LAST WEEK, Attorney General Tom Reilly said there was "considerable ambiguity" in last week’s ruling by the Massachusetts Supreme Judicial Court that same-sex couples have a constitutional right to wed in the Commonwealth.
Considerable ambiguity? Is Reilly serious? Chief Justice Margaret Marshall’s opinion couldn’t have been more clear (see "Wiggle Room? What Wiggle Room?", page 7). "Marriage is a vital social institution," she wrote. "The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits." She continued: "[B]arring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." Marshall’s focus was clearly on marriage.
As an attorney, Reilly surely knows that. Still, he called on the legislature to pass a civil-union bill, claiming that such a gays-only marriage-lite law would satisfy the court’s ruling that lesbian and gay couples be allowed to marry in six months’ time.
Reilly wasn’t the only leading politician in the Commonwealth to call for a civil-union bill. Governor Mitt Romney did the same (along with pledging to pass a constitutional amendment barring the marriages of same-sex couples). But Romney’s response to the ruling was predictable. And because Romney’s response was predictable, it’s not as threatening to the work currently under way by civil-rights advocates to make sure the legislature does not pass either an anti-gay-marriage constitutional amendment or a civil-union bill.
Reilly’s public comments, however, carry much more weight for two reasons. The first is that he’s the chief enforcer of the Commonwealth’s laws. Eric Fehrnstrom, Romney’s director of communications, immediately seized on Reilly’s comments for just that reason: "Attorney General Reilly is litigation counsel for the Commonwealth of Massachusetts," Fehrnstrom told the Boston Globe. "As such his opinion carries significant weight, period."
The second reason Reilly’s comments wield influence is more complicated — and insidious: Reilly has a reputation as a crusader for the dispossessed. As someone who’s consistently advocated for the underdog — whether it’s consumers ripped off by Microsoft or victims of clergy sex abuse (politically expedient positions, it should be noted) — Reilly is widely viewed as a politician who cares. As such, it’s hard to question his motives when he calls for civil unions for gay couples instead of civil marriage. But Reilly’s motives here are far from pure. Consider the role he’s played to date in the debate over whether same-sex couples should be allowed to wed (see "Populist Pursuits," Editorial, April 18, 2002).
In 2001, his office was required to rule on whether a ballot question that sought to amend the state Constitution to ban same-sex marriages fulfilled all the technical requirements citizen initiatives must meet before being placed on the ballot. Despite convincing evidence that Ballot Access Company, the firm hired to gather signatures for the initiative, engaged in deceptive tactics to trick people into signing the petition, Reilly let the question onto the ballot. The tactics in question involved asking people to sign a petition barring the slaughter of horses, which Ballot Access Company had also been hired to gather signatures for, when in fact the petition people then signed was the one calling for the anti-gay-marriage amendment.
Lowell Finley, an attorney for Save Our Horses, the group sponsoring the measure that would have banned the slaughter of horses, collected an affidavit from one of Ballot Access Company’s signature gatherers. In the affidavit, Jason Hampton, who worked for the company as a day laborer, clearly describes the bait-and-switch scheme. According to Hampton, a Ballot Access Company employee instructed signature gatherers to "talk about the horse-slaughter issue to ‘sell’ people on signing Petition A [the horse-slaughter measure]." The Ballot Access supervisor "gave us pre-prepared clipboards that had a picture of a horse colored like the American flag on top, a copy of Petition A underneath that, and then a mix of Petition A and Petition E [the anti-gay-marriage initiative] signature pages on the bottom," said Hampton, who worked at the North Shore Mall in Peabody collecting signatures. "He said we should show people [the horse petition], but if they weren’t paying attention to have them sign on one of the petitions underneath, which were [the anti-gay-marriage petition]." (Hampton also noted in his affidavit that he refused to follow these instructions as it "just seemed illegal and it just didn’t seem right to try to trick people.")
The affidavit was filed in Suffolk Superior Court in a lawsuit brought by Save Our Horses against Secretary of State William Galvin. It was also presented by Finley to attorneys in Reilly’s office. "They were bending over backwards not to do anything about this," Finley tells the Phoenix. "When it comes to the defense of people’s franchise and the power to change the laws through the ballot process, the Attorney General’s Office missed a real opportunity in the petition-fraud situation, and I didn’t see a legal basis for that decision."
Reilly eventually issued a public advisory urging people to carefully read any petitions they sign (see "DOMA Follies," This Just In, January 10, 2002). It was a weak response from the man who creatively inserted his office into the sale of the Boston Red Sox in order to increase the cash going to the Yawkey Trust, a charitable foundation, which benefited from the sale.
But nothing betrays Reilly’s hostility toward gay and lesbian couples more than his disingenuous remarks last week that "social policy change" is best left to the legislature. Really? If that’s the case, then why do we still have no system in place to protect gay- and lesbian-headed families when such measures have been consistently filed on Beacon Hill over the last decade? And what, then, does Reilly think of other court-ordered remedies to discrimination, including 1783’s Commonwealth v. Jennison, which outlawed slavery in Massachusetts; 1954’s Brown v. Board of Education, which ended school segregation; 1967’s Loving v. Virginia, which struck down laws barring interracial marriage; and 2003’s Lawrence v. Texas, which struck down laws banning consensual sex between two people of the same gender?
Reilly must be held accountable for his shameful and bigoted response to the Goodridge ruling — particularly if he decides to run for governor in 2006. You can register your displeasure by calling Reilly’s office at (617) 727-2200; writing to One Ashburton Place, Boston, MA 02108; or e-mailing firstname.lastname@example.org.
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