Ethics Complaint Could Remove Marshall from Gay Marriage Cases

April 2003 Print Edition

An Ethics Complaint to remove Margaret Marshall from the two cases about homo-sexual marriage has been filed with the Commission on Judicial Conduct because of the judge's close friendship and association with Atty. Mary Bonauto and other interested parties.

One of the two cases is the Goodridge suit where seven homosexual couples are seeking a marriage license. The other is the lawsuit that Pawlick brought on Jan. 2 to ask the SJC to send the Protection of Marriage Amendment to the new Legislature. The old session violated the Constitution and never voted on the measure.

The Goodridge decision could come at any moment and the other is expected to be argued before the full Court in May. If the Protection of Marriage Amendment were to be become law it would prevent the SJC from imposing homosexual marriage on the state.

Full Text of Complaint Filed March 21, 2003

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COMMONWEALTH OF MASSACHUSETTS
COMMISSION ON JUDICIAL CONDUCT

COMPLAINT IN RE: MARGARET H. MARSHALL

Margaret H. Marshall was appointed an Associate Justice of the Supreme Judicial Court in November 1996. She was appointed Chief Justice of the Supreme Judicial Court in September 1999 and began her term on October 14, 1999.

Canon 3C of SJC Rule 3:09, Code of Conduct states: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned …"

BACKGROUND
Both Counts involve three lawsuits, two of which are currently before Chief Justice Marshall. She has taken a prominent role in each of them although she should have recused herself in each one.

1) Pawlick v. Birmingham, No. SJC-08879. Filed on August 16, 2002. Dismissed by SJC on December 30, 2000 for lack of standing.

This was the first suit filed by Pawlick, on August 16, 2002. It sought relief when the Legislature violated the state Constitution by adjourning without a vote on the Protection of Marriage Amendment as required under article 48. That Amendment is sponsored by Massachusetts Citizens for Marriage, of which Pawlick has been President since its founding. The only relief requested in the suit was a statement of the duties of the Governor and the Legislature when the solons adjourned without a vote. On the same day that the Court held oral argument in the case, December 3, 2002, Governor Swift asked the SJC for an advisory opinion about her responsibilities in the matter, the same relief that Pawlick had requested in her lawsuit. The Court did everything that had been requested in Pawlick's Complaint when the Court replied to the Governor on December 20 that the Legislature had not complied with the law and a vote was required before the end of the year. Despite that notice, neither the Governor nor the Legislature took any action. The session of the Legislature expired without a vote. On December 30, the SJC dismissed Pawlick's suit even though it had granted what she had requested. It said that she did not have standing to sue.

2) Massachusetts Citizens for Marriage and Sarah McVay Pawlick v. Secretary, No. SJC 08966. Filed on January 2, 2003. Parties are waiting for a date for Oral Argument before the full Court, including Chief Justice Marshall.

This was the second suit filed by Sarah McVay Pawlick in this matter. After the Legislature ended on December 31, 2002 without a vote, Pawlick filed this action against the Secretary on January 3, 2003, requesting the Court to order him to send the Amendment to the new Legislature because the previous Legislature had not performed its right, nor its duty, to vote on the Amendment as required by art. 48. The Attorney General's "Motion to Dismiss" was granted on Friday, February 28, 2003, by Single Justice John Greaney without comment. An immediate appeal was taken on Monday, March 3. Pawlick's attorney has filed a brief with the Court and the parties are waiting for an argument date.

3) Goodridge v. Dept. of Public Health, No. SJC 08860. Filed on April 11, 2001. Court has case under advisement and an opinion is imminent.

This suit was filed by seven homosexual couples seeking the right to a marriage license, which they say is not proscribed by the statutes of Massachusetts. They say, however, that if it is held that the law does proscribe the granting of a marriage license to homosexuals, then it violates the state Constitution. The suit was dismissed by the trial judge in the Superior Court, who said that this should be decided by the Legislature, not the courts. Oral argument by the SJC was held on March 3, 2003. A decision by the SJC is imminent. If the Court grants the relief requested by Pawlick in the case immediately above in paragraph 2 and the new Legislature and the voters approve it, the Court would be unable to impose gay marriage on the state as requested in Goodridge.

COUNT #1
1. On October 5, 2000, Margaret H. Marshall, attended, as an honored guest where 1,600 people saw her, the Annual Gala of the Women's Bar Association, a partisan political organization which lobbies in the courts and in the Legislature "on the basis of sex."

2. At that Gala, the featured speaker was the former Press Secretary for Bill Clinton, Dee Dee Myers, who told the crowd to resounding cheers that Al Gore would win by a large margin and to even louder cheers that Hillary Clinton would win in New York. Myers warmly acknowledged Marshall and noted that both of them were married to the New York Times, because they both had husbands who, at that time, worked there.

3. At that political event, a lawyer was honored, Mary Bonauto, who is employed by the homosexual law firm, GLAD. Bonauto had cases pending in the Massachusetts courts at that time, including one where she had sued Brian Camenker and Scott Whiteman for revealing the so-called Fistgate scandal in June 2000, wherein students were taught homosexual sex techniques. That case is still pending in the Massachusetts courts.

4. In addition, Bonauto is now involved in two cases over which Marshall is presently presiding at the Supreme Judicial Court. In both cases, the issue of gay marriage is at the heart of the case. In one case, Goodridge et al v. Dept. of Public Health No. SJC 08860, she is the attorney for the plaintiffs. In the other, Massachusetts Citizens for Marriage and Sarah McVay Pawlick v. Secretary of the Commonwealth No. SJC 08966, the decision of the Court will have a profound effect on the Goodridge case. Inasmuch as Justice Marshall is presiding at both cases, her impartiality would be questioned by any reasonable person in both of those cases.

COUNT #2
1. In May 1999, Marshall was the honored guest and keynote speaker at the political, Massachusetts Lesbian and Gay Bar Association. That organization reported in its newsletter that Marshall, who was born in South Africa and moved here to attend college, noted "with pride" that her native land was the first country to write sexual orientation protections into the national Constitution. In 1998, South Africa's courts struck down laws banning sodomy between consenting adults. According to MLGBA, "Marshall read excerpts from the stirring decision. The Justice encouraged those lawyers in attendance to pay attention to the growing body of gay-friendly international jurisprudence."
2. The MLGBA is one of the primary supporters and activist groups in the Goodridge case.

3. Marshall is presently presiding at the Supreme Judicial Court in two cases: Goodridge et al v. Dept. of Public Health No. SJC 08860 and Massachusetts Citizens for Marriage and Sarah McVay Pawlick v. Secretary No. SJC 08966, both of which involve whether or not the SJC should mandate gay marriage. Her impartiality would be questioned by any reasonable person in that the Massachusetts Lesbian and Gay Bar Association, to whom she spoke, is one of the principal supporters of gay marriage.

Respectfully submitted, Sarah McVay Pawlick, Complainant.

By Her Attorney,

J. Edward Pawlick
BBO No. 392160