Who will lead in Massachusetts?

Today, the Massachusetts Supreme Judicial Court ruled 4-3 that the state's ban on gay marriage is unconstitutional and gave the legislature 180 days to comply with the ruling. Will the ruling lead to an anti-gay backlash and national election disaster for the Democrats, or will it ultimately advance the cause of civil rights in a way everyone can accept? I argue that it all comes down to leadership.

Nathan Newman thinks it's a setback for gay rights because of historical trends of backlash against judicial activism in gay rights, abortion, and civil rights. The danger of a backlash against gay rights is clear, but I think the experience of Vermont shows that this can be overcome.

Immediately following the Vermont Supreme Court's decision, then-Governor Howard Dean announced he'd support a domestic partnership solution. The Vermont Legislature passed the civil unions bill, and while Dean signed it in a private ceremony, he defended the bill on the campaign trail and won re-election. Today, civil unions in Vermont are a fact of life, and supported by a majority of Vermonters.

However, in Mass. Republican Governor Mitt Romney is ardently opposed to gay marriage or any civil union-like compromise and says he'll work against them: "Marriage is a relationship between a man and a women. The exact equivalent to marriage is also reserved to a man and a woman. Over the next several months, I will work with legislative leadership and other legislators and community leaders to decide what kind of statute we can fashion, which is consistent with the law. We obviously have to follow the law as provided by the SJC. Even if we don't agree with it, we are going to follow it in terms of preparing legislation. We will initiate a constitution amendment process that will be consistent with what I think the feelings are of the people of the commonwealth."

There are other differences from the Vermont case. The Massachusetts SJC was closely divided in it's ruling, while in Vermont the decision was 4-1 -- with the dissenter arguing for full marriage rights. And no one is really sure how much latitude the Massachusetts Legislature has to implement a solution, whereas the Vermont Supreme Court left everything up to the Legislature.

I can see this ending badly. Because of the difficulty of amending the Massachusetts constitution, there is no way gay marriage opponents will be able to amend the constitution until at least 2006. Meanwhile, thousands of marriage licenses will be issued to gay and lesbian couples. So, what is Gov. Romney going to do? Romney and his allies may decide to sabotage legislative efforts to create civil unions or amend current law to comply with the ruling. Then, after the 180 days are up, they can blame the Supreme Judicial Court for forcing divisive "gay marriage" on the people of the state. Romney and his allies could attempt to create an anti-gay backlash and run against the ruling for the next two years (including during the 2004 presidential election). Indeed, the Republicans plan to make opposition to gay marriage a cornerstone of their national strategy. (Whether this will ensure Republican victory or turn off gay-friendly swing voters is another matter.)

I disagree with Nathan Newman that the courts shouldn't overturn unjust laws. But I agree that this decision could set back gay rights. Massachusetts needs a leader who will fight for civil unions or gay marriage legislation, and then, just as importantly, lead the healing that will be necessary to sooth the wounds of what will surely be an explosive 180 days. This will ensure that gay rights move forward and help to neutralize anti-gay rhetoric in the upcoming election. In Vermont, Howard Dean filled that role admirably. But Mitt Romney is not that leader. Who will step up?