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The current Travaglini-Lees constitutional amendment: a terrible compromise

POSTED: May 5, 2004  UPDATED: Dec. 12, 2011

On April 30, 2004, the Massachusetts legislature, with the support of Gov. Romney, after months of deliberations, negotiations, and posturing, crafted a constitutional amendment in response to the SJC decision mandating same-sex marriage.  In order to become enacted, it still needs to pass another vote of the Legislature this year, and then a vote of the people in 2006.

The final amendment, approved on a 105-92 vote in 2004, reads:

Proposed Constitutional Amendment

"The unified purpose of this Article is both to define the institution of civil marriage and to establish civil unions to provide same-sex persons with entirely the same benefits, protections, rights, privileges and obligations as are afforded to married persons, while recognizing that under present federal law same-sex persons in civil unions will be denied federal benefits available to married persons.

"It being the public policy of this commonwealth to protect the unique relationship of marriage, only the union of one man and one woman shall be valid or recognized as a marriage in the commonwealth. Two persons of the same sex shall have the right to form a civil union if they otherwise meet the requirements set forth by law for marriage. Civil unions for same sex persons are established by this Article and shall provide entirely the same benefits, protections, rights, privileges and obligations that are afforded to persons married under the law of the commonwealth. All laws applicable to marriage shall also apply to civil unions.

"This Article is self-executing, but the general court may enact laws not inconsistent with anything herein contained to carry out the purpose of this Article."

Reading the text, it seems like a bad parody. It says that it is "the public policy of this commonwealth to protect the unique relationship of marriage" and then goes on to do exactly the opposite. It creates a relationship that's equivalent.

As one observer said, it's as if the Marx Brothers have taken over our legislature.

In fact, the Massachusetts Constitution does not need to be amended to "protect" us from the SJC decision. John Adams did not make a mistake when he wrote the constitution in 1780 by forgetting to put in a prohibition against same-sex marriage.

The constitution is not the problem. We, the people, are the problem. We have allowed ourselves to lose control of our government, particularly our judiciary. The solution is to regain control of our own government, not attempt to put a band-aid on the constitution.

It was never intended that we amend the constitution whenever a rogue, activist court issues an illegitimate decision. It would lead to anarchy. The real answer is that we need control of our own government. 

Furthermore, who is to say that the same court would not turn around and ignore or circumvent a new amendment?

Given the current behavior of the SJC, who knows what the future might hold? Would we need more amendments? Consider the following:

  • What if the SJC declares that there's "no rational basis" for limiting marriage to only two people?
  • The SJC is already scheduled to re-examine the incest laws later this year.
  • Lowering the age of sexual consent has been a demand of the homosexual movement for decades, and has already taken place in several European countries (in some cases, down to 14 years old).  When will Massachusetts courts revisit this?
  • Activist courts are being pressured to rule that ever younger girls may be given abortions without their parents' knowledge or consent.  Will the SJC change our laws on this?

This amendment reflected the worst elements of the legislative process. As described above, it would ban same-sex "marriage" but at the same time would write into law same-sex marriage under the title "civil unions", which legally would be indistinguishable from marriage. In effect, the legislature attempted to placate the homosexual movement while maintaining the appearance of not doing so. Clearly, a majority of legislators acted completely without principle, and the result was an amendment that is unacceptable to just about everybody.