Activist Judges to the Rescue

Is Romney nuts?

That was more of a rhetorical question, folks. After being thwarted by the legislature just two weeks ago, our lame (duck) governor is now looking to the Supreme Judicial Court of Massachusetts to intervene in the same-sex marriage debate—yes, that’s right, the same seven judges who started it all back in 2003 with the Goodridge decision that extended marriage rights to same-sex couples. Romney announced yesterday that he will ask the state’s highest court to order onto the November 2008 ballot a question putting same-sex marriage to the voters if the legislature fails to take up the issue when they reconvene in joint session on January 2, 2007, the last day of the legislative session.

You will recall that a few weeks ago on November 9, the legislature voted to recess their joint session without actually voting on whether or not a constitutional amendment banning same-sex marriage should be put to the voters as a ballot question in November 2008. Romney, who hopes to run for president in 2008, wants desperately to see the question of same-sex marriage puts to the voters and is probably having weekly wet dreams in which on the morning following the November 2008 elections, he opens the newspaper to learn that not only is he the new president elect, but that the people of Massachusetts have done the Lord’s will by voting to amend their constitution to prohibit same-sex marriage.

Clearly Romney’s decision to call upon the state’s highest court shows that he is out of ideas. It is the legislature’s prerogative to determine which constitutional amendments are put to the voters in the form of ballot questions. That is the way our representative democracy works. For someone who has been screaming about activist judges for the past three years, Romney ends up looking like a shrill, bigoted fool when he asks the state’s highest court to step in and play referee between the legislature and the 170,000 homophobes whose signatures on the original initiative petition brought the issue of same-sex marriage to the legislature for the second time in three years.

Opponents of same-sex marriage regard the legislature’s failure to vote on the initiative petition as a subversion of democracy. In fact, it is too early to make that determination. The legislature still has one more opportunity in January 2007 to decide whether or not to put the ballot question before the voters. However, it is clear that they have no intention of voting on the issue at that time. It is in response to that eventuality that Romney has asked the court to intervene, but clearly he is premature. How can he ask the court to rule on a contingency? I’m not a legal expert, but I’d be shocked if the court agreed to rule on what they’ll do if the legislature fails to vote in January.

I’m not even certain that the court even has jurisdiction here. The constitution talks about what happens if the legislature adjourns without having taken action on the initiative petitions put before them. In that case, the governor can call them back into session:

“and if the two houses fail to agree upon a time for holding any joint session hereby required, or fail to continue the same from time to time until final action has been taken upon all amendments pending, the governor shall call such joint session or continuance thereof” (Article XLVIII, Part IV, section 2).

It says nothing about the court’s role in this process. It is the governor’s prerogative to call the legislature back into session if they fail to vote on the petitions put before them. In this case, however, the legislature has agreed to reconvene on January 2, the last day of the legislative session. Deval Patrick will be inaugurated two days later on January 4.

What Romney is basically asking the court to do is compensate for the fact that he will no longer be governor and therefore no longer be in a position to order the legislature back into session. In effect, he’s asking the court to usurp the governor’s role, since the man who will become governor on January 4 has made it clear that he has no intention of doing anything if the legislature fails to vote on same-sex marriage in January.

I might be wrong, but I don’t really see the court helping him out here. Perhaps he should have thought of that before he decided not to seek a second term.