Massachusetts's highest court on Monday upheld a ruling dismissing a lawsuit against outgoing state senate president Thomas Birmingham over a proposed constitutional amendment that would outlaw gay marriage in Massachusetts. A group called Massachusetts Citizens for Marriage sued Birmingham as a private citizen, claiming that he acted unlawfully in failing to bring the proposal to a vote. A single justice of the supreme judicial court dismissed the lawsuit in October. On Monday the full supreme judicial court upheld that decision, rejecting the lawsuit. The high court ruled that as a private citizen, Birmingham had no official duties.
If the state legislature does not act before the end of the day Tuesday, the initiative will die, although supporters are threatening to file another lawsuit to keep it alive. Acting governor Jane Swift has indicated that she will not call the senate back to Beacon Hill for a special session Tuesday to consider the proposal. In order to qualify for the ballot in November 2004, the voter-initiated measure would have to be approved by 25% of the 200 state lawmakers by December 31 this year and again during the 2003-2004 legislative session.