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His tactics enraged critics — and protected gay and lesbian couples
BY DAN KENNEDY
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TOM BIRMINGHAM’S momentous decision to kill an amendment to the state constitution that would have banned same-sex marriage followed what he calls an "epiphany." It was June 19, 2002. The then-president of the Massachusetts Senate had just recessed a constitutional convention — that is, a joint session of the Senate and the House. And there was apoplexy on high. "There was a thunderclap of hatred that came down from the gallery," he recalls. "I looked up and saw all these angry, contorted faces." It was then, he says, that he resolved to stop the amendment. On July 17, the constitutional convention was once again in session. The amendment — up for consideration because some 130,000 voters had signed an initiative petition — needed the votes of only 25 percent of legislators for supporters to keep it alive until the next legislative session. If it got through the legislature again, it would then go on the ballot, where a simple majority would be all that was required for passage. No sooner had the proceedings begun, though, than Birmingham recognized a motion to adjourn. The motion passed, 137-53 — a substantial margin, but less than what would have been needed to kill the amendment on its own merits. It didn’t matter: the convention was over. Birmingham was excoriated, with critics on both sides of the issue charging that he’d demonstrated contempt for the democratic process. But Birmingham resists the notion that what he did was undemocratic. "A motion to adjourn is always in order," he said this past Monday in an interview in an 11th-floor conference room at Palmer & Dodge, the law firm where he now works. Still, Birmingham doesn’t deny that his parliamentary maneuver made it far easier to kill what he calls "a wrong-headed, wrong-hearted constitutional amendment." The homophobes certainly understood. "The day we did that vote, there was something approaching hysteria in the corridors," he says. Critics also accused Birmingham of acting to jump-start his campaign for the Democratic nomination for governor. But it’s hard to see where there was much in it for him. Another Democratic candidate, Robert Reich, had already come out in favor of full marital rights for same-sex couples. Birmingham opposed — and still opposes —marriage rights for gay and lesbian couples, favoring civil unions instead. Gay activists may have been grateful to Birmingham, but, for the most part, he was never their candidate. Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, says past experience shows that "misinformation and scare tactics" might well have resulted in the anti-marriage amendment’s passing if it had ever made it to the ballot. Noting that the amendment would have banned not just marriage, but also civil unions and even domestic partnerships, she calls Birmingham’s actions "nothing short of downright heroic." Moreover, Isaacson says, there is something much larger at stake. "This country is founded on the principle that the tyranny of the majority should never be able to take away the rights of a minority, including an unpopular minority," Isaacson says. "It’s fundamentally un-American." On November 12, the legislature is scheduled to meet as a constitutional convention again — and, as in 2002, an anti-marriage amendment is on the agenda. This time, it was proposed by a legislator — Representative Philip Travis — and thus needs a majority rather than the mere 25 percent required by the initiative-petition process. Might Birmingham’s successor as Senate president, Robert Travaglini, who recently announced that he favors civil unions, act to kill the amendment? His spokeswoman, Ann Dufresne, says such "speculation" would be premature, given that the Supreme Judicial Court’s ruling in the Goodridge case, in which seven same-sex couples are seeking the right to marry, may still come down before November 12. Birmingham himself declined an opportunity to offer advice to his successor. But he has no regrets about his own actions, ranking it along with education reform as one of his best moments in the Senate. "You can count on two hands the days as a legislator that you’re really proud," he says. "This was mean and hateful, and I was proud to defeat it."
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