The future of gay marriage in Massachusetts is in jeopardy.

The procedural maneuvers over this issue are so confusing. You might have read today that the Supreme Judicial Court of Massachusetts – the state’s highest court, which ruled in favor of gay marriage in the Goodridge decision in 2003 – unanimously ruled this morning that a initiative petition to amend the Massachusetts constitution to ban gay marriage can go forward. (The lawsuit involved a procedural issue, and unfortunately I agree with the judges’ interpretation.) I was confused when I read about this, because I thought the process to amend the constitution to ban gay marriage had already been tried and failed. This timeline clears things up.

1) In November 2003, the court ruled that the state’s ban on same-sex marriage was unconstitutional.

2) In February 2004, in an attempt to overrule the court, the state legislature began attempting to amend the state constitution to ban gay marriage. To pass, the amendment needed to win a majority vote by two consecutive legislatures and then win the popular vote. In the first legislature, the amendment passed by 105-92, but in the next legislature (September 2005), it was defeated, 157-39. So it never went to a popular vote.

3) In the meantime, a new attempt to amend the state constitution was begun by the Massachusetts Family Institute, this time by ballot initiative. This is a multi-step process:

First, a certain number of signatures must be gathered. The MFI achieved this in December 2005.

Second – which is where we are now – two consecutive legislatures must vote. (The court ruled today that the vote can go forward.) But to approve a ballot initiative, majority votes aren’t needed in the legislature; just 25 percent of the legislature – 50 out of 200 legislators – needs to approve it! As of two months ago, people on both sides agreed that the measure seems to have at least 50 votes. But a coalition of 165 business leaders recently put an ad in the Boston Globe opposing the amendment. The first of the legislative votes occurs Wednesday; if it gets at least 50 votes, the next legislature votes in 2007. If that legislature approves the measure (again, only 50 votes needed), it goes onto the next step.

That next step is that the measure goes on the ballot in 2008 for a popular vote. If it passes the popular vote (by a simple majority), Goodridge is history and gay marriage in Massachusetts gets banned.

Strangely, though, in today’s court decision, two concurring justices suggested that such a constitutional amendment, if ratified, might conflict with the constitution as it now stands, under which a ban on gay marriage is unconstitutional. That really doesn’t make sense to me; Eugene Volokh explores that particular issue.