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by J. Edward Pawlick

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What Should We Do Now About Marriage?

Should We Just Ignore Margaret Marshall?
By Attorney J. Edward Pawlick
December 9, 2003

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 the courts."
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 dissent."
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 anything more.

(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 on track.

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 Consider This

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 they find."

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.

 

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