Constitutional Convention (Wednesday, Feb. 11, 2004)

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A QUORUM ROLL CALL INDICATED THE PRESENCE OF A QUORUM AT 7:42 PM

Rep. Swan said the second amendment is probably the best we are going to get today. I urge my colleagues to vote for the further amendment. I was impressed with presentations made earlier today, with the senator from Suffolk who talked about her experience in Arkansas. When I came here ten years ago I explained my experience was different from any other person here. Through tenth grade, I experienced separate but equal. My school received hand me down football equipment. You may not know how it feels to be in a different category.

Sen. Travaglini said time is getting close to the hour of ending our business for the day. Get everyone out of the well and take your seats and allow this discussion to continue. We would like quiet in the chamber.

Rep. Swan said I hope my experience provides a frame of reference. Listeners can understand how it feels to be designated as different from the majority. I entered the military in 1953 and witnessed the painted over colored only sign. I traveled in integrated and segregated buses. Article 1 says all men are born equal. Let’s talk about happiness for a moment. People wonder why associate the struggle of gays and lesbians with the struggle of blacks in America. I thought about that. I helped organize the March on Washington. I was in Alabama before and after the march. I worked for the civil rights law that was passed in 1964. Yes, it’s about civil rights. Anytime two people come before the law and they do not have the same rights, something is wrong with that. If any two people come before me, and I deal with them differently under the law, then something is wrong with that. We are talking about civil rights. It is about civil rights. I have had discussions with family members. I am one of 15 children, the 11th child of George and Sally Swan and some of my brothers disagree with me. I asked my brother a few days ago why if it’s not discrimination and it’s not about civil rights, then why do I hear the same words I hear when people opposed children going to school together or access by all to public accommodations or about buses being integrated. In Alabama in 1961, on the freedom rides, the bus was stopped and burnt. Civil rights fighters were on that bus. I have heard about leaving it up to the people. Mobs are not supposed to rule. Sometimes when an issue is very emotional, it was important that those decision making processes be deliberate so that some of the emotions could be taken out of it. I thought the decision made common sense. It talked about rights to people who did not have them.

Rep. Knuuttila said this morning at 4 am I woke up in Tampa and flew back here. I had not planned to speak. The people are not a mob. The gentlelady from Boston said it was not responsible to put this before the people. She actually used those words. It brings home that we are not changing the constitution today. We are creating a vehicle and presenting it to the people to do so. I support representative government but this particular issue strikes me as an issue worthy of bringing to the people for their determination. Think about where the root fear is. This amendment creates separate but equal and is ripe for further challenge, possibly in the US Supreme Court. I am still not sure whether I am going to vote for it. It does compromise the art of good government. I am the last person to speak before you take a vote on this. I end with those comments. We are responsible and are taking responsible action by placing this matter before the people of Massachusetts.

Rep. Loscocco said I am deeply moved by the comments from the representative from Dorchester, and the comments from the representative from Springfield. I have many gay friends, family and colleagues in this chamber. They enhance the quality of all of our lives. My comments previously have been misunderstood. The court, if it had found this was an equal protection right, then that would be the end of it. I would support it as a lawyer and someone who loved the law, unless and until the US Supreme Court came out with a contrary decision. This amendment does not define civil union. We are again going to be ceding to the courts to fill in the blanks and have it evolve over time. We are tied up with a lot of procedure here today. Should we just settle for a change to our constitution? After we define marriage, I suggest we make a further amendment that the General Court shall enact such laws as it determines necessary to establish civil unions as defined by the General Court from time to time. This is an issue before us as representatives. Whether it’s 4-3 or 7-0, the Supreme Court has not said equal protection under the constitution. Let’s decide this. Let’s step back and decide whether to let the courts to decide this or we decide this. Let’s get to something where we enact it and we define it.

Rep. Frost said I have a hard time accepting that this is a compromise. I don’t believe we should pass this. However, I see that some members who said they would not vote for this may now vote for it. Is this just a way for us to put this as the main question and squash all other amendments. I am curious to see how that turns out. There is another problem with this amendment. It conflicts with so many people. People believe civil unions are the same as marriage and others do not. If you believe civil unions are correct, do it through a separate constitutional amendment or referendum. Do not combine it with this – the definition of marriage between one man and one woman. Someone is going to be left out of the process and disenfranchised from marriage.

Rep. Kennedy said he had not intended to debate but after hearing several comments, I felt it was a good opportunity. Like so many of you, I have had a most difficult time wrestling with the issue. I have truly agonized over what the best way to handle this matter. Never in my two decades in this chamber have I ever hesitated or found a doubt over other matters like capital punishment, as I have with this. I have lost sleep and tossed and turned. But to hear the words of one of the finest men I have served with, the gentleman from Springfield, only allows me to have some final resignation and acceptance of my endorsement of your amendment. Mr. President, I compliment you for crafting this. It may not be the panacea. It may be the anathema of people on the other side. What we have is a compromise package that I hope can be lived with by all parties. I wish this wasn’t shoved down our throats by the courts. The people I hear from on both sides are good, decent and well-meaning people. They are people who fear for the future and what is going on and they fear being denied justice long overdue. I was going to move to postpone today’s action. I realized that was not prudent.

Sen. Joyce moved the question at 8:14 pm.

Sen. Travaglini said there is no debate. A two thirds vote is required. Sen. Joyce withdrew his motion.

By voice vote, amendment adopted.

Rep. Peterson requested a roll call and there was support.

Sen. Travaglini said before we take the vote, the effect of this vote will be that the text offered by Sen. Lees will replace the text Sen. Barrios has offered. If the Lees amendment is adopted, then that will become the new text offered as a substitute for H 3190, which is printed in the calendar.

The Senate finished voting at 8:19 pm.

THE SENATE ROLL CALL VOTE WAS 32-7

THE HOUSE ROLL CALL VOTE WAS 62-97

Reps. Wolf and Candaras voted late, with unanimous consent. Both voted no.

AMENDMENT REJECTED BY A ROLL CALL VOTE OF 94-104

Sen. Lees moved to recess the convention until 11 am Thursday.

Sen. Travaglini said there is an informal session at 11 am in the Senate chamber. That doesn’t take much time. 11:15 am will do nicely.

CONVENTION RECESSES: At 8:29 pm, Senate President Travaglini banged the gavel and by voice vote, recessed the convention until noon on Thursday.

OBJECTIONS: Several members shouted “objection” and “I doubt the vote” but the President had stepped down from the rostrum. Speaker Finneran took the gavel.

FINNERAN RECAP: Speaker Finneran said the convention has been recessed. It has been an extraordinarily difficult day. It is the sense of the President and others that the break that is now anticipated would be productive. It obviously is going to require effort and exploration given the fact that two substantive amendments offered by leadership of each branch have been rejected. Issues have been refined. Amendments pending since the start of this afternoon’s convention remain pending. It would be the request, offered in the aftermath of the convention, of the chair for everyone to abide by the decision announced by the president to come back at noon refreshed with an eye and ear toward working through the issues before us.

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