If Andrew Sullivan really cared about torture, he would return from his vacation to blast the Massachusetts Supreme Judicial Court for its repeated virtual water-boarding of the law.

Earlier in 2006, over 120,000 Massachusetts citizens signed a petition to include in the state’s Constitution the following words, “When recognizing marriages entered into after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman.” The initial steps in amending the Massachusetts State Constitution are simple enough: If an adequate number of citizens signs an initiative petition suggesting a change in the Constitution, the state’s legislators must hold a joint session and vote “yea” or “nay” on the proposed amendment. A yea vote sends the measure to the people in the form of a referendum question. A nay vote kills it.

The Definition of Marriage Amendment didn’t get a “yea or nay” vote, even though the petition had more than enough signatures. When Governor Mitt Romney called the legislators to session to vote on the Amendment, they promptly voted to disband by a 109-87 margin. They did not consider the proposed amendment as they were constitutionally required to. At outgoing Governor Romney’s command, the legislators will convene a joint session one last time on January 2.

After the legislators’ initial flaunting of its constitutional obligations, several aggrieved citizens, led by Governor Romney, petitioned the Massachusetts Supreme Judicial Court for relief. Unless the SJC took action and ordered the legislators to follow their constitutional obligation on January 2, there would be nothing to prevent the legislators from once again following the same cowardly tack of dismissing the convention rather than voting on the proposed amendment.

Today, the SJC seized the stage, ruling on the case brought by Romney and friends regarding whether or not the legislators had to vote on the Amendment. Happily, the SJC saw that there was no doubt that the legislators are constitutionally obliged to vote “yea” or “nay” on the proposed amendment on January 2.

Enough has now been said about the requirement to vote on the merits to place the proposition beyond serious debate. Even counsel conceded at oral argument that it would have been inconceivable to the drafters that the Legislature would refuse to comply with its obligation to vote on a pending amendment that had been introduced by the initiative process. Yet, that is precisely what could happen on January 2, 2007, should a majority of the members of the joint session vote to recess without first taking a roll call vote on the merits of the initiative amendment.

So you would think that the SJC would order the legislators to follow their Constitutional duty on January 2. Au contraire, my naïve friend. While the SJC is notorious for overreaching when doing so produces policies that it likes (e.g., gay marriage), it is rather more circumspect about wielding its power when a policy less to its liking (e.g., something that harms gay marriage) may result.

The SJC frankly admitted that the plaintiffs who petitioned the SJC were completely right, but it still declined to order the legislators to actually obey the state constitution as the SJC itself unanimously interpreted it. Instead, the SJC ruled that past case law articulated no judicial relief for such a matter. Without an easily available remedy at hand, the SJC limited itself to urging the legislators to uphold the constitution, and the voters to consider redressing the legislators at the ballot-box if they fail to do so. Cue the laugh track in my little one-party home state.

SO WHAT’S THE TAKE AWAY FROM ALL OF THIS? For one thing, Mitt Romney wins this round. Sorry Romney critics, but it’s true. Even the notoriously liberal Massachusetts Supreme Judicial Court concedes that the law is on Romney’s side, and that the Massachusetts legislators will be a bunch of scofflaws come January 2 unless they receive collective testicular implant surgery between now and then. Even people like me who have no problem with gay marriage recognize that Romney has fought the good fight in trying to constrain runaway judicial activism. To say his record compares favorably in this regard to Senator “Gang of 14” McCain’s is an understatement.

As for the Massachusetts legislature, they come out smelling worse than ever, and that’s saying something. The Commonwealth’s gay marriage proponents in the legislature either lack the political courage to identify themselves as such or have such a dim regard for constitutional democracy that they think the constitution doesn’t bind them. Actually, it’s probably both.

BUT THE REAL VILLAIN of the piece is the Massachusetts Supreme Judicial Court. That’s not because its decision today is necessarily wrong; according to my decidedly inexpert it is, but I’m always charmed by a Court decision that acknowledges the limits of the deciding Court’s power.

But the real problem is this: With decisions like the gay marriage one, the SJC made the rule of law a relic of the past. When given the opportunity, the SJC has consistently behaved as a super-legislature, entirely unanswerable to the constitution, precedent, the electorate or its co-equal branches of government. Is it much of a surprise that given the opportunity to try out that same self-gratifying form of behavior, one of those co-equal branches of government has leapt at the opportunity to do so?

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