An Unlikely ‘Activist Judge’

In 2003, following the now-famous Massachusetts Supreme Judicial Court ruling that legalized same-sex marriage, Massachusetts Governor Mitt Romney said, “The people of Massachusetts should have the right to define marriage. It should not be decided for them by a court.” Last week, the state legislature—representing the will of the people of the Commonwealth—answered Romney’s call in resounding fashion, defeating a proposed constitutional amendment to replace same-sex marriage with civil unions by an overwhelming vote of 157 to 39. Through their elected representatives, the people have sent a clear message to Romney and his anti-gay marriage allies: the mainstream of the Commonwealth has come to accept same-sex marriage both as a fundamental right and as an integral component of the state’s social fabric.

The proposition’s lopsided defeat is due in large part to the state’s acclimation to the notion of same-sex marriage that has occurred since the 2003 court ruling. Since then, almost 6,000 same-sex couples have exchanged wedding vows—a number that represents 17 percent of total marriages within Massachusetts during that period. And despite impassioned warnings from the right, the social fabric of the Commonwealth has remained very much intact.

Even State Senator Brian Lees, one of the bill’s co-sponsors and also a Republican, eventually decided to vote against his own proposition in light of same-sex marriage’s new social role in the Commonwealth. “Today, gay marriage is the law of the land,” he said. “Life has not changed for citizens of the Commonwealth, with the exception of those who can now marry who could not before.” State Senator James Timilty concurred, saying that he decided to vote against the amendment when he “looked into the eyes of the children living with these couples.” He added, “I don’t feel...that same-sex marriage has hurt the Commonwealth in any way. In fact, I would say that in my view it has had a good effect for the children in these families.”

The growing support for same-sex marriage within the Legislature reflects a parallel trend among the state’s public. In 2003, barely 44 percent of Massachusetts residents supported same-sex marriage. Today, that number has risen to 56 percent, and the number of residents who actively oppose same-sex marriage has fallen to below 40 percent. Across the state, people are realizing that life after same-sex marriage has not differed at all from life before same-sex marriage. Far from being a radical innovation of left-wing activist judges, as Romney and his allies maintain, same-sex marriage has become an accepted and normal part of Massachusetts daily life.

Evidently, however, the evidence and the resounding decision of the Legislature—the very manifestation of the will of the people—are still not satisfactory to the opponents of same-sex marriage. The Massachusetts Family Institute plans to introduce a new amendment to the state’s Constitution, this time absolutely banning same-sex marriage, with no provision granted for civil unions—a measure that Romney supports. This time, anti-same sex marriage advocates won’t be satisfied unless the measure is put before a statewide referendum, which will inevitably generate a bitter battle and could even strip thousands of people of their recently-won rights. Amazingly, even after the Legislature’s momentous decision, Romney still professes that the people should be given a direct vote on the issue, as though their will has not already been made abundantly clear.

This position should be cause for serious concern both for Massachusetts residents and for all those who support equal marriage rights across the nation. As it stands, Massachusetts serves as a model for what all of America should seek to attain: a community in which same-sex marriage has become normalized. The referendum bid threatens to needlessly destabilize this harmonious social atmosphere. Never before has a referendum been proposed in Massachusetts that seeks to dissolve the rights of a minority group that had been previously guaranteed. In fact, the Massachusetts state constitution explicitly prohibits referenda concerning religious organizations for precisely this reason: the correct belief that the rights of minorities should not be fodder for public consumption and political hackery, but for well-reasoned debate in a controlled setting.

We do not seek to diminish the Massachusetts citizenry’s ability to decide the matter of marriage rights for itself. We say only that the citizenry has already made its will abundantly clear, and that the only responsible decision left for Romney and his allies is to drop the issue and let the Commonwealth continue to exist as it has. The recent decision of the Massachusetts Legislature was commendable; let’s hope that the Governor follows in this path of responsible statesmanship.