The Nobody's Happy Amendment

The Massachuetts Constitutional Convention gave final approval--for the year--to an amendment which would ban same-sex marriage, but legalize "equal" civil unions.  The amendment was pushed forward by an 105-92 vote.  This means the amendment will be brought up again at a constitutional convention in 2005-2006.  If it passes again it will go to the voters of Massachusetts in the fall of 2006.  Advocates of same-sex marriage are not happy about this attempt to reduce gays and lesbians to a "separate but equal" status.  Opponents of civil unions are not happy that a vote to ban SSM will also be a vote to constitutionally establish civil unions.  Supporters of the amendment say they just wanted to put something on the ballot.  There's no telling what the amendment's prospects are next year.  In the meantime all 200 legislative seats come up for election and same-sex couples will be marrying.  I would think that advocates of same-sex marriage will continue to fight hard against the proposed amendment at next year's convention.  Some of the most vocal opponents of same-sex marriage, though, are also opposed to civil unions.  Will they continue to spend their resources to support the amendment?  Finally, Governor Romney announced almost immediately after the vote was taken that he will aks the SJC to stay their ruling for up to an additional two and half years.  I don't think they are likely to agree to his request.

UPDATE:  The SJC may not even receive Gov. Romney's request.  Attorney General Reilly, who argued the case against same-sex marriage before the court, has said he will not go back to the SJC to seek a stay.   

Comments

[Charles2]

Have there been any articles written covering what will happen to gays who marry in the interim? What kind of status would adoption of an amendment leave these couples in?

This has been bothering me and I haven't seen anything in the national press (I'm in NY) that covers this aspect of the debate. It seems there's such a long time between now and '06 for things to get very complicated.

[Galois]

I can't point you to any article about the issue. I do know that the legislators at one point considered an amendment almost identical to the one moved forward except that it had a clause about retroactively turning same-sex marriages into civil unions should it pass. Many legislators objected to this language and so it was removed. That would lead me to believe that those couples married in the interim would still have their marriages recognized.

On the other hand the final text of the proposed amendment does read "only the union of one man and one woman shall be valid or recognized as a marriage in the commonwealth". That might indicate that Massachusetts would no longer recognize those unions as "marriages". I doubt, though, that a Massachusetts court would even reach this question. Since the union could still be recognized as a "civil union" with the same consequences (at least within the commonwealth), a Massachusetts court has no need to decide the matter. In general, I believe Massachusetts would also continue to recognize foreign same-sex marriages, it would just recognize them as "civil unions"--again no legal difference within Massachusetts. The only possible question I could see arising is does the court have the power to grant a "divorce" or a "dissolution" to these marriages. I am guessing the court could still grant "divorces", in order to ensure the marriage is legally ended.

The other question that remains is how would other jurisdictions treat the marriages after 2006--should the amendment actually pass which is not at all clear. I'm guessing the amendment will make no difference in the way these marriages are treated. The couples are still legally married. Only death, divorce, or an annulment could end their marriage and the amendment does none of this.