Marriage & 'Gay Marriage' - Where Are the Courts Taking Us?

2nd in Series:
We Won the 'Protection of Marriage Amendment': Who Took It Away?

From the Massachusetts Lawyer with First-Hand Knowledge

Sidebar: Margaret Marshall Knows an Ethics Complaint Has Been Filed Against Her

The battle to change marriage is led by Margaret Marshall (front row) and John Greaney (seated at far right). Other Justices are Francis X. Spina (seated at left), Roderick L. Ireland (seated second from left), Judith A. Cowin (standing left), Robert J. Cordy (center) and Martha B. Sosman (standing right).

This is the 2nd in a series, which examines the enormous effort spent by Mass. Citizens for Marriage and MassNews on the 'Protection of Marriage Amendment.'

Has it done any good?

An historic confrontation occurred on May 9, 2003, when the Justices heard arguments in the lawsuit that was filed by Atty. J. Edward Pawlick on January 2, 2003 - after Senate President Thomas Birmingham and Gov. Swift broke the law in an attempt to defeat the successful Protection of Marriage Amendment, which would have codified the definition of marriage as it has always been: one-man-and-one-woman, in order to protect mothers and their children.

Story #1 - SJC Judges Warned Not to Follow Disastrous Route of Sen. Birmingham and Shannon O'Brien and Impose Gay Marriage

Report to 130,000 Citizens Who Signed the Marriage Amendment
What's It Like to Tell Six Judges of the Supreme Court that They Are Breaking the Law?

How does it feel to finally tell the judges of the Mass. Supreme Court -- in person -- how they're doing?

There are thousands of citizens who would love to do that, but it's really a sad event -- as I told the judges earlier this month.

It's sad to watch this group of black-robed lawyers sit there like a bunch of owls on a tree limb, expressionless.

Do they have thoughts or beliefs? Never in all my years as a lawyer, have I seen such withdrawn people.

Who are the males who sit on that Court? Are they a new breed of man? It's obvious, as I sat there and watched the other cases that were heard before us, that the women are dominant. They are the thinkers and the leaders, with Martha Sosman being the most inquisitive and independent; Judith Cowin also was involved in the cases; Chief Margaret Marshall rules the roost without question.

It was the fourth time I stood in that courtroom since last October. (Two of those times I stood before a single Justice and two times before all the judges. It's obvious that not one of them ever read any of the briefs that were prepared for them.)

In the first three encounters, I believed they would converse intelligently with me and have some spirited discussion. But that was not to be (with the possible exception of Judge Greaney in the Single Justice session).

The attorney for MCM, J. Edward Pawlick, told SJC Justice John Greaney on Februaury 25th that there has to be a remedy when the Legislature violates the state Constitution and then ignores a ruling from the SJC. Pawlick said that his proposal of moving the Marriage Amendment to the new Legislature is the best idea he has thought of, but if the Court has a better solution, that would be fine. Justice Greaney dismissed the lawsuit without comment on February 28th and an appeal was heard by the remaining judges on May 9. We are awaiting their decision.

It's clear that Margaret Marshall is an agent of the New York Times Company.

(That Company owns both the New York Times newspaper and the Boston Globe. That does not mean that they tell her what to do. They are not that crass. They knew when they orchestrated her appointment to the SJC that they both have the same goals. They work together as a team to accomplish them. Her husband is the well-known, extremely liberal columnist at the Times, Anthony Lewis. One of their goals is to have Margaret Marshall appointed to the United States Supreme Court.)

But how about the other judges? What causes them to prejudge a case before they have heard it, with their decision a foregone conclusion?

Justice Greaney indicated his surprise to me in February 2003 (when he was the Single Justice) that Jane Swift hadn't followed through on her duty under the Constitution.

I didn't feel I should tell the Judge the whole story, (it was clearly below his dignity to ask a question like that), but I will reveal now why Jane Swift suddenly asked the SJC for an opinion. Here's the question from Judge Greaney and my reply:

"If you want my opinion, she obviously didn't want this to happen [she was afraid to recall the Legislature because the Globe and other political allies were pressuring her not to do so,] and she felt goaded into it by our lawsuit. For some reason, she made a mistake. She shouldn't have asked you for an opinion and everything might have rolled right over [and she would have gotten off the hook]. Why she did it, I don't know, but I'm very glad she did."

"Well, she could have done it much earlier, couldn't she?" [The judges had indicated their displeasure with her in a footnote in their Advisory Opinion to her of Dec. 20. They were upset when she sent her request to them at the last minute on Dec. 3 and unfairly made them work under great pressure.]

"She could have, yes. She should have done it right away. She didn't even need to do it [because everyone knew that she was required to do so under the law]. I don't know how much I should say, but we've been in constant touch with her lawyers throughout this whole thing and there is no question in my mind that they knew what the law was and they said to her what the law was. She just didn't want to follow it. . We were talking with their lawyers, they knew what the law was. They didn't need to ask you. . The law was clear and was the same as you found it. She had to call them [the Legislature] back. It [the state Constitution] said "shall." And we go back to the same word that was used in the Clean Elections case where you made short shrift of what "shall" means. It's very clear what "shall" means and they knew. The lawyers knew and she knew, she just didn't want to do it. And even after it was clear to everybody on December 20th, she still didn't do it. She just didn't want to do it."

I sent the following FedEx to Jane Swift Hunt at her home in Williamstown. It arrived the day before Thanksgiving. It must have had a profound effect because the following Tuesday, Dec. 3, she asked the SJC to tell her what she should do.

J. Edward Pawlick
Attorney at Law
Wellesley, MA 02384

November 25, 2002

Mrs. Jane Hunt
580 Henderson Road
Williamstown, MA 02167

Dear Mrs. Hunt:

This is to notify you that my client, Sarah McVay Pawlick, has authorized me to enter a suit against you in U.S. District Court for violation of her (and many others) right of free speech under the First Amendment. You have a ministerial duty under the Massachusetts Constitution, which is not discretionary or legislative, to recall the Legislature whenever they fail to act on an Amendment under Art. 48. You have failed to do so.

I note that you have already been sued by Atty. Harvey Schwartz, who is being awarded a judgment against you personally. I do not know how much insurance you have to cover you personally, but our actual damages will be in the millions of dollars, which would be tripled.

Please have your attorney contact me at his earliest convenience.

Sincerely,

/s/ J. Edward Pawlick

This letter must have been a complete shock because it was a total change from the sweet, grandfatherly letters I had sent previously. I'm sure her attorneys were telling her that she had no choice but to call the Legislature back. She didn't want to because the Boston Globe and others were cozying up to her at the end of her term, writing positive stories and undoubtedly putting pressure on her not to cave and obey the law.

She was undoubtedly hoping that the SJC would refuse to answer her request and she could just say she "tried."

There were many legitimate reasons they could have just ignored her as they did Sen. Birmingham when he filed a similar request two days after she did. Why didn't they just ignore Swift? It was the "easy way out."

It caused me, at the time, to believe that there are some at the SJC who still have some integrity, some who will do the right thing.

That was my third trip to the SJC, but I still had hope that there were people there who cared about our country and our democracy. My wife, Sally, fervently believed that they would do the right thing in the end. Were we like Don Quixote or was this more like having the faith of a mustard seed?

For whatever reason, the Governor had, in essence, requested the SJC to answer our lawsuit (which had asked the Court to explain the duties of the various parties). So the Court did explain to everyone on Dec. 20 that the Legislature had violated the law back in July and it had to take a vote before the end of the year.

But the Boston Globe reported the next day that the Supreme Court had refused to become involved. That was a total and complete lie but everyone believed it. Very few had time to read the opinion themselves, including all our friends in the Legislature.

So it was a surprise and a disappointment when Judge Greaney quickly dismissed our suit without any comment or reasons at all.

But it all became clear at the argument of the Goodridge case when Greaney told the lesbian lawyer for the plaintiffs, Mary Bonauto, that she would win that case. He knew she would win because he was personally putting the ax to our Protection of Marriage Amendment. Its passage would prevent him from imposing gay marriage on the state.

There was one break in the ranks of the SJC as Justice Robert Cordy indicated that his interest had been somewhat aroused. He was confused. He questioned the Asst. Attorney General about what's going on now before the Legislature. The A.G. responded that another proposed amendment has been added this year (by the Massachusetts Family Institute) and our Protection of Marriage Amendment is "essentially dead" because the Legislature never voted on it last year.

Those were good questions, Justice Cordy!!! That in a nutshell, is why we have appeared before you four times since last October. We can only hope that some of the other Justices heard you.

But the sad part was that the A.G. went on to completely mislead Judge Cordy. Should I have jumped up and yelled to Judge Cordy, "Stop him, your Honor! He is not telling you the truth!"

The problem is that the judges apparently do not want to know the truth. It would take an hour to explain even the basic facts to them. I couldn't do it in the seconds they would have given me.

The facts were clearly stated in my brief — if any of them really wanted to know.

The A.G. answered as most professionals lawyers would. He is not there as an impartial counsel for the Court. He is an advocate. (After all, a lawyer is a hired-gun who will do almost anything possible to help his client. He is not a judge, he is a partisan. It may even be possible that the A.G. really believes what he says. We will never know. But we would hope that some Justice on the SJC knows the answers, although we must doubt it.)

"There is not a judicial remedy."
But that's not true, Mr. A.G. Not many citizens believe that statement. If it's true that we have no remedy for a scandal such as this, then we no longer have a republican form of government in our state as guaranteed to us by Article IV, Section 4 of the U.S. Constitution.

"This Court has previously said that there [are] essentially two remedies. The Governor can call a joint session if the joint session has not performed its duty of taking a vote on a proposed initiative amendment, unless the Governor makes a judgment that such a call would be futile ."
That is essentially correct, but I could write a few very important more pages on the subject. (If anyone is interested, it's in my brief.)

"and then a second remedy which this Court identified in the Limits case is the political remedy, at the ballot box, for the voters to elect legislators who will do their duty under Article 48."
We're back again to the SJC case from 1992, known as Limits. It's been totally repudiated, but those on the other side (including the SJC) choose not to acknowledge or discuss that.

"But as the Court said in Limits, where Article 48 identified a remedy or a role for the Governor in enforcing Article 48, but did not identify any such role for the Court, that decision was intentional. The Court therefore did not grant any relief in Limits, which was a similar situation."
The first thing that anyone learns in law school is that judges should give their ruling and then, "Stop." The more they write, the more confused everyone gets. When they go beyond the point of their ruling, they are committing the sin of writing "dicta." When they do that to a great extreme, it is called, "obiter dicta." Every first-year law student knows that.

The Limits case is a classic case of "obiter dicta." That judge said that a party could not complain that the Legislature had not yet voted on an amendment when it was still only December. The Legislature had until the end of the year in order to act. They had not yet broken any law in December. They might even take a vote on December 31.

But then the judge who wrote the Limits decision turned to obiter dicta of the worst sort -- the evils of which still live with us.

After he gave the reason for his ruling, he told us about "more fundamental problems with the plaintiffs requests." This was "obiter dicta." He wrote about "separation of powers" and how the judiciary should "refrain from intruding into the power and function of another branch of government." This was totally unnecessary for his ruling and it was not even true.

The SJC fights with the Legislature all the time. Last year was one of the best examples when Clean Elections was debated. The SJC intruded mightily into the Legislature and began a huge confrontation with Speaker Finneran and the Legislature. Even Justice Sosman agreed with Finneran, dissented and wrote the following:

"[T]he court . proposes a list of possible remedies, all of which presuppose that the Legislature has acted improperly. The Legislature has acted within its constitutional prerogative in refusing to fund the clean elections law, and it is not for the judicial branch to attempt to override it."

In addition, the Court very often ignores what the Legislature has done and instructs the Secretary of the Commonwealth to do something else (as we requested them to do here). The judges are very selective about whether they will intrude. Most of them favored the Clean Elections law and would do anything to help it, even ignore the Constitution, as Justice Sosman pointed out.

I could say much more about this issue, but for any who are interested, they can find it all in the brief, as could Justice Cordy - if he would read it.

I point out that no one can claim any longer that they are confused by Limits. Whether the person making that claim is Thomas Birmingham, Jane Swift or any of the 143 Legislators who voted to adjourn the Constitutional Convention last July 17, it no longer has any aura of truth. The Court made it clear in its advisory of Dec. 20, 2002 to Jane Swift that the Legislature's Joint Rule 12A of 1995 changed the law when it was enacted.

Unlike 1992, the 2002 Legislature violated the Constitution when it adjourned the Constitutional Convention on July 17 and adjourned the Legislature on July 31 without allowing a vote on our Marriage Amendment. After that, it was unable to recall the Constitutional Convention on its own without the help of the Governor.

That was all explained in the Court's decision of Dec. 20, 2002. Don't they read their own opinions?