Granting Relief in Marriage Scandal Would Create More Trust in Courts, SJC Is Advised

Many Believe SJC Is Merely Protecting Gay Marriage

MassNews Staff
March 13, 2003

The Supreme Judicial Court was told yesterday that if it decides to grant relief in last year's scandal where the Legislature refused to vote on the Protection of Marriage Amendment, this will "go a long way toward creating more trust in the Massachusetts courts."

The court was told this in a brief from the attorney for Mass. Citizens for Marriage, J. Edward Pawlick, in his appeal from a decision of Justice John Greaney in a Single Justice Session on Feb. 25, 2003.

A hearing is expected to be scheduled before all seven judges sometime in May, with a decision shortly thereafter.

The brief commented on the Goodrich case in which the court is deciding whether it should mandate gay marriage in the state.

"Many have already decided what the Court will hold," Pawlick told the Court. "They know that the Protection of Marriage amendment would not permit homosexual marriage and they counsel us that that is why we will never win in this Court. But the plaintiff points out to them and to those on the national scene that she has not seen unfairness in the legal actions she has observed in the last few years, despite the political beliefs of the judges, the Attorney General and the Secretary of State. She is still optimistic about the integrity of most of our people."

The brief noted that Justice Greaney said last fall that many citizens believe that "judges are nothing more than politicians in black robes," and the law is "a mass of unpredictable outrageous decisions."

Pawlick also noted that a Special Committee reported to Chief Justice Marshall last week that a crisis exists in the courts because the system is "mired in confusion."

"It's no surprise that most citizens believe you will do nothing to correct the scandal which is the subject of this suit," Pawlick wrote. "However, this plaintiff has always remained positive and, for some reason, still believes that you will not abdicate your duty. A strong statement of leadership will help in many ways."

The attorney cautioned that if this court does not act, he will be obligated to ask the federal courts for help because it would be obvious to everyone at that point that our democracy has failed in Massachusetts.

"If you allow the Legislature and the Governor to violate the state Constitution in an attempt to kill this initiative," he wrote, "then we no longer have a 'republican form of government' as guaranteed by Art. IV, sect. 4 of the U.S. Constitution. The plaintiffs will be obligated, in order to be faithful to the 60% of the citizens who favor the Amendment, to appeal to the federal courts.

"In addition, the First Amendment rights of those Legislators who were not allowed to debate the issue on the floor of the State House will have been violated. Other violations of constitutional rights also exist.

"The right to petition the government for redress of grievances is among the most precious of liberties safeguarded by the Bill of Rights. It is fundamental to the very idea of the republican form of government.

"Although they have no desire to do so, the plaintiffs would also be obligated to seek damages through the federal courts. This will cause untold lawsuits and claims for damages. The plaintiffs have spent $1.7 million in cash, in addition to untold amounts of money in volunteer efforts to date."

Justice Greaney Was 'Clearly Wrong'

"[Justice Greaney] was clearly wrong when he agreed with the attorneys for the Commonwealth that the citizens have no relief available, even though they have spent three years of their lives and over $1.7 million in furtherance of their belief that we still have a representative government in Massachusetts," Pawlick said.

"He [Justice Greaney] agreed with the Attorney General that it is okay to violate our state Constitution and other laws with impunity because there is nothing anyone can do to demand that our laws be obeyed. According to him, not even the Supreme Judicial Court can provide a remedy. The citizens do not believe that."

Atty. Pawlick continued that the Commonwealth argues that the plaintiffs should just try again.

"The attorney for the Commonwealth argues in footnote 2 of his brief to the Single Justice that the plaintiffs should just try again. 'Of course,' he said, 'plaintiffs remain free to pursue their proposed amendment by beginning the art. 48 process again this year.' He opined that they are allowed to spend another three years of their lives and $1.7 million -- only to be laughed at once more in 2005!

"Can anyone deny that if what the attorney for the Commonwealth argues is true, we have lost our republican form of government in Massachusetts?"

Plaintiffs Have Been Slurred and Libeled in Court Briefs

Pawlick wondered if the courts have been swayed by the many libelous slurs that have been mounted against the plaintiffs by the establishment press, particularly the Boston Globe and its owner, the New York Times. "Why are the opponents so afraid of an honest debate that they will violate the law to avoid it.?" he asked.

The attorney noted that everything the plaintiffs requested in their suit last year was granted in the court's advisory opinion to Gov. Swift on Dec. 20, 2002.

"The advisory of Dec. 20 accomplished everything that Pawlick had requested in her suit last fall. The only relief she had sought was a clear statement of the legal responsibilities of the parties in the art. 48 process. When this was accomplished in the Dec. 20 opinion, it essentially made her suit moot.

"But the Boston Globe has never reported it that way. It's been very difficult and very expensive for MCM to compete with the power of the Globe in informing the citizens about the truth. The opponents thought it couldn't be done. That's why they were so bold as to keep violating the law and challenging the Supreme Judicial Court, even in December. The Globe reported the Dec. 20 advisory opinion to the Governor with this headline, 'SJC declines to weigh in on gay marriage ballot debate.' The message that everyone in New England has received is that this Court vindicated Sen. Birmingham!"

The attorney was particularly angry at the "horse fraud" that was broadcast far and wide by the Globe and Times.

"The national edition of the New York Times was nasty, even libelous," he wrote. "No one has reported that the paid signature gatherers became necessary only because the ACLU was training blockers, who would harass the voters and violate their Constitutional right to vote, at every major mall throughout the state. When the decision was made to hire professionals because of concerns for the safety of the volunteers, they hired a reputable organization, which was already in the state working for the horse people and Carla Howell. After all the expense, publicity and their lawsuit, the opponents have reported the names of only 13 people who say they were tricked out of a total of 76,607 people who were certified, despite the fact the opponents have spent a lot of money with mailings, etc. ever since Nov. 2001.

"No citizen should ever be treated as Pawlick and the other supporters of this initiative have been. It goes beyond the pale to be libeled in a brief in this Court without an opportunity to respond. We cannot begin to recount this sad commentary on our society in one tiny memorandum. The 'horse' trick by itself would cover hours of explanation."

Why do Opponents Fear an Honest Debate?

Why are the opponents so afraid of an honest debate that they violate the law to avoid it? Pawlick asked, and added that it is necessary to ask this question because the plaintiffs and the other supporters of the amendment are constantly smeared, even in the courts of the state.

"Two briefs were filed in this Court during Dec. 2002 that illustrate this. The briefs were a response to the requests from Gov. Swift and the Senate for advisory opinions. One brief came from the erudite GLAD [Gay & Lesbian Advocates & Defenders], which always walks the high road and has scholarly people writing their material with an estimated budget of $1 million a year.

"The other was from MassEquality.org., a coalition formed by GLAD and others for the sole purpose of defeating the amendment. It is an integral part of GLAD's team with a different name and agenda. It credits the Human Rights Campaign for its funding. Its brief, written by a member of the City of Boston Law Department, David J. Breen, attacked the amendment and those involved with it.

"On page one he began, 'We are familiar with the substance of H.4840 [the amendment] as well as the signature gathering and lobbying undertaken in connection with H4840.' It then devoted more than 5-pages of an 18-page brief to 'possible fraud in the signature gathering process.' This brief, which is now on file in the Supreme Judicial Court for eternity, has many pages in the Exhibit section about the 'fraud.'

"The plaintiff has no idea who in this Court has read about her 'fraud,' but it has to bother her. Who has been exposed to this smear of her?

"The truth is that there was no fraud except on the part of the opponents of the amendment, who are also responsible for the brief that resides in the files somewhere in this Court. This type of unfair tactics has influenced even the Court. Although the members of the Court undoubtedly do not realize it, the citizens are greatly upset as they begin to understand what is happening.

"They know that the Chief of the Superior Court, Suzanne DelVecchio, went to an annual meeting of the political organization, the Massachusetts Lesbian and Gay Bar Association, and told them they should be working harder for homosexual marriage, even though such a case would be decided in her court. What has she been told to cause her to act in this manner?

"When Brian Camenker and Scott Whiteman blew the whistle about the Fistgate scandal, where public schools and state employees taught teenagers how to play with the sexual organs of other students, Judge Allan van Gestel of the Superior Court didn't punish the perpetrators for contributing to the delinquency of minors. He punished the whistleblowers!

"Those men are now in their third year of protecting themselves from a lawsuit from the five lawyers at GLAD. Judge van Gestel was so solicitous of GLAD that he embarrassed himself and our courts nationwide by putting a gag order on the press. This blatant violation of the First Amendment aroused the national media and others (not the Globe), especially Fox News and Nat Hentoff. They became upset, along with civil libertarians like Alan Dershowitz and Laurence Tribe. Why did Judge van Gestel act in this manner?

"Why are the citizens upset and becoming more so? A poll of 600 voters in 2000 asked if they approved encouraging teenagers to be sexually active. A surprising 92% did not approve. Of the 47% of the sample who were liberal, 91% did not approve. The vast majority of citizens do not approve of encouraging teenagers to titillate the sexual organs of other teenagers, whether it be "heterosexual" or "homosexual" titillation.

"But, if a citizen is so bold as to question this in public, he is termed a 'hater,' 'bigot' or worse.

Portion of Truth Revealed

Atty. Pawlick continued: "The homosexual newspaper, Bay Windows, revealed a portion of the truth in an editorial in its Aug. 22, 2002 paper, which was probably written about Aug. 19. Our suit was filed on Aug. 16. Their Aug. 29 edition had a much more balanced story.

"The celebratory Editorial on Aug. 22 was ecstatic about the 'victory' over the amendment. But when the editors heard about our lawsuit, they pulled the editorial from their website. (Of course, it remained in the print edition). They finally realized about a month later that this did not make them look good either, and the Editorial was restored to the site.

"Why were they concerned about their Aug. 22 Editorial? What could it say that would cause this behavior? It reported that the average homosexual was not interested in the marriage matter. It was like pulling teeth to get them to contribute to the effort, one activist reported.

"It stated that those who were the real opponents of the amendment were powerful, national forces, particularly the feminists, including NOW, ACLU, AFL-CIO (they do not publicize this among the union members) and the Anti-Defamation League. Although not specifically mentioned, the New York Times Company and its Boston Globe were an important player and the foremost enemy of the amendment.

The lawyer said that the plaintiff told the press at the time, "This [editorial] confirms what we have been saying. This is not primarily about homosexuality. It's about a powerful, extreme liberal agenda to change our sexual morality. These liberals are seeking a socialist state similar to Sweden or Cuba, with a free-love society in which children are the responsibility of the state, not their parents.

"That's why the national, liberal organizations are so interested in what is happening in Massachusetts. They are hiding behind homosexuals and others to achieve their political objective.

"They wish to diminish the institution of marriage which has been the bedrock of our country since its founding. When the state was first founded, everyone knew what 'marriage' meant, so it was never written down. But now it's obvious to everybody that we must do so.

"There is nothing wrong with the extremists pushing their agenda as long as it is not sneaky or libelous. It's well known that the extreme feminists, such as those at NOW, believe that the institution of marriage is deleterious to women and should be weakened or abandoned."