After hearing a suit filed by Governor Romney and other same-sex marriage opponents earlier today (Doyle et al. v. Galvin et al. (SJ 2006-0486)), SJC Justice Judith Cowin sitting as a single justice has determined that the case should be heard by the full court on December 20,2006. The plaintiffs asked the court to compel the legislature to vote on the proposed constitutional amendment, or, if they fail to do so, compel the Secretary of the Commonwealth to place the measure on the 2008 ballot without it having first been voted on by the legislature.
The defendants argued that the issue has already been addressed by the SJC in the case of LIMITS v. President of the Senate, 414 Mass. 31 (1992). In that case, the court said “The courts should be most hesitant in instructing the General Court when and how to perform its constitutional duties. Mandamus is not available against the Legislature…The reason for this rule rests on separation of powers principles expressed in art. 30 of the Declaration of Rights of the Massachusetts Constitution. Those principles call for the judiciary to refrain from intruding into the power and function of another branch of government, in this case, the joint session of the Legislature held under art. 48.” They went on to hold that Article 48 of the Constitution “gives to the courts no enforcement role. When the purpose of art. 48 has been frustrated, the only remedy may come from the influence of public opinion, expressed ultimately at the ballot box.” According to the Boston Globe, plaintiffs argued that “the 1992 case differs because lawmakers adjourned the session, giving the governor the right to call them back. In the gay marriage case, lawmakers have simply recessed.”
More information on same-sex marriage, including other cases and proceedings, is available at Mass. Law About Same-Sex Marriage.