By an overwhelming vote of 151-45, the Massachusetts legislature just rejected a proposed state constitutional amendment banning gay marriage. The amendment needed 50 votes to get on the ballot for a November 2008 referendum. Though it's still possible for anti-SSM activists to press for an amendment in the next session they would have to begin the long, multi-year process all over — and their fortunes have been moving steadily in the wrong direction for three years now.
What's so striking about the vote today is how dramatically support for SSM has grown in the legislature (and in state public opinion polls) since the state supreme court ordered the recognition of gay marriages in 2004. Back then, before the state had any experience with such marriages, there was overwhelming opposition to the idea. Only about a third of the state's 200 legislators fully supported gay marriage. The only real disagreement was whether the state should constitutionally ban both civil unions and gay marriages or just ban gay marriages. Opponents of gay marriage back then gambled that they could hold out for a broad ban — a tactical decision that cost them.
The delay allowed gay-marriage supporters time to mobilize politically and to let the initial anxiety subside. More than 8,500 same-sex couples got married in the state with no obvious or immediate effect on Massachusetts families or existing marriages. (And most people understood that, however regrettable, Boston Catholic Charities' exit from the adoption field was a consequence of pre-existing state anti-discrimination policy and of the group's own decision to stop serving gay couples — not gay marriage.) Anti-gay marriage legislators were defeated in elections. Others, like the Republican senate minority leader, actually became gay-marriage supporters as time passed.
While SSM opponents gathered 170,000 signatures for a petition to have the issue placed on the ballot, the state's amendment process requires that at least one-fourth (50) of the state's legislators vote to send such a citizen initiative to a vote and to do so in two consecutive sessions. Legislators correctly understood that in such a process, by design, they are not merely "pass-throughs" for a ballot fight. Under state law, they were entitled to, and did, exercise their own judgment about the issue.
Now, even the watered-down ban on gay marriages has only anemic and collapsing legislative support. As recently as January, there were still about 60 votes in the legislature for a ban. A few weeks ago that had dwindled to the low 50s. Today it's at 45.
An even bigger win for SSM, in my view, would have been a successful referendum vote in November 2008. But it's clear there's now a secure beachhead for gay marriage. And thanks to this decisive legislative support, it now has a democratic imprimatur it would not have had absent a strong political challenge to the 2003 Goodridge decision.
Much opposition to gay marriage has been based on hypothetical and not unreasonable fears about an important and untried reform. As time passes, it is growing more and more difficult to make these arguments. In one state, at least, gay marriage is here to stay.