Reilly responds to criticizm on initiative petition

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My Decision on Initiative Petition
Date: Fri, 09 Sep 2005 19:30:36 -0400

September 9, 2005

Dear Friend,

I have received a great deal of comments over my recent decision to certify the petition banning same-sex marriage to appear on the 2008 ballot. Even though it was an unpopular decision to some, many have been supportive because it was simply the legally correct decision.

Although I disagree with the proposal to ban same-sex marriage, my job as Attorney General is to uphold the law. And that's what I did.

Fortunately, folks like Scot Lehigh of The Boston Globe appreciate this tough call.

I'd like you to take a look at his column from today's Globe, and, if you're interested in the specific reasons behind my decision, please read this open letter to supporters I posted on my campaign website today.

Thanks again for your support and friendship.

All the best,

Tom

Globe article - http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/09/09/reillys_dutiful_stand/

Reilly's dutiful stand
By Scot Lehigh | September 9, 2005

TOM REILLY has a reputation as a Joe Friday ''just the facts" lawman, and in certifying a proposed constitutional amendment that would ban gay marriage, the attorney general showed why. Noting that he personally disagreed with the measure, Reilly said the initiative was nevertheless legitimate under the state Constitution and thus entitled to go forward. That brought a scathing reaction from the gay community -- a reaction overheated enough to make one wince.

''Today Tom Reilly threw the entire gay community in front of the bus at the altar of his political aspirations," said Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus. ''We are stunned and horrified by the cowardly nature of this crassly political decision. Tom Reilly chose to ignore the law today. It's a disgrace, a shame. . . . "

Now, I like Isaacson and understand her frustration, but that is monumentally unfair. Reading the legal reasoning by Reilly's office and other briefs in the case, it's clear Reilly made a call on the legal merits, one he believes comports with his constitutional responsibilities to oversee the process. The legal issue boils down to what Article 48 of the state Constitution intends by prohibiting initiative petitions relating to the ''reversal of a judicial decision." Reilly's office concludes, persuasively, that the intent of that article is to prevent laws that a state court has set aside as unconstitutional from being submitted to voters for their approval, and not to prevent citizens from amending the Constitution in reaction to a court decision.

The Supreme Judicial Court, in a 2000 ballot question case, had the same view. As the majority wrote back then: ''By excluding from the initiative process those petitions that 'relate . . . to the reversal of . . . judicial decision(s),' the constitutional convention intended no more than to prevent a statute, declared unconstitutional by a state court, from being submitted to the people directly and thereby reenacted notwithstanding the court's decision. Citizens could, effectively, overrule a decision based on state constitutional grounds, but they could do so only by constitutional amendment."

more.....

Scot Lehigh's e-mail address is [e-mail].

open letter to supporters - http://www.tomreilly.org/index.php?option=com_content&task=view&id=51

Decision to Certify Marriage Petition Based Purely on the Law

Dear Friends,

As Attorney General, one of my most important duties is my role in the initiative petition process. Every two years, citizens propose binding laws and constitutional amendments for approval by the voters on the statewide ballot. My job is to review all petitions filed to determine whether they meet certain constitutional requirements -- in particular, whether a petition addresses any subjects that the Constitution excludes from the initiative process. If a petition meets the constitutional requirements, I certify it to move forward and prepare a summary of the question to appear on the actual petitions proponents will use to gather signatures and, later, on the ballot.

This is a purely legal process. My own personal beliefs on the issues raised by the proposed questions play no role in my decisions. Certification of a petition does not mean I endorse the policy it proposes. It simply means that the question meets the standards set forth in Article 48 of the Constitution. That's what the Constitution calls on me to do. And for seven years now as Attorney General, that's what I've done.

With each new set of petitions, controversy is inevitable. The certification process serves as a preview of sorts of how the questions will play out before the voters. Strong opinions are voiced from proponents and opponents alike. We make it a practice to reach out to interested parties to provide us any legal reasons why I, as Attorney General, should or should not certify the measure. But political arguments have no place in the process.

This year, there was an extraordinary amount of attention concerning the proposed constitutional amendment to define marriage. In the end, after weighing legal arguments from all sides -- and despite my personal opposition to any amendment banning gay marriage -- I certified the measure to move on toward the ballot. Here's why:

Opponents of the initiative raised two main objections. First, they argued that the petition is the same as a previous initiative petition filed in 2001 for a constitutional amendment banning same-sex marriage, and thus barred by the part of Article 48 that prohibits petitions "substantially the same as any measure which has been qualified for submission or submitted to the people at either of the two preceding biennial state elections." But the 2001 petition never went before the people, nor did it ever meet the legal requirements (approval by 25 percent of two successive Legislatures), to go on the ballot. Therefore, that argument is not sufficient to bar certification.

Amendment opponents also argued the proposal reverses the Supreme Judicial Court's Goodridge decision legalizing same-sex marriage and, therefore, is barred by Article 48's provision excluding petitions relating to the "reversal of a judicial decision." But the SJC has clearly ruled that the phrase "reversal of a judicial decision" was used in a very special and limited sense, to refer to proposals relating to the "recall of judicial decisions." That notion of "recall of judicial decisions," first proposed in 1912 by Theodore Roosevelt but widely rejected by 1918, would have allowed voters to directly reject a court's ruling that a state law was unconstitutional and to put that law back into effect. That is very different from amending the Constitution. Amending the Constitution does not require the people to say that a court's decision was wrong and should be ignored. Instead, it changes the rules to be applied by the court in future cases.

During the Constitutional Convention of 1917-18, the drafters of Article 48 clearly meant to prohibit the "recall of judicial decisions." But the Convention debates from that time show that they just as clearly meant to allow initiative petitions to amend the Constitution in response to a court decision finding a law unconstitutional. John W. Cummings, the chairman of the 1917-18 Convention's Committee on initiatives who actually proposed the language on the "recall of judicial decisions," himself made it clear that he favored giving the people the power to use the initiative process to change the Constitution or law underlying a court decision. The SJC has agreed with this reading of the debates and the Constitution in similar cases my office has defended as recently as 2000 and 2002.

My attorneys' thorough review of constitutional law and this legislative history provide an unquestionable legal basis to certify this question for the ballot. In this instance, the law is very clear. The right of the people to amend the Constitution going forward is preserved. In the end, it wasn't a close call. To do anything else would have been a violation of my responsibilities as Attorney General, my oath of office, and the Constitution.

Since the decision, there's been a flurry of opinions on either side of the issue, as expected. But many opinion leaders, editorial writers and columnists have backed my decision after taking an independent look at the issues themselves. None, I think, highlighted the clear-cut nature of this decision better than Scot Lehigh of The Boston Globe. I urge you to read his column from today's Globe, linked HERE, and pass it on to your friends and family.

There are going to be plenty of issues where you may agree or disagree with me -- but I can guarantee you one thing, you'll always know where I stand. Now, hopefully this is one controversial decision where you now see the legal reasoning behind my decision.

Thanks for reading and thanks for your continued support.

Your Friend,

Tom Reilly

1. When I read "dear friends", I think Firesign Theatre.
2. With freinds like that, who needs enemies?