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Malcolm Troubled by Actions of Massachusetts Legislators

Bay State legislators had a "clear, constitutional duty" to vote on an initiative petition to place a proposal on the 2008 ballot to define marriage as between one man and one woman says Professor Joyce Lee Malcolm in a letter to the editor of the Washington Times. Malcolm's letter was sent in response to Massachusetts legislators' adjournment of their session this month rather than holding a vote on the petition. "Whatever one's view of same-sex marriange, the Legislature's violation of the rule of law is even more troubling," stated Malcolm.

'The triumph of arrogance over democracy,'  Washington Times, November 17, 2006. By Joyce Lee Malcolm.

Anyone wondering why Massachusetts was the first and, until the New Jersey court ruling last month, only state to approve same-sex marriage will find the answer in the editorial 'Marriage fiat in Massachusetts' (Saturday). Bay State legislators adjourned their session this month rather than vote on the initiative petition signed by 170,000 citizens to place a proposal on the 2008 ballot defining marriage as between one man and one woman. Legislators had a clear, constitutional duty to vote on the petition.

"As the editorial notes, this same tactic to prevent voters from deciding the issue had been used before. In 2002 a similar petition was placed before the joint session of the Massachusetts Legislature that approves all ballot questions. Then-Senate President Thomas Birmingham placed the petition at the end of the agenda and deftly adjourned the session before it could be voted on. A year later in a 4 to 3 decision, the Massachusetts Supreme Judicial Court ruled that the ban on same-sex marriage violated the Massachusetts Constitution and gave the Legislature 180 days to change the law.

"When the Legislature asked if civil unions would fulfill the requirement, by the same 4 to 3 majority, with judges shouting at each other, they were told 'no.' The judges set the anniversary of Brown v. Board of Education as the date for the new, same-sex marriages to be recognized. Those four judges and the leadership in the state Legislature deprived the people of Massachusetts of the opportunity to decide for themselves this fundamental question. Whatever one's view of same-sex marriage, the Legislature's violation of the rule of law is even more troubling. This was, as Gov. Mitt Romney pointed out, nothing less than 'the triumph of arrogance over democracy.'"