Swift seeks marriage ruling

By Advocate.com Editors

Originally published on Advocate.com December 04 2002 12:00 AM ET

Under pressure from activists, acting Massachusetts governor Jane Swift is seeking advice from the state's highest court about whether she is obligated to recall the legislature to vote on a constitutional amendment that would ban marriages between same-sex couples. Swift, who has one month left in office, announced her own position on Monday, more than four months after the legislature voted to adjourn the constitutional convention--a joint meeting of the house and senate--without taking action on the voter-initiated measure. "I am opposed to the amendment," Swift said. "But the bigger question is whether or not a governor has the obligation to recall the legislature under these circumstances."

The Massachusetts Citizens for Marriage, which sponsored the proposed amendment, has applauded Swift's actions. A spokesman said the organization, which has fiercely campaigned for legislative action, had been actively lobbying Swift to step in. "In our humble opinion, the constitution is very clear," said coalition spokesman Brian Diver. "She is required to call them in until they did what their oath and constitutional responsibility is."

In July the house and senate voted 137-53 to adjourn the constitutional convention without taking action on the amendment. Initiated by 130,000 citizens, the amendment would make same-sex marriages unconstitutional in Massachusetts and accord marriage benefits only to unions between one man and one woman. To appear on the ballot in November 2004, the voter-initiated question had to be approved by 25% of the 200 elected representatives and senators before this two-year legislative session ends and again during the 2003-2004 session. If the amendment had come to a vote, defeat would have required 151 votes in opposition. To kill the amendment by immediate adjournment, only 101 votes were needed--a simple majority. Sen. Harriette L. Chandler (D-Worcester), an opponent of the amendment, argues that the legislature did take action on the amendment by voting to adjourn. "I think that the legislature voted, and it's pretty clear what the vote was," Chandler said. "It wasn't even close."

The state constitution states that if the house and senate "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." Swift said there is some uncertainty in case law, however, about whether the governor is obliged to act if the action is likely to be futile.