What Should We Do Now About Marriage?
Should We Just Ignore Margaret
Some legislators on Beacon Hill
are going to ignore Margaret Marshall.
After all, she had no authority to make the ruling
she did. In addition, the legislature still remembers what happened
to the Democratic Party, Tom Birmingham and Shannon O'Brien, after
they attacked the Protection of Marriage Amendment in 2002. As a
result, we installed a Republican governor.
This is a volatile issue. Any politician who doesn't
understand that is going to be relegated to the dustbin. Over 60%
of the citizens do not want gay marriage and that includes domestic
partnerships and civil unions, which are just a prelude to gay marriage.
That puts the politicians between a rock and a hard place.
Why stick their necks out? Better to just stay quiet
and see what happens. Then no one can blame them. They believe that
Margaret Marshall started this battle by overstepping her authority.
Why shouldn't she take the flack? Don't forget that three of her
own judges voted against her. This means, since it was a 4-3 decision,
a switch of the vote by one judge could have avoided this entire
affair. Are one person's feelings enough to change the basic structure
of our entire society?
The three dissenters said:
-- "[T]he case stands as an aberration. To reach the result
it does, the court has tortured the rational basis test beyond recognition."
Justice Martha B. Sosman.
-- "Whether the court is correct in its assumption is irrelevant.
What is relevant is that such predicting is not the business of
Justice Robert J. Cordy.
-- "Today, the court has transformed its role as protector
of individual rights into the role of creator of rights, and I respectfully
Justice Francis X. Spina.
Those are not rightwing kooks; they are Justices
on the Massachusetts Supreme Judicial Court. If our legislators
believe that Marshall did not have the power to rule as she did,
they are in excellent company.
It's distressing that out-of-state pundits are castigating
our entire SJC. They must not have bothered to read the opinions.
The Massachusetts judges did better than the U.S. Supreme Court
did last summer with its 6-3 decision about sodomy. My wife, Sally
Pawlick, who is President of Massachusetts Citizens for Marriage,
has never wavered in her belief that this court will end up supporting
marriage. She was almost right in November. Who knows what will
happen between now and May?
What, in a Nutshell, Did Marshall Order?
Marshall said she was sending the case back to the
trial judge for "entry of judgment consistent with this opinion."
Her judgment will be "stayed for 180 days" to permit the
Legislature to take such action "as it may deem appropriate
in light of this opinion."
If my math is correct, that means the Legislature
has until about May 6, 2004 to announce its decision. Why rush?
Who knows what will happen by then? What do we owe this native of
South Africa who lectures us, saying that our country has discriminated
against homosexuals since its founding? The only case she could
find to give any support for what she did was from another country.
The court was the Court of Appeals for the province of Ontario in
Canada. It is virtually unheard of for a judge to rely upon a decision
from another country. The United States is not very special to Margaret
Marshall, who looks to Canada for guidance.
Mass. Trial Judge Had Dismissed the Suit
The judge in the Massachusetts Superior Court, Thomas
E. Connolly, had dismissed the suit. That is why the seven homosexual
couples appealed to the SJC and Margaret Marshall.
According to Justice Marshall, Judge Connolly had
ruled incorrectly that the "Legislature may rationally limit
marriage to opposite-sex couples
If the legislature does nothing else except to independently
begin the process of sending the matter to the people for their
vote in a referendum, that will take the burden off them. The legislature
will have taken the "action" that they deemed "appropriate"
under the terms of Marshall's Order. They are not required to do
(However, there will probably be at least two competing
Amendments presented to the Legislature and we must be careful which
one we support, if either.)
If absolutely nothing happens, the matter will then
automatically go back to Judge Connolly in May for him to make a
judgment "consistent" with Marshall's opinion.
Of course, if Connolly takes the case under his control
as instructed, Atty. Mary Bonauto will run back to her friend, Justice
Marshall, and ask that she take the case back and impose gay marriage.
That would be highly improper because Judge Connolly should first
have an opportunity to make the judgment as Marshall requested,
even though Marshall obviously contemplated that the Legislature
would mandate gay marriage, civil unions or domestic partnerships.
Connolly Is the Trial Judge
After all, Connolly is the trial judge. In light
of his previous ruling, he would, at most, not impose gay marriage
but would impose some type of benefits for homosexuals. It appears
that he could take testimony from many people. He could have many
persons publicly discuss the matter, instead of in private, "smoke-filled
rooms" as Marshall did. The only public discussion of the matter
that Marshall allowed to take place before her was of the two lawyers
to whom she gave a total of 30 minutes. She and Justice Greaney
kept interrupting the lawyer for the state, Judith Yogman, so much
that she never had a chance in her fifteen minutes to tell what
she wanted to say.
Although Justice Marshall totally avoided the U.S.
Constitution in her opinion, Judge Connolly could hear testimony
as to whether it is possible to accomplish what Marshall wants without
violating the federal Constitution. We cannot ignore the U.S. Constitution
even though that is what Margaret Marshall would like to do. There
is a good reason Marshall avoided that subject. What she is urging
is to give special treatment to one group which wants the benefits
that are now given only to married people. While there is a "rational
basis" for giving benefits only to married people (as Judge
Connolly and the three dissenters stated); there's no "rational
basis" for enlarging that group to include only one more group,
homosexuals, when there are so many others also clamoring to enter
the institution of marriage.
If Mary Bonauto doesn't like Connolly's final decision,
that is when she should appeal to her friend, not before. Bonauto
knew years ago how Marshall would vote, even if nothing explicit
was ever said, in that the Chief Justice was frequently at meetings
of gay organizations and other places where Bonauto was honored.
It appears as though those who wish to ignore Marshall
are correct. Any support for what she did is razor-thin. It lies
mainly at the Boston Globe and other parts of Pinch Sulzberger's
empire at the New York Times. However, Pinch is in serious trouble
with his family over the Jayson Blair scandal and probably won't
have the ability to continue his obsession with homosexuality. His
father, who Pinch describes as a homophobe, may finally remove him
from the Times, give him a spanking and put that organization back
One of the judges who voted with Marshall may change
his or her mind and join the dissenting judges the next time around.
Anyone Who Thinks I am Unfair to Marshall Should
Any reader who thinks I am being unfairly harsh with
Judge Marshall should remember that she told the judges of Australia
in August 2002 (while she was merely a guest lecturer at a continuing
series at the University of Sydney) that they should tolerate more
criticism of themselves. She also said at that lecture that she
invites scrutiny of herself.
"The American public's trust," she
said, speaking as the native of one Commonwealth country to the
citizens of another, "is the product of our citizens' nearly
unbounded right to peer into every nook and cranny of the administration
of justice, and to voice their opinions, in any timbre, about what
Turning to the Australian courts, Justice Marshall
said that they "can, and should, tolerate a great deal more
criticism of judges and of the judiciary."
A perusal of Australian newspapers indicates no reaction
to her speech. Apparently, the judges and lawyers of that country
just ignored her unsolicited comments. But I am taking my "unbounded
right" to express my opinion of her decision about marriage.
A Lot Will Happen in the Next Six Months
No one knows what the next six months will bring.
We should move slowly and see.