Dispatches from the Creation Wars

The Massachusetts high court, as expected, has rejected a request that they order the state legislature to hold a vote on a proposed gay marriage initiative.

“Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote by yeas and nays on the merits of the initiative amendment (or by other procedural vote of similar consequence), ultimately will have to answer to the people who elected them,” the court said in its 11-page ruling.

My immediate reaction is that I still think this is the wrong decision, for the reasons I outlined the other day. If it’s true, as the court admits in the statement above, that the legislators have a “lawful obligation” to hold such a vote (and that is clearly true from the text of the Mass. constitution), then it is entirely proper for the court to order compliance. The courts issue such orders, called writs of mandamus routinely around the country.

And the court clearly does interpret the state constitution the way I do, as obligating the legislature to hold a vote on the matter by the end of the session (see ruling here):

The members of the joint session have a constitutional duty to vote, by the yeas and nays, on the merits of all pending initiative amendments before recessing on January 2, 2007. With respect to legislative action on proposals for constitutional amendments introduced to the General Court by initiative petition, the language of art. 48 is not ambiguous. Section 2 of art. 48, The Initiative, IV, provides:

“If a proposal for a specific amendment to the constitution is introduced into the general court by initiative petition . . . such proposal shall, not later than the second Wednesday in May, be laid before a joint session of the two houses, at which the president of the senate shall preside; and if the two houses fail to agree upon a time for holding any joint session hereby required, or fail to continue the same from time to time until final action has been taken upon all amendments pending, the governor shall call such joint session or continuance thereof.”

However, the Court maintains that it has no authority to issue such a ruling for several reasons. First, because they lack the authority to make declaratory judgments:

Beyond resorting to aspirational language that relies on the presumptive good faith of elected representatives, there is no presently articulated judicial remedy for the Legislature’s indifference to, or defiance of, its constitutional duties. We have no statutory authority to issue a declaratory judgment concerning the constitutionality of legislative action, or inaction, in this matter. G. L. c. 231A, ยง 2 (establishing express exemption from declaratory relief for “the governor and council [and] the legislative and judicial departments”). See Pawlick v. Birmingham, 438 Mass. 1010 (2002) (declaratory relief unavailable with respect to Senate President’s official duties as presiding officer of art. 48 joint session).

They further declare that writs of mandamus cannot be issued against the legislature for failing to implement the constitution, but only against lower courts and administrative officials for their failure to implement legislative acts:

The remedy of mandamus (once sought by the plaintiffs but since abandoned, see note 4, supra) does not lie against the Legislature. See Milton v. Commonwealth, 416 Mass. 471, 475 (1993); LIMITS v. President of the Senate, supra at 35; Lamson v. Secretary of the Commonwealth, 341 Mass. 264, 270-271 (1960), and cases cited.

I haven’t read those state court precedents, nor do I have easy access to them, but this seems odd to me. Yes, writs of mandamus are traditionally issued against lower the executive, particularly against executive agencies or officials, for failing to do the duty that the law requires. But what is the actual difference between issuing such a writ against the legislature and any other judicial ruling on a constitutional question? In either case, the court is telling the legislature that they have violated the constitution and they must cease such violations. I just don’t see any practical distinction between the two exercises of judicial authority; they are substantively identical.

The court further notes that Article 48 does not provide specifically for a judicial remedy:

Our holding in the LIMITS decision is clear: “The only remedy set forth in art. 48 for the failure of a joint session to act is a direction to the Governor to call a joint session or a continuance of a joint session if the joint session fails in its duty. Article 48 provides no judicial remedy.”

But they also note that the legislature has deliberately acted to negate that remedy:

We recognize, as a practical matter, that the Governor’s recall power is unavailable here because the joint session, by recessing until the last afternoon of its existence, has effectively neutralized the Governor’s constitutional power. Nonetheless, the plaintiffs have not set forth any legally tenable judicial enforcement role in ensuring that the members of the joint session comply with their constitutional duties under art. 48, and, as has been pointed out, case law provides no enforcement mechanisms.

It seems to me that the role of the courts is precisely to force the other branches of government to carry out their constitutional duties. When they overturn a legislative act because that act violates the constitution, they are doing the same thing being requested here; they are declaring the other branches of government to be in breach of their constitutional obligations and ordering them to cease doing so in regard to the particular action in question. I just don’t see any principled distinction between them.

Technically, it’s possible that the Court has an out in a footnote, referred to above, where they say that the plaintiffs abandoned their request for a writ of mandamus:

In their complaint, the plaintiffs also requested an order in the nature of mandamus directed to the Senate President to reconvene the joint session, on or before January 2, 2007, and to present the terms of the proposed initiative amendment to the joint session for a vote on its merits as required by art. 48. Failing such a vote, the plaintiffs in their complaint request that this court enter an order directing the Secretary of the Commonwealth to place the initiative amendment on the ballot at the 2008 Statewide election for approval or rejection by the voters. It became apparent, during oral argument, that the plaintiffs have abandoned these requests for relief, which could not be granted in any event.

I don’t have the transcript of oral argument, so I have no way of judging this. But it seems to me that if the papers filed in court make an argument for such a writ to be issued, that is what is binding on the court to decide. And it is their conclusion that such relief could not be granted that is, it seems to me, an incorrect conclusion. Their conclusion sounds as though it is consistent with prior Massachusetts court rulings; I just don’t think it offers a coherent distinction between this case, where they claim no authority, and other cases, where they assert such authority.


  1. #1 Lettuce
    December 28, 2006

    Difficult one for me, thinking the law ought to be followed, but also thinking that any law that calls for others to have a vote on the fundamental rights of others is a significantly wrongheaded law.

    It seems likely to me that if the state of Massachusetts denied atheists the right to marry few of us would be arguing that putting it up to a vote was a reasonable solution.

    Or that if while previously denying atheists the right to marry they had rectified the situation that then putting it up to a vote to determine if the fundamental discrimination should continue would be an acceptable outcome.

  2. #2 Ed Brayton
    December 28, 2006


    I can understand the ambivalence; obviously, I am a staunch advocate of gay marriage and don’t want to see it go away in Massachusetts. But that doesn’t change what the law says, of course. I don’t like the way the Mass. constitution handles such things at all; it should be far more difficult to put any proposition on the ballot, whether it limits liberty or not. A 25% vote of the legislature and 170,000 signatures? That’s quite small. But still, the law is the law and I don’t favor courts ignoring it even when the outcome is disturbing.

  3. #3 DuWayne
    December 28, 2006

    Lettuce –

    While I dissagree with the notion of putting this to a vote, the MA constitution is clear that they have to. While I have said in the past that I want to see gay marriage, regardless of how it is achieved, I must ammend that. I want to see gay marriage, regardless of how it is achieved – within the rule of law. Without the rule of law, human rights are inherently arbitrary – universal human rights become impossible.

  4. #4 Lettuce
    December 28, 2006

    The rule of law is an interesting concept.

    Denying people fundamental rights, based on the rule of law, strikes me as a fundamental argument against the reification of the rule of law as an end to itself.

    I say that with great respect for the rue of law.

  5. #5 Lettuce
    December 28, 2006

    Rue of law, heh.

    Wish I was witty enough to have meant that. Just a typo, though. Sorry.

  6. #6 AnneS
    December 28, 2006

    I have to disagree with Ed. Courts do not issue writs of mandamus to a legislature ordering them to conduct a certain vote because of basic seperation of power issues. A writ of mandamus is an order for a person to act affirmatively in order to carry out the demands of the law. The entire purpose of executive officials is to execute the laws passed by the legislature or as interpreted by the courts, so issuing a writ of mandamus to them does not intrude on any of their rights and privileges.

    Ordering a legislature to conduct a certain vote or pass a certain law is very different. The legislature is charged with making the law and courts will almost never interfere with the process lawmakers follow to make laws. Courts may find laws they’ve passed unconstitutional or construe laws in a way that makes them constitutional despite the legislature’s’ unconstutional intent, but courts almost never directly interfere with the manner in which the legislature chooses to act or not act.

    In this case, the COurt would have to involve itself in the inner workings of the legislature’s procedures and committee structure. It’s not simply a matter of ordering a vote. It’s a matter of ordering the legislature to bypass its normal, internal legislative procedures to hold multiple votes on a specific issue. There are almost no courts that will do this.

    I admit, it is doubtful that there is a true meaningful distinction between ordering legislatures to hold a vote that is constitutionally mandated and ordering an executive not to build a road that hasn’t been properly vetted. But American courts either see a distinction or, more likely and more reasonably, just don’t want to go down the road of involving themselves in the legislature’s law-making functions.

    (BTW, I’ve hedged using the words “almost never” because I can’t categorically say “never”. I am not actually aware of any cases where courts have ordered the legislature to hold votes, etc.)

  7. #7 kehrsam
    December 28, 2006

    The Court does not have to mess with the vagaries of the legislative process. All that is necessary under Art 48 is that the lege convene a joint session and take a record vote of the outcome. How the lege gets to that point is of no interest.

    That being said, is mandamus a reasonable option for a legislature that fails to perform its duties? Following the recent election, Congress intentionally failed to act on those Appropriations bills which were not already completed, despite a Constitutional duty to do so. Should the Supremes get involved?

    But what remedy is appropriate, and who would be able to bring suit? In what venue would a suit be located? I am unaware of any case, Federal or state, in which a Court has ordered a mandamus against a legislature. The MA decision is frustrating, but I don’t think we can call it wrong.

    What I don’t understand is why gay rights organizations do not push for this vote. If SSM is going to pass a referendum anywhere, I would think MA would be ideal. After the Amendment goes down in flames, opponents will have to quit saying SSM is imposed by liberal activist judges.

  8. #8 Brian X
    December 28, 2006

    I think, honestly, the Mass state legislature chickened out on this one. Thing is, the bigots have been trotting out democratic values, yelling “Let the people vote”, while the gay marriage supporters have been saying all along that civil rights issues shouldn’t come up for a referendum. That, I think, has the net effect of making us lefties look anti-democratic in the eyes of the average semi-informed voter. Now of course, if you ponder it more deeply, that doesn’t make sense, as I believe democratic values are important to most people on both sides of the aisle (except, of course, theocrats, autocrats, and fascists).

    That said, I think dodging the vote was a huge mistake on the part of the Massachusetts legislature. Postponing it until after the election was cowardly but still reasonable, but punting completely on it only served to annoy both sides — the supporters of gay marriage, who would love to have seen it shot down for good, and the opponents, who wanted to see it on the ballot.

    Incidentally, there have been some allegations of canvassing fraud, and it is believed that a good number of people who signed the petition did so under false pretenses. It was no more than a minor speed bump in the news cycle a year or two ago, though. Also, the general opinion in the press is that the only people left in Massachusetts who care about the matter are a shrinking but increasingly strident bloc of conservative voters; it was barely an issue at all during the governor’s race, and paled in significance compared with public disgust with Lt. Gov. Healey’s slash-and-burn campaign tactics.

  9. #9 Ed Brayton
    December 28, 2006

    I was just talking to my buddy Dan, who suggested that it is the court here who blinked. He thinks that they essentially made the political calculation that their order would be ignored by the legislature and since they had no way of actually enforcing it, they blinked first in a game of political chicken. I think that’s a plausible explanation of why the court did what they did. I don’t like it, I think that’s a breach of their duty, but it might well explain their actions.

  10. #10 AnneS
    December 28, 2006

    Simply by ordering them to vote, the court would be interfering with the legislature’s internal policies and procedures. The decision whether to take a vote or not is a procedural and, more importantly, legislative decision. Courts just don’t interfere with those matters. Whether they CAN or not is a different issue and I haven’t made enough of a study of it to have a strong opinion. I do tend to agree with the their reluctance, however, both for prudential reasons and on separation of power grounds.

    Just as an example of how reluctant courts can be to interfere with the legislature, the state of Ohio was in litigation for years over the school funding method. The Ohio Supreme Court ruled the method unconstitutional and told the State to change it. This required the legislature to pass legislation overhauling the system. After going several rounds with the Governor and the legislature, the Court threw up its hands and declared defeat. The system was (still is) unconstitutional, but the Court couldn’t make the legislature pass a law it thought passed constitutional muster and no other remedy was appropriate. Could the Court have told the legislature exactly what it needed to do to pass muster? Possibly, but it wouldn’t and it didn’t think it could have enforced its order if it wanted to.

  11. #11 kehrsam
    December 28, 2006

    AnneS: I don’t think we are in disagreement. My point was that the Court need not involve inself in the procedure; all it has to do is order a joint session and a vote. For better or worse, there is no precedent for the Court to issue this order (and in MA, apparently, at least one against).

    Where courts have been successful in showdowns of this nature, the Court usually presents it as an either/or situation, where the Court says the legislature should act and — if it doesn’t — the Court will impose its own solution. That doesn’t work here, because there is no Constitutional provision for the Courts to place an Amendment on the ballot.

    As I said earlier, I know of no cases where a Court has issued a mandamus against a legislature. This is a serious deterrent to any Court that might otherwise be inclined to issue one now.

  12. #12 SharonB
    December 28, 2006

    Again I make point of the fact that the Fundamentalists are outraged at this legislative defiance. However in Alaska, where the legislature defied the court over same sex benefits for state workers, well they like THAT defiance.

  13. #13 Robin Levett
    December 28, 2006


    I can claim no specialist knowledge of Massachusetts law – IAALBAEWL – but I can say that at English common law it would be unheard of for the courts to issue mandamus to the legislature on a matter such as this.

    Parliament, traditionally, is the master of its own procedure, and the fact that that procedure may be laid down by statute doesn’t change that fact – the Court has no jurisdiction. The remedies for breaches of procedure are internal to Parliamant, or by voting in the other bunch of scoundrels next time.

  14. #14 Ahcuah
    December 28, 2006

    Here’s the definition of a writ of mandamus from Black’s Legal Dictionary:

    A writ issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.

    “Government officer” has always meant a member of the executive branch.

    While we like to say that the three branches are co-equal, in essence, the legislative branch in some respects, historically, is pre-eminent. For instance, while the executive’s duty is to faithfully execute the laws, it is the legislature that, through its lawmaking power, says exactly how the executive is to do so. When it comes to courts, if you look at state statutes, it is the legislature that even defines which writs exist, and how they are applied (admittedly, much of this has a background from the common law, but there are many writs that have been merely abolished by the legislature).

    It is simply the case that the legislature, through long history, has had an exclusive power to control itself (as alluded to above, the other two branches are, in some sense, merely hangers-on). For instance, in the US Constitution, Article I, Section 5 says that “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own members,” and that “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”

    You may be too young to remember Adam Clayton Powell, but he was a black member of the House that was expelled. But certainly that decision was not reviewable by the Supreme Court to make sure that racial discrimination was not occurring, because, “Each House may determine the Rules of its Proceedings, . . . and, . . . expel a Member.” They are set up as the sole judge.

    While it might be desirable or make sense for the courts to be able to order the legislature to do something, that just is not the way things are right now, based on all the precedent I am aware of. It the Massachusetts court had made such an order, it truly would have been unprecedented (and quite activist).

    Another instance that might be parallel would be courts telling a legislature that they cannot start a session with prayers, or with exclusive prayers. I don’t think that there are any cases in which a court has told a legislature it cannot do so (boards and city councils are different, in that they are not the state legislatures, but derive their powers directly from the legislatures).

    By the way, I emailed to your Panda’s Thumb email address copies of the 3 cited cases you mentioned.

  15. #15 DuWayne
    December 29, 2006

    Ahcuah –

    I am not arguing, just genuinely curious. How can there be any enforcement of the legislature’s, constitutionaly defined responsabbilities, without the court having the ability to rule that they have to? It seems to me that the lege can pretty much get away with anything, the constitution, any constitution be damned.

    Not that this would be the first time the world makes no sense. I’ve been delving into economic theory for the last couple years now – talk about making little sense.

  16. #16 Ahcuah
    December 29, 2006

    DuWayne asks:

    How can there be any enforcement of the legislature’s, constitutionaly defined responsabbilities, without the court having the ability to rule that they have to?

    Well, the first thing to realize is that, even if the court did make such a ruling, how would it be enforced? The court has no guns. In fact, the only enforcement power that courts currently have (really) is contempt of court, which relies on the power of sheriffs and other executive branch officials.

    There are (theoretically) two things to keep the legislature in check (and both were referred to in the MA Supreme Court opinion). 1) These folks took an oath to uphold their constitution. Maybe oaths just meant more when their constitution was written. But what is the point of taking an oath (even on a Koran!) if you are just not going to take it seriously? 2) The voters. Presumably, voters would be incensed enough with oathbreakers to toss them out. With the power of incumbency, it’s not clear that this is worth much, either.

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