Everyone knows about the 2004 decision of the Massachusetts supreme court legalizing gay marriage, and everyone knows that laws banning gay marriage have been passed in many states and are in the pipeline in others, but out-of-staters may not be aware of the current state of such efforts in Massachusetts. It all hinges on a question of mathematical logic.
First of all, a bit of background. An initiative petition sponsored by opponents of gay marriage was signed by enough voters to have it sent to the state legislature, commonly known as The Great and General Court of the Commonwealth of Massachusetts. The legal process in Massachusetts is that the measure will be placed on the ballot if approved by at least 25% of the legislators meeting jointly as a constitutional convention. The legislature has twice refused to vote on the measure, presumably because it is opposed by more than 50% of the members but fewer than 75%. So our esteemed governor, Mitt Romney, as part of his efforts to shore up his new-found conservative credentials, brought a case before the Supreme Judicial Court (SJC) to try to force the Great and General Court to vote. (Bear with me now about the names: the Supreme Judicial Court is truly a court; the Great and General Court is the legislature, not a court.) The SJC rightly refused to do so, unanimously declaring that it would be a violation of the separation of powers, but I am mystified by their claim that the legislature does have an obligation to vote. As I say, it all hinges on a question of mathematical logic. IANAL, of course, but the issue seems clear to me. In an article in the Boston Globe, Romney quotes a sentence from the state constitution:
Romney — weighing a run for GOP nomination for president — even sent a copy of the state constitution to all 109 lawmakers who voted to recess the special legislative session.
“The constitution quite plainly states that when a qualified petition is placed before them, the Legislature ‘shall vote.’ It does not say ‘may vote,’ or vote if procedures permit a vote, or vote if there are enough of the members in the chamber. It says, ‘shall vote.’” Romney said.
Not exactly, according to several legal experts, who say that reading of the constitution is flawed. They say that, for better or worse, lawmakers have acted within the bounds of the constitution, which stops short of ordering they vote up and down on the measure.
“That’s a nicely symbolic way of making his point, but it’s a little empty at the end of the day,” said David Yas, publisher of Massachusetts Lawyers Weekly. “The ballot initiative process is part our Democratic process, but so are the legislative tricks and treats.”
The tussle hinges on the interpretation of a single sentence in the constitution: “Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays.”
Supporters of the constitutional amendment, like Romney, say the sentence is a clear mandate that lawmakers must vote directly on the measure itself.
But that’s clearly wrong! You can’t just skip over the word “only”! The Globe article goes on to quote Lawrence Friedman, a constitutional law professor at the New England School of Law, who observed that the language “dictates the form of a vote, but does not mandate a vote.” Here’s an example that shows why the word “only” is so crucial:
Suppose I put the following notice at the top of a two-part test:
Calculators shall be used only on Part A.
(Yes, it’s a bit stuffy — lawyers’ language, not teachers’ language — but we’re really talking about laws here, not math tests.) If I had omitted the word “only,” it would be an injunction to use calculators on Part A, apparently requiring their use (as in Romney’s reading of the state constitution). It would be silent about Part B, which might or might not allow calculators. But the word “only” changes everything, reversing the logic to create the converse of the meaning; now it allows calculators on Part A and implicitly prohibits them on Part B. Similarly, the state constitution says “only by call of the yeas and nays,” meaning that they’re not allowed to vote by any other process, not that they must vote.