E-Mail This Article to a Friend Don’t pass an amendment Memo to the state legislature: You can’t compromise on civil rights

NEXT WEEK, THE legislature will reconvene the constitutional convention to debate an amendment to the state constitution that would ban same-sex couples from marrying. As Kristen Lombardi reports in this week’s issue (see "Gay Marriage: What To Expect Next Week"), it’s impossible to predict what will happen. But we know what should happen: legislators must reject any attempt to enshrine discrimination in the Commonwealth’s founding document.

As of this writing, momentum favors the push to pass an amendment that would prohibit lesbian and gay couples from marrying but give them the same benefits through civil unions. It satisfies most legislators’ desire to submit something — anything — to the voters. It has the appearance of being fair. Democratic presidential front-runner John Kerry endorsed the strategy last week. And President George W. Bush seemed to do the same when he called for an amendment to the US Constitution that would define marriage as a heterosexual union but still allow states to offer legal protections to gay couples.

But as the Supreme Judicial Court noted in its February 3 advisory opinion, which made clear that civil unions would not meet the standard set by its November 18 ruling that barring gay couples from marrying was unconstitutional: "The history of our nation has demonstrated that separate is seldom, if ever, equal."

We trust the sincerity of legislative leaders like Senate president Robert Travaglini, who is pushing the anti-gay-marriage/pro-civil-union compromise amendment. Travaglini seems genuinely motivated to broker a compromise that would satisfy those who believe marriage should be reserved for heterosexuals, those who believe gay couples deserve legal recognition and protection of their relationships, and those who believe voters should have a direct say in the matter. But when it comes to civil rights, there can be no compromise.

On a more practical note, Travaglini is working hard for something that’s likely to be seen as hopelessly dated a decade from now. The public clearly backs benefits for lesbian and gay people. This was not the case five years ago, much less 10. And just one year ago it would have been unthinkable that statewide gay-rights groups would be lobbying the legislature to oppose civil unions. Just 12 months ago, such a provision would have been seen as a major advance for the thousands of same-sex couples residing in the Commonwealth. Where is the public likely to be 10 years from now? Are we really going to go through this exercise of amending our constitutional definition of marriage every decade?

Public opinion is so fluid and fast-moving on issues like this that it’s foolish to rely on polls to craft social policy through constitutional amendment. When the US Supreme Court ruled in 1967 that bans on interracial marriages were unconstitutional, polls at the time found that 70 percent of Americans opposed such unions. Each year after that historic ruling, the percentage of Americans who opposed interracial marriage steadily dropped. Beyond the sheer imprudence of trying to compose civil-rights laws based on opinion polls, of course, it’s also just plain wrong. Our form of democracy was specifically set up to avoid scenarios under which the fundamental rights of a minority are decided by the majority.

In this instance, the state would be best served by simply letting the SJC’s decision stand without taking the draconian step of altering the state constitution: civil rights are best decided by judges who don’t have to pander to the public come election time. The examples of Bush and Kerry show us why. Few people who know Kerry personally — and know of his own history — think that he sincerely believes gay people should not be allowed to marry. Yet it’s understood — and even overlooked by people who should know better — that Kerry must be politically pragmatic as opposed to fully principled and embrace civil unions because that puts him in step with the majority of Americans. When Kerry stated last week that he favored the move to amend the Massachusetts Constitution in order to ban same-sex couples from marrying, he risked nothing. Liberals and progressives who disagree with Kerry will have no choice come November but to vote for Kerry — or suffer the grave consequences of Bush’s re-election. Which is no choice at all. That Kerry didn’t think through a more imaginative response — one that more accurately represents what many believe is his actual view on the issue — such as saying that he opposes gay marriage but respects the right of the SJC to interpret the state constitution (while pointing out that six of the seven justices were appointed by Republican governors) merely indicates his need to continue to grow.

Meanwhile, when Bush outrageously called on Congress to "promptly pass" a federal constitutional amendment barring gays from marrying, few people actually believed that he was acting on principle. This move was seen as politics, pure and simple. That Bush didn’t call for such a move immediately after the SJC issued its November ruling, and that he did so only after months of lobbying from the radical right, reinforced these views. Indeed, Bush’s actions called to mind President Ronald Reagan’s handling of radical anti-abortion protesters. At the frequent "March for Life" rallies held in Washington, DC, during the 1980s, Reagan would appease the activists by addressing them by phone — even though they were just down the street. Bush was simply trying to appeal to the most conservative elements of his base, none of whom he can afford to alienate without possibly jeopardizing his re-election chances come November (see "Ramping Up the Culture Wars," Editorial, February 20, available online at www.bostonphoenix.com).

That the two most powerful politicians in the country — the president and the man best poised to replace him — can so easily disregard fundamental matters of civil rights in the hopes of appealing to voters shows that politicians in general aren’t positioned to deal with complex constitutional questions. Because the structure of both the Massachusetts and federal judiciaries shields judges from the winds of political and public whim — by not subjecting them to elections that necessarily force them to think twice about making unpopular decisions (though in Massachusetts, the threat of underfunding the courts is a real weapon frequently deployed by the legislature) — they are in a much better position to make these judgments.

Next week, when the legislature reconvenes to address the issue of same-sex marriage, it’s something every member should bear in mind.

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