A New Twist in the Same Sex Marriage Debate

May 11, 2007

CAMBRIDGE, Mass. --Attorney General Martha Coakley on Friday warned that a proposed state constitutional referendum seeking to ban gay marriage may be unconstitutional and may trigger protracted litigation if voters endorse the change in the nation's oldest state constitution.

Coakley, in remarks prepared for delivery to the Massachusetts Lesbian and Gay Bar Association, urged the group to press legislators to keep the question off the 2008 ballot. But if the lawmakers reject their calls, the state's chief law enforcement official said she would support those challenging the change.

Coakley addressed the group a day after Gov. Deval Patrick said he was actively lobbying legislators to kill the proposed amendment before it is put on the 2008 ballot.

Lawmakers on Wednesday postponed a vote until at least June 14 after a joint session of the House and Senate convened and quickly recessed without the vote.

Before it can reach the ballot, the proposed amendment needs the backing of a quarter of the state's legislators -- 50 lawmakers -- in two successive sittings of the Legislature. It won approval in the previous Legislature in January, on the final day of the session.

Coakley said that even though the Supreme Judicial Court ruled last July that the proposed amendment could be placed on the ballot if approved by the Legislature, at least two justices also questioned whether the amendment is constitutional.

She quoted a joint court opinion by Justices John Greaney and Roderick Ireland saying the 2003 SJC decision that legalized same-sex marriage "may be irreversible because of its holding that no rational basis exist, or can be advanced, to support the definition of marriage" as only between a man and a woman. The opinion also noted that the amendment would discriminate against same-sex couples by removing rights they already had been granted.

Some 8,500 same-sex couples have married in Massachusetts since the state offered the first civil marriage licenses to gay couples three years ago this month, Coakley said.

"The sky has not fallen and life goes on ... the institution of marriage is alive and well" in the state, despite predictions that same-sex marriages would wreak havoc, she said.

Neither the Massachusetts nor the U.S. constitution "has ever been an instrument of discrimination and we shouldn't start now," Coakley said.

"I believe it would be a travesty to the oldest constitution in the country, a constitution anchored by John Adams and one which has such a proud tradition of championing and expanding civil rights ... to now be used to take away rights for a segment of the population," she said.

She said she expects "protracted, hard-fought litigation" challenging the constitutionality of the amendment if it were passed.

"If that battle is necessary, you have my support," Coakley said.

This is an excellent development and one to surely get a lot of discussion in the days ahead.