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Why Is the SJC Taking So Long
to Decide about Marriage?
By J. Edward Pawlick, July 21,
2003
Attorney for Massachusetts Citizens for Marriage
Members of the
Massachusetts Supreme Court |
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Will
gay marriage be imposed upon Massachusetts by
our Supreme Judicial Court in the Goodridge case?
As the lawyer who has appeared
before the Court four times since last October
arguing for traditional marriage in our state
(twice before a Single Justice and twice before
all the Justices), I have some feelings about
what is happening.
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If the judges decide to leave the definition
of marriage that has always existed in Massachusetts,
it will be a wonderful day for all Massachusetts citizens,
both homosexuals and heterosexuals.
It will be a great day for heterosexuals
because the SJC will not be intruding upon their right
to make that most basic decision.
It will be a great day for homosexuals
because their small number -- about 3% of citizens
-- will quietly be able to do their thing without
being bossed by militant activists. The average homosexual
knows that if the court does impose homosexual marriage,
it will highlight every one of them for scrutiny by
every "nut-cake" in the state. It will make
their lives unbearable.
If the SJC does not force a change upon
us, we will finally be able to get beyond this manufactured
"crisis" and go back to the really important
issues for everyone.
After the Court delayed its decision
for a day or two last week, most of us had our first
ray of hope - that the judges were not going to intrude
upon this basic decision about governing ourselves.
But most of us were cautious, believing that the Court
might be frantically rewriting their opinion to include
the recent U.S. Supreme Court case about sodomy in
Texas.
But it shouldn't take this long to re-structure
a court opinion. The longer the SJC waits, the more
it appears there is discord on the bench. This Court
likes to do things as a group; they do not like dissent.
It appears that they might not have unanimity on this
subject.
It looks as though they are trying to reach as much
unanimity as possible.
So who will back down?
At the oral argument of the case on
March 3, it appeared as though the Court was hell-bent
on changing the law. But a closer analysis showed
that it was mainly two judges -- Chief Justice Margaret
Marshall and the longest-serving, John Greaney, who
gave that impression. Those two appropriated 82% of
the time that had been allocated to the Assistant
Attorney General, Judith Yogman, to present her case
against changing the laws of marriage in Massachusetts.
Although Margaret Marshall hopes to
ride this case to her own personal fame and a seat
on the U.S. Supreme Court, it is a dangerous step,
particularly if there is a strong dissent. She would
be most hesitant if she has only a 4-3 majority. She
is a political person. Although she has the New York
Times/Boston Globe complex solidly behind her since
she married their most powerful columnist, Anthony
Lewis, they have their own serious problems with credibility
nowadays.
Only two people, both lawyers, were
allowed by the SJC to give any testimony at all about
this measure or to debate it, unlike hearings that
are held by legislatures. The total time allowed to
both was 37 minutes and 11 seconds to discuss the
merits of this momentous matter. Atty. Yogman had
been talking for only 8 seconds when Justice Marshall
first interrupted her with a contentious question.
Yogman was kept busy answering questions and was given
practically no time to make her points. When she requested
30-seconds more at the end to finish a thought, Marshall
snapped, "I'm afraid your time is up." Marshall
had just finished telling Yogman she could have "a
few minutes to sum up," but then the Chief closed
down the charade after only 28 seconds.
Judge Greaney assured the lawyer for the plaintiffs,
Mary Bonauto, that she will win the case. He told
her, "…if you win, and I'm certain you would…"
Who is Margaret Marshall?
Margaret Marshall is in her late fifties
and is married to Anthony Lewis, former premiere columnist
for the New York Times, who is twenty-years her senior.
She apparently has no children and some say that as
a result, she has no appreciation for the feelings
of women who do. They say she has never had any experience
with a family and has focused only on her career.
The Globe lobbied heavily for her appointment
in its Editorial, opinion and news pages. The appointment
was strongly opposed by many. In a "news story"
on Oct. 12, 1999, titled "Rulings show nominee
a moderate jurist with progressive views," the
first sentence of the Globe story was:
"Sex offenders have rights. … Modern
families no longer mean just mom, dad, and the kids."
The paper cited some of those "moderate"
rulings by Justice Marshall:
The Globe wrote: "When the SJC last August ruled
that anyone convicted of a sex crime is entitled to
a hearing before being listed on the state's sex-offender
registry, Marshall wrote: 'The burden will be on the
sex offender board to establish at the hearing that
the offender poses a risk to vulnerable populations.'"
Concerning
an opinion where Marshall had struck down a Boston
ordinance creating domestic partners because it was
clearly forbidden by state law, the Globe wrote:
"Marshall urged state lawmakers to craft legislation
that acknowledges the place of nontraditional families
in modern life.' We recognize that . . . [a] "family"
may no longer be constituted simply of a wage-earning
father, his dependent wife, and the couple's children,'
Marshall wrote. Nonetheless, 'Adjustments in the legislation
to reflect these new social and economic realities
must come from the Legislature.'" (The foregoing
text appeared in the Globe exactly as printed here.)
The news article also claimed: "An
examination of her rulings and the comments of colleagues
indicate a moderate jurist who tempers some of her
progressive views with judicial restraint and an awareness
of the powers and limits of the courts. In the tradition-bound
court that convenes in a high-rise on Pemberton Square,
Marshall, the controversial chief justice nominee,
has also added energy and spice to a frequently bland
bench."
Marshall graduated from college in her
South African homeland in 1966 and came here two years
later for a master's degree from Harvard. After Yale
Law School, she became a partner in the prestigious
firm of Choate, Hall and Stewart, leaving there to
become General Counsel for Harvard University. She
was appointed to the SJC in 1996 and then elevated
by Gov. Cellucci to Chief in 1999.
Most
People Believe Sarah McVay Pawlick Is Wasting Her
Time Appealing to the Courts
The President of "Massachusetts Citizens
for Marriage" still believes that the courts
are basically fair, although some judges are not,
as is true with people everywhere.
Her attorney and husband, J. Edward Pawlick, says,
"Sally lost me back at the time of oral argument."
Despite her confidence, he wondered at that time
if they had a chance.
He wasn't the only one. |
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Mrs. Sarah Pawlick
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The woman who is leading the fight for
traditional marriage in Massachusetts, Sarah McVay
Pawlick, has been told by most people that she is
wasting her time appealing to the courts or to anyone
else in this state.
Her lawyer says that many citizens, together with
others on the national scene, have been pointing to
this gay marriage case which seeks to impose gay marriage
on our state. "Most people appear to have already
decided that the Court will hold in favor of gay marriage.
They know that the Protection of Marriage Amendment
would not permit gay marriage and that is why they
believe Sally will never win in this court."
Atty. Pawlick filed his second suit in the SJC on
January 2, 2003, asking it to send the Amendment directly
to the new legislature because last year's legislature
under Senate President Tom Birmingham violated the
Constitution by voting to adjourn without a vote on
the measure. The SJC had held on Dec. 20, after a
suit brought last year by Pawlick, that the law had
been violated. But neither Birmingham nor Swift took
any action to comply with the judges' instructions.
Attorney Pawlick said that his wife points out to
everyone that she has not seen unfairness in the legal
cases she has observed in the last few years.
"There's no question, however, that she has her
head on the chopping block, ready to be ridiculed
and laughed at if she is proven wrong," he told
the Court.
"Her greatest concern is that she
will be turned away without any answer as to who can
sue. In particular, she is unable to understand why
everyone appears to be able to sue the Secretary of
the Commonwealth except her. Regardless of whether
she is right or wrong about the merits of her suit,
why would she be estopped from raising the issues?
If she is not allowed to sue, who can?"
The lawyer wrote in his 33-page brief that the other
side argues that MCM should just try again. That means,
he says, 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 that is true, we have lost our republican
form of government in Massachusetts?"
SJC Still
Has Not Ruled on 'Protection of Marriage' Amendment
The SJC still has not ruled on the suit
concerning the Protection of Marriage Amendment which
was filed by MCM on January 2, 2003, with oral argument
held in May. The suit asks the Court to send the Amendment
on to the current legislature with a vote by the people
at the polls in November 2004.
Lawsuit
for Libel Against New York Times Company by Sponsors
of Marriage Amendment Is Moving Forward
A lawsuit that was filed for libel
in April in federal court in Boston against The New
York Times Company by Massachusetts Citizens for Marriage
and its President, Sarah McVay Pawlick, is moving
forward.
The defendant, The New York Times Company, requested
the plaintiffs to agree to extensions of 14 days,
21 days and 3 days, a total of 38 extra days, for
it to research the matter before filing a responsive
pleading. That was agreed to by the plaintiffs.
Judge Patti Saris has been appointed to hear the case
and she assented to the continuances.
The main thrust of the defendant's response is that
the service of the suit on The New York Times Company
is not valid because that company is merely the owner
of the Boston Globe and has no control over its management.
The plaintiffs will be responding to that claim within
the next few weeks.
The two plaintiffs are seeking damages in excess of
$1.7 million plus punitive damages and emotional distress.
"Most lawyers will say that we do not stand a
chance in this lawsuit," says Atty. J. Edward
Pawlick.
"But they do not understand the egregious facts
in this case," he continued. "This is the
classic case of a 'bully in the schoolyard,' which
the Times claims to be against, but they are the biggest
bully of all. At the very least, many more people
will come to understand that. When these facts are
exposed, I believe a lot of people will be surprised.
We may start to see much more awareness of the power
structure and of the many changes that are necessary
in our state."
The lawsuit says that the Globe and the Times have
the right to oppose the Amendment and to urge that
the courts impose homosexual marriage in the state
-- which would not be permitted if the Amendment is
approved.
However, states the suit, "Both the Times and
the Globe have gone far beyond the ethics of journalistic
standards and have used their news columns to promote
their beliefs, including false and libelous statements
about Pawlick and MCM."
The suit says that the claims of "Save Our Horses,"
which have been heavily publicized by the Globe since
November 21, 2001, "gave the impression that
Pawlick and MCM were lying and using deceptive practices,
particularly in regard to those who wanted to sign
the horse petition and had been 'tricked' into signing
the plaintiffs' petition instead."
The suit goes on to say that the New York Times newspaper
jumped in on Sunday, April 7, 2002, only three days
before the hearing in the Legislature, with a large
story in its national edition and a banner headline
across the top of page 22, "Drive to Ban Gay
Marriage Is Accused of Duping Signers." This
was an attempt to influence the hearing even though
there was nothing new to report, says the suit.
Pawlick states in the suit that that charge of fraud
was used against her many times at that hostile hearing
before which she testified.
The suit says that the amount of damages will depend
upon whether the Supreme Judicial Court agrees to
instruct the Secretary of State to send the Amendment
to the new Legislature as though it had been approved
by the old one. If it does not do so, then the plaintiffs
will be seeking the entire $1.7 million that was spent
on the Amendment. However, if the SJC does move it
on, then the damages would be approximately $500,000
which was spent since July 31, 2002, in an attempt
to counter the libel of the defendant and to inform
the public of the facts.
In addition, Pawlick is also seeking punitive damages
and damages for emotional distress.
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