Marriage
Amendment: The Law vs. Public Opinion?
Attorney Pawlick Responds
July 16, 2003
The articles concerning
the pending Massachusetts Supreme Judicial Court
decision pertaining to gay marriage have left the
readers without logical and
strongly supported evidence. The most frequently used
logic behind any
positive decision discusses the fact that the majority
of people in Mass
oppose such a proposition. The interpretation of the
laws, the duty of the
courts, is not and should not be based on public opinion.
The court's
decision must be based purely upon the interpretation
of the state
Constitution.
The current case before the court is being argued
based upon the
longstanding laws pertaining to marriage. Are gay
people being discriminated
against by not being allowed to engage in marriage?
Public opinion should
not factor into such a decision. Legislation such
as the marriage protection
amendment should and will discuss majority opinion
in regards to new laws,
but it does not pertain to the court's decision. Such
use of statistics, when
they have no bearing on the decision, is a prime example
of propaganda, an
issue you constantly accuse the Globe of engaging
in.
--Gary Loomis
Atty. Pawlick's Response
You raise some good points,
but I believe the logic is a little fuzzy. Let me
correct some factual errors and then I will get to
the courts.
-- You really know how
to hurt a guy. It's not true that my "most frequently
used logic" in support of the Marriage Amendment
is that the majority of citizens oppose gay marriage.
If you really believe that, I have been wasting my
time writing all that I have.
-- The homosexual marriage
case before the SJC is not based on "longstanding
laws pertaining to marriage." If it were, there
wouldn't be a case. The advocates are complaining
because the "longstanding" laws do not say
what they want them to say. The longstanding laws
limit marriage to one-man-one-woman. They want to
change that.
-- You are absolutely correct
that the Marriage Amendment "should" be
the factor in the case, but the Legislature and Governor
Swift refuse obey the Constitution. If that Amendment
were in effect, the SJC would not have the power to
impose homosexual marriage.
As you are aware, we live
in a "republic," not a "democracy."
We reply upon our representatives to learn more about
the issues than we do and to vote intelligently upon
them. Those representatives must come back for approval
and reelection at specified intervals.
Therefore, the voters are
theoretically in charge.
That is not true with the
courts. The judges have a lifetime sinecure. They
report to no one in our state. That can be good or
it can be bad. We could recite a long litany about
Marbury v. Madison or Andrew Jackson's statement that
Chief Justice Marshall had announced the law, now
let him enforce it. But you don't have the time to
read that.
A good judge must practice
restraint and not legislate from the bench. Most judges
today have forgotten that -- if they ever knew it.
What's your view of lawyers?
Should we just let them make all the decisions? Then
we can play and work without a guilty conscience.
That's what we're doing when we ask those seven lawyers
on the SJC to decide this basic foundation of our
entire society.
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