The Massachusetts Senate gave its initial approval to a bill designed to test the legality of the Vietnam war by an overwhelming 33-6 vote last night.

The bill must still pass two more tests before it becomes law. There will be a final vote in the Senate later in the week, and then the bill will return to the House for concurrence on Senate amendments.

The major obstacle to the bill lies not in the Massachusetts Legislature, however, but in the courts.

If passed, the bill will provide that no inhabitant of Massachusetts be required to serve in overseas hostilities except in emergency or under a Congressional declaration of war.

Test Case

The bill also stipulates that the state attorney general bring suit against the federal government on behalf of any state resident ordered overseas.

The federal courts will have to pass on the legitimacy of the bill in a test case. If the courts rule in favor of the defendant's refusal to fight in the Vietnam war, it will set a legal precedent.

Other state legislatures will have the option of drafting similar bills, and residents of those states would have the legal right to refuse to fight in undeclared wars.

Followed House Approval

The Senate's approval followed a 136?? vote in the House last week supporting the bill, which was sponsored by Rep. James Shea (D-Newton).

The bill survived the Senate virtually unchanged ?? its House-approved version. The Senate discarded a House amendment requiring the opinion of the state Supreme Court before proceeding with the federal suit.