May 12, 2006

Return to slavery appears in Massachusetts marriage
ban case

by Lisa Keen

Boston--Massachusetts Attorney General Tom Reilly probably thought he was avoiding controversy last year by approving a ballot initiative that would ask voters to ban same-sex marriage. But he was wrong.

During oral arguments before the state?s highest court on May 4, the attorney general?s right-hand man had to acknowledge that approval of the measure could open the door for ballot measures to reinstate slavery and to designate that all property of a married couple belongs to the husband.

No one in Massachusetts is suggesting that slavery or male preference be made legal, but the acknowledgement underscored a dark side to the ballot initiative campaign currently underway to ban same-sex marriage.

Assistant Attorney General Peter Sacks, who represented Reilly--a candidate for governor--in court last week, conceded that it is a troubling reality that, legally, the majority of voters have the right to approve slavery or preferential rights for men.

But, he added, ?People should be the masters of their own constitution.?

Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders, told the court that a legal nuance precludes the attorney general from approving the initiative for the ballot.

The initiative, promoted by a coalition of right-wing groups, seeks to amend the state constitution to limit the definition of marriage to ?one man and one woman.? While it would not affect the thousands of same-sex couples who have already received marriage licenses in the state, it would--if passed in November 2008?cut off any future licenses for gay and lesbian couples.

GLAD argued that the state constitution says an initiative may not be approved for the ballot if it is seeking to reverse a judicial decision.

The proposed Protection of Marriage initiative would undo the effect of the state supreme court?s November 2003 decision that the state constitution requires same-sex couples to have the same access to marriage licenses as heterosexual couples.

The argument before the state high court came down to whether the initiative seeks to ?reverse? or ?overturn? the 2003 ruling--a debate which justices appeared to be having among themselves.

However, that debate took on a decidedly political tone when Chief Justice Margaret Marshall--author of the 2003 decision--said that the attorney general?s position would seem to suggest that, through an initiative, people could give husbands the rights to all property in the event of a divorce, a point that Sacks conceded.

Then Marshall asked Sacks if approving the same-sex marriage initiative meant the attorney general would also approve an initiative to reinstate slavery.

?Well, obviously, the subject matter is very troubling,? said Sacks, hesitating. But eventually he acknowledged that, yes, such an initiative would be permissible.

Gay activists in Massachusetts accused attorney general Reilly of playing politics with the initiative when he approved it last September for the 2008 ballot. Noting that he is running for governor, Arline Isaacson of the Massachusetts Gay and Lesbian Political Caucus criticized Reilly for the ?crassly political decision.?

Reilly, who says he is ?personally opposed? to the ban on same-sex marriages, said his decision was a ?purely legal? one.

The court is expected to rule by July. State lawmakers were to hold the first of two constitutional conventions to consider the amendment this week, but have delayed it until then.

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