Grace Ross on the ConCon & Marriage

Special Feature: Guest Post By Grace Ross

Will the anti-marriage amendment be on the ballot in 2008? Did we lose big on marriage on Tuesday?

Let me say first – the answer to both the questions above is: “no”. It was unfortunate but not a significant set back. So breathe- we have work to do but it’s not at all hopeless.

Second, as I talk about what happened at Tuesday’s Constitutional Convention, let me explain what I mean when I refer to those of us who support marriage rights for all as “pro-marriage”. I got asked by an Associated Press reporter when I said “pro-marriage”, didn’t I mean “pro-equal-marriage”. And I asked him, isn't that what marriage means in this state? It’s the law of our land now. And he agreed.

Before the Massachusetts Supreme Judicial Court (SJC) decision about 30,000 couples got married in the state. Since the decision, about 35,000 got married each year. Clearly this ruling has expanded marriage – so it is pro-marriage. And no one else can claim that. The folks who want to restrict marriage are trying to eliminate marriages, so that is more properly referred to as anti-marriage.

Anyway, a little background.

For citizens to amend the Massachusetts constitution is a many step process. You have to write up the amendment, get the language checked for legality by the Attorney General and collect a lot of signatures. Then it has to be passed on by two consecutive years of the Constitutional Convention. And if you manage that, then it goes to the ballot for a vote by the people of Massachusetts on a November ballot on an even numbered year.

What is the Constitutional Convention? This is a little tricky. The legislature, both house and senate, meet together to act as the state’s constitutional convention. They meet about four or five days per year with those days spread out across two years – and those meetings equal the constitutional convention session for that two year period.

Most decisions at the Constitutional Convention require a simple majority vote of 101 (one half of the legislators + 1). For the Convention to approve passing forward a constitutional amendment to the next session, or to move to the ballot at the end of the second consecutive session, only requires a quarter of the legislators, 50 of 200. Why a smaller number? Because the framers of the constitution wanted to make it harder for a people’s initiative to be stopped by the legislators who determine so many of our other laws.

Tuesday was the last meeting of the first constitutional convention session (con-con) that the anti-marriage amendment had to pass if it would move forward to a second, consecutive constitutional convention session where it will need another 50-of-200-legislator vote to get to the ballot.

So why was Tuesday so confusing?

Because the activists in the leadership of the pro-marriage effort were confused. And because there are key pieces of the story you had probably never heard about before. And of course, the pro-marriage activists had made a huge deal of proclaiming victory at the November Con-con as if the war was over.

We did not defeat the anti-marriage amendment in November by getting 151 “nay” votes and thus stopping them from getting 50 “yeah” votes. There were still over 60 anti-marriage votes among the legislators even though many, many have been reached and changed their minds; many of those originally anti-marriage have recognized the same thing more and more of the public has realized – our getting married has not hurt the institution of marriage at all. So the pro-marriage leaders and legislators had organized as has happened again and again, to use other procedures after debate to get votes that stopped the anti-marriage amendment from ever actually coming up for an “up-and-down” vote. They used votes that only require a simple majority (101 of 200) to, for instance, adjourn the con-con itself; they got 109 votes to adjourn.

But adjourning before an up-and-down vote in November did not mean it was over – even though the celebrating by the pro-marriage folks might have made you think so! There was still one more meeting this session (the one that just happened on Jan. 2). And those other pieces of the story were about to become really important. And everything would have gone better in other important ways too on Tuesday if those factors had not been mostly ignored by the pro-marriage leaders all along.

January 2, Tuesday’s Con-con was also a critical meeting for the Constitutional Amendment for universal affordable healthcare – in fact it was more critical because the healthcare amendment had already passed one Constitutional Convention session and was needing a vote this meeting, the last of its second, consecutive Constitutional Convention sessions to get on the ballot.

The healthcare amendment advocates had been trying to get to an up-and-down vote the whole two years. Overwhelmingly they are pro-marriage, but the legislative leaders who set the agenda for the con-cons kept putting the healthcare amendment vote after the marriage vote each meeting. The legislative leaders did this even though they knew they were going to create procedural votes to avoid ever getting to an up-and-down vote on the anti-marriage amendment. Which pretty much ensured they would never get to a vote on the healthcare amendment.

Now you might be asking yourself: why would the legislature go to such lengths to avoid voting on the universal, affordable healthcare amendment? Especially when we all support universal, affordable healthcare? In fact, didn’t the legislature pass a supposedly universal healthcare bill late this past spring? Yes, it’s now called Chapter 58.

There are at least 50 legislators prepared to vote for the healthcare amendment to move forward. Originally, one of its supporters was even the head of the Senate, the Senate President, Travaglini. And you are right if you think most people support universal, affordable healthcare; in fact, the only really strong force against it is the insurance companies and probably the drug companies.

The problem is that the passage of Chapter 58, the healthcare law passed last spring, was financed with $7.5 million mostly from the insurance industry. And lots of legislators want to see it succeed. Of course, if the law ends up being genuinely universal and affordable, then it is not in conflict with the constitutional healthcare amendment. You can draw your own conclusions about why many legislators including key leaders have turned against the healthcare amendment.

So Tuesday, two constitutional amendments were up in front of the con-con. The healthcare amendment advocates have actually tried to get the pro-marriage leaders to work together all along so the healthcare amendment would get taken up for an up-and-down vote in the con-cons before the anti-marriage amendment so the anti-marriage amendment could be stopped procedurally if necessary; the pro-marriage folks have not agreed to work with them.

Anyway, in November the healthcare amendment had once again been put after the marriage amendment by legislative leaders. So it had also been stopped procedurally when the con-con voted to adjourn before the marriage vote.

Healthcare amendment leaders were pretty desperate after the November con-con. They also knew they could file a case at the Supreme Judicial Court (SJC) and ask the SJC to rule that constitutional amendments had to receive an up-and-down vote each Constitutional Convention. They consulted with the pro-marriage folks and agreed to wait until after the November con-con to file their case.

As soon as I heard the healthcare amendment leaders had filed the court case, I called Marriage Equality because I suspected that the anti-marriage folks would realize that if the healthcare amendment folks could file a suit, so could they. And while the healthcare amendment leaders may not be the best grassroots organizers, they are good lawyers and if they thought the SJC would rule for them – well, I figured they were probably right.

I did not hear back from the Marriage Equality folks but we all heard soon that the anti-marriage folks with Romney’s support filed a suit with the SJC; they asked for an immediate decision and they asked for lots of “remedies” from the court including getting to skip the con-con process completely. The healthcare folks rightly realized they needed to file their case as an “amicus brief” in the anti-marriage case because the cases were too similar; otherwise, the SJC would just apply its decision in the anti-marriage case to theirs without hearing their arguments. And they argued against the anti-marriage’s over-reaching remedies which may have helped us.

Having read the case the healthcare advocates filed, it was clear to me that the SJC would rule that our constitution required the con-con to make an up-and-down vote on the amendments. The Wednesday before New Years they ruled that the legislators had to vote “yeahs and nays”, up or down on both amendments. And that as the SJC they could tell the legislators this constitutional requirement but they had no way to force them to fulfill their oath to uphold the constitution.

Thursday, the pro-marriage folks were clearly surprised by the SJC’s decision and were caught off guard. You can count on it that the anti-marriage folks had been planning, hoping and preparing for the SJC to make that decision. And the pro-marriage folks I talked to seemed to think that the SJC had sort of reversed itself, reversed its earlier commitment to constitutional equality applying to marriage.

Now, it is important to understand what they had missed. The SJC had made two decisions – two unanimous decisions. One part of our constitution says we have equal rights. One part says that when the people try to amend the constitution, the legislature must let those amendments go to ballot on the basis of an up-and-down vote of 50 out of 200 votes. There are no contradictions between these two decisions. In fact, if we had secured 151 pro-marriage votes already, the SJC would never have been asked for a ruling. The decisions only act in opposite ways because we have not yet finished our organizing. We have another whole year in fact anyway.

There is an important understanding of democracy I need to mention here also. In a democracy, we are supposed to get to vote on issues. There is one major exception to that – the majority does not get to vote away the equal rights of a minority. This is important for many reasons, but a basic reason why is because otherwise the majority could consistently increase its power and concentrate its control by taking away the rights of others to participate at all.

Somehow, the pro-marriage leaders thought they could argue that one SJC decision was more “constitutional” than another, and ask legislators to ignore their constitutional oath – even though the SJC had just clearly ruled that they had to make an up-and-down vote, not stop an amendment procedurally. That’s like saying someone is a little bit pregnant. It is either constitutional or not, there is no “little bit” constitutional. In fact, Governor-elect Patrick had tried a version of that argument in also asking the legislators to ignore their constitutional oath; he tried to argue that the fact that a majority cannot vote on the rights of a minority somehow over-ruled the constitutional requirements for the process to amend the constitution.

Anyway, the pro-marriage folks only had 109 legislators willing to vote procedurally in November. For sure, at least ten of those legislators were going to listen to the SJC telling them they were breaking their oath if they did not allow an up-and-down vote. No amount of arm-twisting was going to stop an up-and-down vote on Tuesday and there were still going to be 61 anti-marriage votes.

The pro-marriage organizing strategy was telling all of us to just call our legislators and ask them to stop the anti-marriage amendment from coming to a vote by procedural means again. Partly because their message did not address the SJC decision, the outcome was so confusing to so many. Most pro-marriage supporters did not understand what had changed and thought we had actually lost power and ground when we had not!

Tuesday was the last day of the legislative and constitutional convention session. Wednesday, the new session, this session, started without the legislators who were replaced in November. As of Wednesday, the anti-marriage forces had lost five or six legislators in this new session. As of Wednesday, we gain five or six pro-marriage votes and so only need to turn another 7 or 8 votes this two-year session to win. And that is to win an up-and-down vote. If we need it this session, we may well still be able to get the legislators to use a procedural vote to stop the anti-marriage amendment going to the ballot.

So 24 hours after the vote Tuesday – which was predictable as soon as the healthcare advocates filed their case and inevitable after the SJC decision -- we are closer to victory than we have ever been. In fact it will only be a decisive up-and-down vote where we get 141 votes or more that will convince the anti-marriage forces to stop coming back again and again. And every year that passes more people in Massachusetts are pro-marriage.

The really bad news from Tuesday was that the legislators as a whole used procedural votes to kill the healthcare amendment. The SJC had ruled that they could not avoid an up-and-down vote on a constitutional amendment; they could not vote to adjourn or send an amendment to a study committee, etc. But they had already sent the healthcare amendment to study and the healthcare advocates had not succeeded in getting them to undo that and get an up-and-down vote.

So if they were constitutionally required to vote – why did they only follow the SJC ruling on the marriage amendment where there is real division among the public (we have a very clear majority but there is still real division) but they did not follow their constitutional responsibility on the healthcare amendment where there is overwhelming public support and it is only the insurance and possibly drug companies that really oppose it? Is the constitution only supposed to apply to we, the people, but the interests of the corporations are not governed by the constitution?

The marriage vote was merely a measure of where we really stood, predictable and in fact the constitution still gives us another year. Today we are already 5 or 6 votes closer to our goal. And with some hard work and smart organizing (including working with our allies who may be able to reach some of the remaining 56 or so votes because they have connections to them on other issues), our win is within reach. In fact, if the pro-marriage leaders had been working with other groups that support our rights but work on other issues (like the healthcare advocates), we might be even closer now!

It is not the SJC’s responsibility to try to misinterpret the constitution to protect our rights as a majority; it is the legislators which must come to understand that the majority does not have the right to vote to take the equal rights of a minority. Even if they oppose equal marriage, what if they come to understand that welcoming vicious prejudice into our state for a ballot fight is not something they want? And we need them to understand that if they have a constitutional obligation to vote on one amendment, then they have to apply that to all amendments. Otherwise, they cannot tell us they had to vote on the anti-marriage amendment – because then they would have had to vote on both. And they cannot tell us they have to vote to let one move forward, but not vote to move forward the one that is opposed primarily by corporations.

Since this was predictable at least by last Thursday, let me offer you a different vision.

Imagine if the pro-marriage organizers had realized that pressuring our friendly legislators to vote against what they now understood the constitution required them to do, was not a respectful way to ask them to fight for our constitutional rights under a different part of the constitution. What if they had emailed all of us and asked us to work on the remaining 61 anti-marriage votes. And if that did not work, what if our pro-marriage organizers had held a big press conference Tuesday morning. They publicly told all the pro-marriage legislators that they were released this time from trying to stop the vote – especially since 24 hours later we would have more supporters in office. And that since we clearly had the power to, we would reserve the request for them to kill it procedurally till late next year if we still needed it – which we might well not. Either way with some work, we are very likely to win in the coming session. And they told the legislators that we expected them to be consistent; if they were going to follow their constitutional obligation to vote up or down on the marriage amendment, we expected them to do the same on the healthcare amendment. Or we would know them to be frauds.

And thereby take the high road. Show our consistent support for the constitution. Not let the anti-marriage forces claim victory. Properly inform the public and our supporters. Keep up our momentum. And start the process with the healthcare activists of building the coalition-relationships we will need to convince another 7 or 8 legislators to vote for us in the coming session.

Win-win-win. We are worth it. We deserve it. And we are going to get there anyway.

There is a great quote that says “when noble causes conflict, they are not asking for enough”. Tuesday, too many of us acted out of desperation and fear and allowed the forces of good to be divided and we lost more, much more than we needed to. Not on the pro-marriage vote, so much as in acting defeated, seeding the upper hand to the anti-marriage forces in the media and losing guaranteeing our right to universal, affordable healthcare and requiring of our legislators that they fulfill their constitutional responsibilities.

Let’s make this session our session! Let’s take this as another lesson on why we must reach farther and work together. El pueblo unido jamás será vencido; the people united cannot be defeated.