A Vote in Massachusetts

Two actions yesterday in the Massachusetts state legislature increase the likelihood that voters in the Bay State will have the chance, in 2008, to vote on an amendment to the state constitution banning gay marriage. Whatever one's view of gay marriage, it is something to behold that such a vote would take place fully five years, to the month, after the state's Supreme Judicial Court ruled that gays have a right to marry in Massachusetts and more than four years after local officials in Massachusetts started granting marriage licenses to same-sex couples. Senator Kerry's position has been that he supports amending the constitution of Massachusetts to ban gay marriage but allow civil unions. "I believe marriage is between a man and a woman," Senator Kerry said in one of the 2004 presidential debates. When even a Democratic left-wing senator from Massachusetts doesn't side with the court's ruling, one gets the sense that proponents of gay marriage have yet to fully convince the public of the righteousness of their cause and that the court is out ahead of public sentiment on the issue.

A referendum would give both proponents and opponents of gay marriage a chance to take their arguments to the people rather than to the unelected judges. Polls show Massachusetts voters split about evenly on the issue, though polls indicate broader support for civil unions. Voters just elected, in Deval Patrick, a governor who supports gay marriage, after previously electing, in Mitt Romney, a governor who opposes it. A high-profile ballot initiative on gay marriage in 2008 could also force more presidential candidates to take public positions on the issue. There are some issues on which a court must take an unpopular position to protect the rights of a minority, but history — such as that of the abortion rights the Supreme Court found in Roe v. Wade — shows that such decisions are often recipes for political acrimony. New York's highest court decided last year to leave the matter of marriage to the legislature. With Governor Spitzer and Mayor Bloomberg both avowed supporters of gay marriage, the legislature may act. Whatever the outcome of a referendum in Massachusetts, it represents a better way to sort out the controversy than judicial activism.