusetts
In the Fall of 2003, the Massachusetts Supreme Judicial Court, in its landmark decision, Goodridge v. Department of Public Health, acknowledged the fundamental rights of gay and lesbian couples to marry under the laws of the Commonwealth. Before the combined Massachusetts Legislature now is a proposal to end marriage equality in Massachusetts and write discrimination expressly into the Massachusetts Declaration of Rights.
The debate over recent years has been intense, tumultuous and sometimes confusing. Here is a primer to assist our members in understanding where things stand today––and where things have been.
I. The “Protection of Marriage” Amendment and the Constitutional Convention
A. Text of proposed citizen-initiated constitutional amendment currently before the Massachusetts Legislature:
When recognizing marriages entered into after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman.
B. The constitutional amendment process:
Generally: Massachusetts citizens, upon a majority vote, may amend the Massachusetts Declaration of Rights. There are two routes by which proposed constitutional amendments can come before the voters. The first is if the Legislature proposes an amendment. The second is by citizen’s petition. Following that latter route requires the gathering of sufficient signatures, the certification of the signatures by the Secretary of State and the approval of the ballot question by the Attorney General’s office. It then requires that the combined Legislature, sitting in Constitutional Convention, approve sending the ballot question to the ballot, sitting in two different and consecutive Constitutional Conventions. Approval is secured when 25 % of the combined legislature, 50 votes out of 200, agree to put the ballot measure before the voters.
What is before us now: Proponents of the current amendment to ban same-sex marriage gathered in excess of 170,000 raw signatures between Sept. 23 and Nov. 23, 2005 and delivered to 333 of the 351 towns and cities of the Commonwealth of Massachusetts. On Dec. 5, the towns reported 148,234 certified signatures. On Dec. 20, the Secretary of State certified 123,356 signatures. Attorney General Thomas Reilly certified the ballot question.
The current amendment now awaits approval or rejection and is slated to come before the Constitutional Convention on November 9, 2006.
If approved by two consecutive constitutional conventions, that is, by Constitutional Conventions in 2006 and 2007, the ballot goes to the voters. Massachusetts voters could vote on this amendment in November 2008.
In the 18 other states where voters have voted on similar ballot initiatives, the initiatives have passed.
C. History of the attempts to ban - or recognize - marriage equality for gay and lesbian couples in Massachusetts
In 2001, opponents to same-sex marriage conducted a citizen petition signature drive in order to place on the ballot a constitutional amendment defining marriage as exclusively the union of one man and one woman. Nearly 130,000 signatures were collected in the fall of 2001.
That petition did not proceed to the ballot, because the 2002 Constitutional Convention was adjourned without considering it.
In 2003, Rep. Phil Travis (D-Rehoboth) filed a new marriage amendment called the Marriage Affirmation & Protection Amendment.
In 2004, the Constitutional Convention met over three days and considered the proposed legislative amendment. It was modified and rewritten to include the establishment of same-sex civil unions with full equality to marriage. This amendment, known as the Travaglini-Lees amendment, after its two lead sponsors, Sen. Robert Travaglini (D-East Boston) and Sen. Brian Lees (R-Indian Orchard), was approved in the Constitutional Convention by a vote of 105-92. The more draconian amendment––that would have denied any marriage-related benefits to same sex couples––was defeated.
When the Travaglini-Lees Amendment was considered again by a Constitutional Convention convened on September 14, 2005, it was defeated by a vote of 157 to 39.
The current citizen-initiated amendment began with a signature drive in June, 2005 and makes no provision for civil unions or the granting of any marriage-related rights to gay and lesbian couples.
II. The Goodridge decision
On November 18, 2003, the Massachusetts Supreme Judicial Court decided Goodridge v. Department of Public Health, 440 Mass. 309 (2003). For the full text, go to http://www.masslaw.com/signup/opinion.cfm?page=ma/opin/sup/1017603.htm.
The SJC declared unconstitutional the policy of granting marriage licenses only to heterosexual couples, paving the way for gay and lesbian couples to begin marrying in May 2004. Chief Justice Margaret Marshall concluded that, “the right to marry means little if it does not include the right to marry the person of one’s choice.”
In February of 2004, in SJC-09163, the SJC issued an opinion reaffirming the meaning of Goodridge. For the full text, go to http://news.findlaw.com/cnn/docs/conlaw/maglmarriage20304.html.
We’ve made progress but our job has only just begun!
The 2006 Legislative session ended with movement, although only one victory, on WBA priority legislation. While the legislature may re-convene after the fall election, it is unlikely that our bills will be on the expected very limited agenda.
The one victory: The WBA priority support for civil legal services funding (FY2007 budget item 0321-1600) was successful. We also supported funding for Battered Women’s Legal Assistance Project, a program for advocacy for Medicare beneficiaries’ home health care and a Disability Benefits Project. This year legal services was not cut but was level funded.
The WBA has fought long and hard to ensure marriage equality for all Massachusetts citizens, and it is critical to our mission that the Legislature votes against the constitutional amendment to ban same sex marriage. On July 12, lawmakers held a constitutional convention (ConCon), a joint session of the legislature, with several amendments on the agenda including an amendment to ban equal marriage rights. There is good news and bad news about the ConCon results. The good news is that a motion to adjourn the ConCon until November 9, passed by a narrow majority, and this gives the WBA and our allies more time to secure the needed votes to defeat this amendment on November 9, 2006. The bad news is the hateful amendment must still be stopped in its tracks! We must convince 151 legislators to vote against this measure; only 50 votes are needed to keep it alive for the next session. To keep equal rights a reality and fight the move to constitutionalize discrimination, WBA members must help! Contact your state senators and representatives and remind them that civil rights should not be subject to a popular vote as a ballot question but remain a guarantee of our state constitution. WATCH FOR ACTION ALERTS!!
On another, glass is half empty or half full front, the historic work of the WBA on bringing our annuities legislation into compliance with the Equal Rights Amendment made serious progress this session. One of our longstanding priorities, “An Act Relative to Equitable Coverage in Annuity Policies” (S619; H2970) would end annuity pricing and practices which violate our state ERA and would prohibit discriminatory practices on the basis of race, color, religion, sex, marital status or national origin made. On July 26, 2006, the annuities bill passed the House with a vote of 115-40. Unfortunately the Senate, which had supported the bill in the past, did not have a chance to vote on the legislation because it was not allowed on the agenda by Senate President Travaglini. Thus, as we have for many years, the WBA will keep fighting to end discrimination against women in annuities policies in the 2007 legislative session.
As for other developments, the WBA priority of ensuring that vulnerable women and families keep their benefits, known as An Act Responsible for Welfare Reform (S2217, H4378). This legislation was enacted by the Senate and House as H5212, and returned to the Governor for amendments. The final form is still pending. We continue to fight to ensure that Massachusetts children are taught comprehensive health education, including sex education. And, An Act to Provide Health Education in Schools (H1641, S102) inserts a defined curriculum into the core curriculum for K-12. On March 16, 2006, the education committee gave the legislation a favorable report and referred it to Senate Ethics and Rules.
Many of our other priorities remain in study, including:
An Act Improving Spousal Elective Share (S948) - This compromise version of a WBA/BBA-drafted bill modernizes property rights of surviving spouses; under current law a spouse has stronger rights to marital property if s/he divorces rather than stays married. The bill provides safeguards against evasion, notice, right to know the decedent’s assets and procedural rules absent from current law;
An Act Prohibiting Discrimination in Insurance Policies (S673); and An Act Creating a Department of Correction Advisory Board to monitor Dept. of Corrections was recommitted to Committee on May 4, 2006, and July 13, 2006. (H1912).
Good news, bills that the WBA opposes also went to study: Acts Relative To Responsible Parenting - The bills would harm children because they usurp and overrides the Court’s practice of using the “best interest of the child” standard when deciding child custody. (S841, S855, S994, H623, H834, H919); and Section 202, Uniform Child Custody Jurisdiction Enforcement Act. Section 202 of this bill changes the progressive MA approach to removal and jurisdiction and endows judges with continued jurisdiction no matter whether a co-parent lawfully moves to another state with her child. This would strain poor co-parents, hurt women, and give domestic abusers a tool to manipulate and harass the co-parent.
The WBA was founded by a group of feminist lawyers who knew that together we can make social justice a reality—in the courtroom and through legislation. The Legislative Policy Committee works to achieve this never ending mission, and we need your help! We meet the last Thursday of the month, and all WBA members are welcome. Come be a part of something bigger than yourself, and help us make change.