Constitutional Convention (Thursday, Feb. 12, 2004)
CONSTITUTIONAL
CONVENTION – THURSDAY, FEB. 12, 2004 RETURNS: At 2:49 pm, Sen. Travaglini
called the convention to order. QUORUM DOUBTED: Sen. Murray doubted the
presence of a quorum. A ROLL CALL VOTE DETERMINED 197 MEMBERS PRESENT
Question again came on Rep. Travis’ amendment. Sen. Lees
said I appreciate the opportunity to address the convention. People are asking
questions as to what is going on after the amendment I filed along with the
Senate President was defeated. Right after that happened, we heard from several
House members that very similar language was being passed around and was going
to be offered on the floor. Both of those amendments maintain the language
saying marriage is between one man and one woman, and both establish civil
unions between same-sex couples. Obviously, many of us have been having
discussions to see if we can come up with some compromise. We offered that
compromise yesterday because we heard many of the members wanted it. We are
still having those discussions and I believe very strongly that at some point
we may be able to get to that point. We’re going to hold for now. We have had discussions
and are still having those discussions. I ask you to vote no on this amendment
and wait and see if those negotiations can continue to proceed and at some
point come up with a compromise. I want everyone in here to recognize that we
are still voting for this bill in second reading. There will be opportunities
to vote on this in third or there will be opportunities to vote on another
Travis amendment that is printed in the calendar. There are many people in here
on middle ground and there are many people in here that want some sort of
compromise. I know there are people on both sides of the issue and they have
indicated that over and over again. I’m pretty honest when I get up and speak.
In this case, we’re not there. I do believe in my heart that we can still come
up with some sort of compromise either today or the next time this convention
meets. I would hope, Mr. President, that you and other members would join with
me. I do believe that we should have something on the ballot. But I also
believe that we as a body should have the opportunity to indicate to everyone
that we don’t want to discriminate and if there is a ballot question, and
should it pass, that the benefits are protected. I think that’s what we’re here
for, that is what this is all about. I have been working on this diligently, as
have the president, the speaker and the minority leader in the House. I think
we will come up with something very similar to what has come to now be known as
the Rogers amendment that was
passed out last night. When we go to a vote on this, I ask my colleagues, to
give us some time, We are working hard. I believe cool heads can prevail here.
Rep. Rushing said my first surprise was to yield to the minority leader of the
Senate to find out that the Republicans had to caucus for him to make that
speech. In 1790, in the Commonwealth
of Massachusetts, the first United
States census was taken. The first was taken
in 13 states. And when the census was taken, the only state that enumerated no
slaves was the Commonwealth of Massachusetts.
In 1790, this was the only state in the union that had no slaves. We continue
to praise ourselves and our ancestors for that. Massachusetts
was the first state in the union to have no slaves. In 1790 for the first
census and for all censuses after that, slaves were counted. There was a column
to say - record the number of slaves. And why was that? Because in the
Constitution it said every 5 slaves would be counted as 3 people when that
state brought forward their calculations as to how many representatives in
Congress they would have. Every census had to count slaves. In no census of the
United States was
there ever recorded slaves in the Commonwealth
of Massachusetts. Written into the
Constitution was that section and several other sections that dealt with the
regulation of slavery in the United States,
because it was in the Constitution there was nothing that any Legislature could
do. No Legislature could pass a law that would affect the national regulation
of slavery. We could not pass a law to say those slaves were free in Massachusetts
because the United States Constitution had already deprived those African
Americans of their freedom and there was nothing we could do about it. But of
course, we know how the United States Constitution got changed. But we have in
our history that example of that constitution and we have an example of how our
constitution can take away those freedoms. -more-
Rep.
Rushing continued: But the United States Constitution and the Constitution of
Massachusetts in 1790 were very different documents because the US Constitution
did not guarantee liberty. But the Massachusetts Constitution did. No one here
should be surprised that a year after the US Constitution was ratified, that an
African American elderly woman in Stockbridge decided she was not a slave anymore.
So she sued. And she won. One judge ruled that slavery was unconstitutional in Massachusetts.
Not because of the US
Constitution, but because of the Massachusetts
Constitution. The difference was that nowhere in the Massachusetts Constitution
did we separate, or enunciate any group that would be separate under the
constitution. We were able to take this remarkable position because of a
constitution that said liberty would be available to every citizen of this
commonwealth. We are being called by some today to change that. We are being
asked to say to one group - you no longer have the rights of everyone else in
this Commonwealth. The people who wrote this constitution guaranteeing those
rights to everybody, they did not know who everybody was going to be. Many of
them had prejudices that many of them would condemn today. At that time, Roman
Catholics could not vote in this commonwealth. So in 1813, this state passed a
law that said all people could vote regardless of their religion. They would
not have been able to pass that law if written into the constitution was any
language denying rights to everybody. We haven’t been perfect in our history.
That prejudice of course remained and we finally got to a Legislature to try to
write that prejudice into our constitution. If we do what some are proposing in
the Constitutional Convention, we will get a constitution that will prevent this
Legislature from opening up, undoing the prejudice of this generation. Let us
not do that. Let us not pass any amendment that is going to put this constitution
back to the days of the know nothing. That is going to bring this constitution
back to the US Constitution of the days before. We can prevent that from
happening. Mr. President the job that we have before us is stated clearly in
the calendar. Where is the expediency to have our fundamental document of this
commonwealth, this commonwealth’s fundamental statement of liberty, that has
been damaged once. Let there be no mistake about it. If this vote is in the
affirmative, it is this Legislature declaring that it is expedient to amend
this constitution in this way. The question before us is not to let the people
vote or not. The question before us is if it is expedient. I’d like to say that
there has been a considerable amount of debate on this. For me, it is a civil
rights issue. Because I understand the institution of marriage is a civil
institution as well as a religious institution. Marriage is a civil institution
as well. It is that civil institution that creates the benefits that we have
written into our law. When married people get their benefits they do not go to their
religious institution to get those benefits. They go to the government. The
question before us is should everyone, regardless of their gender, have the
opportunity to choose their partner in that institution? What we find in that
SJC decision is there is no order to change any part of all of the marriage
laws that we have in this state. The order is simply to open those benefits to
a group of people that have been discriminated from having those benefits. It
draws distinctively from our understanding of liberty. When the people wrote
the US Constitution, they had no idea that a debate like this would ever
happen. But remember, the founders of our constitution had no idea that I would
ever be standing here talking to you. The members applauded. Rep. Rushing
continued: Let us make that distinction in our minds. There are people,
religious leaders that think what we are doing is wrong because of their
religion. I ask them to consider the alternative – deliver their religion in a
nation that does not believe in freedom of religion. Consider being in a nation
that has establishment of religion and decide where would you prefer to be?
Where would you prefer to evangelize? Let me tell you what the rule is. If you
are a little religious group or a huge religious group, you are free to
practice. But you have to follow this rule. That the other religious groups
down the street that have the freedom to practice also. You have to buy into
that rule. There are religious groups in this state that believe same sex
marriages are fine. You may not believe that. But let me tell you something
about the rule. It’s all right. The big religious organizations in this state
were once tiny. –more-
Rep.
Rushing continued: The reason why we have this freedom is because we all
understand our relationship within a democratic society. There are a number of
ministers of African American churches that have forgotten that. They have
forgotten their relationship to the struggle to the rights of African
Americans. They have forgotten it in an incredible way, because they are
telling us that black people, once they have gotten those rights, they don’t
have to share what they got in those civil rights. I say to any of the leaders
of African American leaders in this state that have taken that position – shame
on you. Maya Angelou wrote these words at Clinton’s
first inauguration. Rushing read Angelou’s poem. We can do this and our children
will celebrate this day like they celebrate the knowledge that this state was
the first state to have no slaves. He quoted Martin Luther King. I am convinced
that we together, in this convention are heading toward justice. Rushing
received a standing ovation from the members. He shook hands and received hugs
as he returned to his seat. Rep. Kaprielian said that was a tough act to
follow. But this is an extraordinary time. We all have to decide based on who
we are, what we believe, and more importantly, how we have evolved. Many of you
are aware of my Armenian heritage. But many others may not realize of my
heritage from Georgia.
My father was lucky to know true equality under the law for all of his life. My
mother was brought up in a segregated society all her life. They drank out of
separate fountains, rode in separate cars. If we did this today, it is not what
we ought to be doing. I have seen in my life people who have acted in real
courage and conviction. Some of those people are my colleagues. But during this
period I add two people to the list. Two people whom I have never met and never
spoken to. I speak of the Goodridge’s. To me, they are very much the definition
of courage. They have put themselves out there, knowing what they were doing
would not be accepted by many. I suspect the Goodridge’s are asking themselves
if what they have done is right. To them, in those moments I say, someone had
to be first, and many of us admire them for it. Today I stand with my colleague
from Boston, Ms. Wilkerson, in
unity against inequality and we say, not today, not you. Rep. Atsalis said I am
for the Travis amendment. But what we lose sight of is we’re allowing the
people the vote on this measure in two successive conventions. I have received
hundreds of calls and they cite this amendment because it has gotten all the
publicity. They want to vote on this amendment. I hope it receives a majority
vote this afternoon. Rep. Travis was recognized. Rep. Reinstein said I would
like a clarification. If something was passed at this convention, and it went
for a vote at the next successive session, my understanding is that it could
not be changed. Is that correct? Sen. Travaglini said that is correct. Rep.
Travis said Sen. Lees gave you a forewarning. If we do not reach a compromise
on this amendment today, you will run from this vote and you will have no
excuse to hide. They’re working on it. They’ve been working on it for 5 days.
I’ve been working on my amendment for 2 years. It’s been known across the 6
million people for 2 years and people are telling me they don’t know what is in
it. Let me tell you about the comments from the gentleman from Boston.
Slavery was not outlawed in the constitution. Slave trade was outlawed after New
Hampshire adopted the US Constitution in 1788. He
claims this is a civil rights issue. And I will defend him to the wall that
everything in his argument has to do with civil rights. Nowhere in those
amendments or in the generations was there any discussion on marriage of two
people of the same sex. -more-
This is
a new phenomenon brought upon in Massachusetts
by a liberal mind. This is a change in mind. We are changing a mindset. We lose
the point. We lose the direction. Why are 38 states in this union are running
to pass laws against this activity? They believe, and 38 states are wrong and Massachusetts
is right in this dilemma. I have good faith in the people in this hall. But
this is a constitutional convention to talk about an amendment. It is not about
a bill being passed. In this dilemma we have, it is the outside people who want
the right to vote, it is the people inside who have to grant them that right.
My vote is not more important than theirs. No. Not on an issue of this
magnitude. The amendment we have before us is still the simple language we had
2 years ago. I will not let you get off the hook on the question of marriage.
You will vote on this if I have my way. You will not escape the wrath of the
public who are calling you, who are writing you. They know the facts. They know
the dilemma. For us, to have the audacity to take that right away, it is not
going to fly back home. You will be held responsible. You will have to answer
to those who got you here. And that is called an elective democracy. You take
this away from them, you will not be able to answer to them, because you denied
your people their right. Rep. Malia asked Travis to yield. Rep. Travis said the
greater number in the hall is for the people to vote. This will be the most
important vote you’ll take in your career. I bless you if you vote against it
or for it. Rep. Parente said I find it interesting the discourse that went on
earlier about the know nothing part of history. It was the then Senate
President who tried to remove language from our constitution against Irish
Americans. Don’t get mesmerized, don’t be made to feel guilty because you want
to bring this vote to the people. I didn’t realize people were going to bring up
their personal experiences. In my district, a group of veterans wanted to place
a non-binding question on the ballot about a monument in our town. The veterans
wanted it in the center of town. We could place a non-binding question on the
next ballot. We went all around town and collected signatures. We collected
over 1,400 signatures and we put that vote on the ballot and the people came
through. The ones who fought us on placing that monument in the park were on
the committee. The people gave them the opportunity that they were going to be
denied. And that’s what we’re trying to do here. Thousands of signatures have
been gathered. And those people deserve their day to decide. And as I said
yesterday, they are the bosses. That’s the system. The people. And you would
deny them after they went through that effort. Sen. Magnani asked for the clerk
to clarify the question. The clerk said the question before us is a Travis
re-draft, which is a substitute to the Barrios amendment. Sen. Magnani said is
it true that we are voting on the substance of the amendment, and not whether
it will be put before the voters?
Sen. Travaglini said that is correct.
Sen. Fargo doubted the presence of a quorum. A QUORUM ROLL
CALL SHOWED 196 MEMBERS PRESENT at 4:16 pm. [Rep. Rodrigues was present at his
desk but did not hit his button, Speaker Finneran said. That would raise the
total to 197]
-more-
CONSTITUTIONAL
CONVENTION – THURSDAY, FEB. 12, 2004 Rep. Parente said I take back everything I
was thinking about who did this to the microphone. I did not question the
quorum, but I’m happy to have Sen. Fargo do that. What I said is having been
here 25 years you’ve heard everything. And I remember pleading to remove the
anti-Irish, anti-aid amendment. Take a look at the cartoons from the 1920s. We
still have that offensive language in the amendment. Many people who oppose
this amendment have gotten up and defended that amendment. I feel uncomfortable
about the person who said this debate is about one member. I like that member
very much and share much in common with that lady. But so long as this is personal,
I was a foster kid. Talk about discrimination. I was placed in various homes. I
was 7 years old when a little girl told me she couldn’t play with me because I
was a kid. We have been characterized as anti-gay, anti-color, anti-Semitic.
Let me tell you about color: I talked to a woman of color and she told me you don’t
get it. I said, Italians were discriminated against in Milford.
She said you don’t get it. If people just see you, they won’t know you are Catholic
or Italian or a foster kid. But when I walk into a room people know. So don’t
compare this to other movements. Talk to foster kids. You talk about
discrimination and due process; there’s something else we do here that I
disagree with: they way we terminate parental rights. We take children away
from families. Where are those parents’ civil rights? If I didn’t know we had
to stay on the subject in general terms, another issue we are facing, don’t let
them convince you not to vote on this. You heard it said here: we would be voting
against the SJC’s law. That’s not their mission. They don’t make laws. Then we
become a government of men and not laws. When you apply for a marriage license,
the application is in three sections. We should go back to religion. When it
comes back to religion or moral values; those are the things you teach at home.
But when it comes to sexual orientation, we have to teach them in school.
Because they might not be taught at home. Boston Schools introduced their
educational program about sex and the city. But I can’t even deign to tell you
what was in those school lessons. I still have brochures about that program. I
can send one to you. So what we are discussing right now is the substance of the
question. I hope you will vote yes for the Travis amendment.
Speaker Finneran took the gavel. Rep. Parente said this is
my last year. [She later clarified that she will seek re-election] I will be
heard. Ok, Mr. Speaker.
Speaker Finneran said the chair has announced a brief
recess.
ANOTHER COMPROMISE AMENDMENT: Speaker Finneran said we will
recess now until 5:45 pm to allow House members to caucus in the lounge and
Senators in the President’s Office. There has been talk of compromise language
which will be presented.
RECESSES: The House recessed at 4:58 pm.
RETURNS/ RECESS: At 5:57 pm, Sen. Havern called the
convention to order. He immediately recessed, intending to return at 6:30 pm. RETURNS/
QUORUM DOUBTED: At 6:36 pm, Rep. Finneran, in the chair, ordered a quorum roll
call. A ROLL CALL VOTE DETERMINED 197 MEMBERS PRESENT -more-
At 6:47
pm, Sen. Travaglini took the chair and asked all members to take their seats.
He said I’d like to inform the members we are still on the Travis amendment to
substitute the Barrios amendment. The chair is going to recognize for the first
time in this chamber, Rep. Steven Walsh. WALSH MAIDEN SPEECH: Rep. Walsh said
it’s been a long couple of days. I think people have been impressed with the
debate. This is not a quick process. We shouldn’t rush to make a change. I rise
today in opposition to the further amendment and to the main amendment and ask
that the SJC decision stand. I’m not the first to say this has been a historic
time. When I look up at the names above us, I wonder what they would think. To the
gentleman from Boston, I think
they’d be very proud of you. He quoted the constitution. In the 20th century,
this commonwealth was a leader in supporting the rights of women. Imagine that,
back then not a single seat in this chamber was occupied by a woman. This is
not a time for blacks, not a time for women. It’s a time for gays. I was out to
dinner last Friday night. The waiter recognized me and said, I’m gay. But is it
my choice to be gay? Is it my choice to be beaten, to be laughed at, to be spit
at? Who would choose this, he said. This is how God created me. Because of
their skin color or their religion, many people in this room have been discriminated
against. In the 21st century, this state is asking to lead another revolution.
We cannot shirk from our duty. This issue has electrified and motivated many
people. I just hope the people inside and outside this chamber are as motivated
about local aid or about keeping schools open. I struggle with this issue. I’m
a practicing Catholic. When I think of the church I was raised in, I think of
the church Father MacDonald was in, a church that didn’t allow for
discrimination. Unlike the budget, where funding one program leaves another one
unfunded, granting rights to one group does not take it away from another. It
just extends the circle. Some say, let the people vote. But that isn’t what was
intended. It was intended to let the people in this chamber vote. There’s one
question the citizens of this commonwealth will be able to answer after today –
where were you when the Massachusetts Legislature voted to change our constitution?
And I will be able to tell my children and my grandchildren that I was right
here in this chamber and I stood up to fight for the rights of others. Drown
out the noise, drown out the calls and drown out the e-mails. And do what’s
right. And I hope for their sake, we do. Members stood, applauded and
congratulated Rep. Walsh on his maiden speech. Sen. Travaglini said for the
purpose of the observers in the gallery, it is the tradition of the body to
applaud enthusiastically when a member gives his first speech on the floor, regardless
of his position. It is a tradition that I will allow. TRAVIS AMENDMENT: Rep.
Pedone asked to move the question. It was seconded and Sen. Travaglini ordered
a roll call to move to the question. A two-thirds majority is required.
Rep. Hynes rose and asked, what are we voting on? The Senate
roll call continued. At 7:05 pm, Clerk Welch called the roll of senators and
they voted prior to opening up the electronic roll call machine to record the
votes of House members. Sen. Antonioni asked to switch his vote from “No” to
“Yes.” THE SENATE VOTE WAS 39 – 0. Rep. DiMasi ordered the roll call for House
members. THE HOUSE VOTE WAS 131 - 27 BY ROLL CALL VOTE OF 170 – 27, MEMBERS
MOVE TO VOTE ON THE QUESTION. -more-
From the
rostrum, Speaker Finneran said so the public is aware, the question before the
House now is on adoption of the Travis amendment, which was offered as a
substitute for Sen. Barrios’ amendment. The question before the convention is
now on the adoption of the amendment. The House will open the roll call machine
while the Senate calls the roll. Rep. Peterson said my understanding is that
the Senate votes first. Speaker Finneran consulted with the clerk and said the
vote can be taken simultaneously. TRAVIS AMENDMENT VOTE: Clerk Welch called the
roll of Senators while House members voted on the electronic machine. SENATE
VOTE WAS 9 – 30 HOUSE VOTE WAS 85 – 73 BY ROLL CALL VOTE OF 94 – 103 THE
AMENDMENT IS REJECTED. At 7:20 pm, Sen. Travaglini ordered a brief recess to
conference with Speaker Finneran, Minority Leader Jones, Sen. Murray and the
senate clerks.
Speaker Finneran called the convention to order. REPUBLICAN
CAUCUS: Finneran said Rep. Jones has asked for a Republican caucus and I will
accommodate him. RECESS: The convention recessed at 7:26 pm, intending to
return at 7:45 pm. Finneran said House members not caucusing are asked to stay
in or close to the chamber so we can continue debate shortly and finish our
business.
RETURNS: At 7:57 pm, Sen. Travaglini called the convention
to order and ordered a quorum count. A STANDING VOTE OF 102 DETERMINED THE
PRESENCE OF A QUORUM
Sen. Baddour offered an amendment. COMPROMISE AMENDMENT: The
amendment, sponsored by Mr. Finneran and Mr. Travaglini, Mr. Lees, Mr.
O'Flaherty, Mr. Rogers says: “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 Massachusetts.
Two persons of the same sex shall have the right to form a civil union if they
meet the requirements set forth by law. Civil Unions for same sex couples are
established hereunder and shall provide entirely the same benefits,
protections, rights and responsibilities that are afforded to couples married
under Massachusetts law. 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.”
