Margaret Marshall Was Warned about Citizen Outrage

   Margaret Marshall was warned last year about the outrage that would erupt if she attempted to impose gay marriage upon the state.

   The SJC was cautioned by Atty. Pawlick during a May 2003 oral argument with them: "[F]or you to do nothing at this point may be the best thing for the conservative movement because over 60% of the people in this state oppose gay marriage and if this is imposed upon them, there is going to be a seismic revolution that will forever have a tremendous effect upon the politics of this state." [Pawlick was arguing that the judges should send the Protection of Marriage Amendment on to the new Legislature.]

   Pawlick said the following to all the judges face-to-face during oral argument on May 9, 2003, except for Judge Greaney who had been warned earlier. This occurred during the argument concerning the Protection of Marriage Amendment, which had been illegally discarded by the Legislature on July 17, 2002

   The SJC's own decision on Dec. 20, 2002 said that the Legislature and Gov. Swift had acted illegally when they refused to vote in July.

ATTY. PAWLICK : May it please the Court. I'm Ed Pawlick, Attorney for the Plaintiff in this case. I would first like to express my appreciation to the Court for giving us time in your busy schedule. We really did appreciate your doing that.

I have great affection for this Court because they have served the people of this State for many hundreds of years, protected the freedom and liberty of those people. But I feel sad today because I don't think we're addressing the issues that are before the Court.

This case is not about arcane … we could make it about arcane state procedure and state law, but so far the Court has struck away all those things. So we're going to have to look at this now as a U.S. Constitution case. And hearing the previous cases [which were about millions of dollars involving large insurance companies orother large corporations, about which the judges appeared to be well prepared] makes me wonder whether we'd be doing better if we had couched this in monetary terms. We're talking about over two million dollars, not of big corporate money, but of small people. Over two million dollars spent and the money has been just thrown away. And we're told that we can come back next year and try again and maybe somebody will obey the law if we spend another two million dollars and three more years of our time. We got 130,000 signatures and this went to the Legislature for their vote, but they refused to allow a vote to be taken.

What we're really debating today is whether this case should be adjourned to a courtroom down on the Harbor [in the new federal courthouse]. It seems that that's what we're going to do because there are many issues that are before the Court concerning the U.S. Constitution. Probably the most important one at this time is Article 4, Section 4, which says that the U.S. Constitution guarantees to every state a republican form of government. And a republican form of government means representative. We're deciding today whether a federal court has to sit on this case because we've lost our ability to convene a representative state government.

Now we can argue whether or not that is because of the law in Massachusetts. We can certainly not disagree that both the Legislature and the Governor have violated that law. We could argue whether the law is there and this Court has just failed to find it, or we could say that this State has no republican form of government for this particular form of initiative procedure. But regardless of what the cause is, the State no longer has a republican form of government. I don't see how anyone can gainsay that, and most citizens out there believe that you are not going to correct this matter.

My client has been laughed at by many people because she has told them, and she has told national groups out there, that Massachusetts will come through. The people of Massachusetts are good; the courts are good; the judges are good; and in the end, they're going to come through. But she has been laughed and scoffed at both here, in this state and outside this state, for taking that position. They believe you will not change because this case has an obvious direct impact on the Goodridge case. And you are now deciding the Goodridge case. My client was very much shocked and surprised to read the transcript of the Goodridge case because it gave an indication that at least some of the judges in this Court are going to overturn the definition of marriage or vote to overturn it. We don't know how many or whether the Court is going to do it, but at least some of the judges appear determined to do that, overturn the most basic unit of our society, which is the family.

Actually, for you to do nothing at this point [in answer to our request to send the Protection of Marriage Amendment on to the new Legislature] may be the best thing for the conservative movement because over 60% of the people in this state oppose gay marriage and if this is imposed upon them, there is going to be a seismic revolution that will forever have a tremendous effect upon the politics of this state. And this is not something that just right wing conservatives look at. I mean, people such as Robert Reich, Michael Dukakis, Senator Kerry and I don't know the name of the woman who is the Green Party, but they and many other people were dismayed and disheartened by what happened here last year at that scandal and they can't understand why no one in this Court appears to have that same feeling. Everybody seems, appears to ...

CHIEF JUSTICE MARGARET MARSHALL: Mr. Pawlick?

ATTY. PAWLICK: Yes.

CHIEF JUSTICE MARSHALL: Excuse me, the case we have before us, you are allowed a very liberal range of arguments, but the issue before us is the appropriateness of the order of the Single Justice, correct?

ATTY. PAWLICK: Yes. So I will close then. I will ask you to consider that Senator Birmingham and Shannon O'Brien both went down to defeat because they opposed the Protection of Marriage Amendment and I would hate to see this Court get a stain on its face by doing the same -- making the same mistake. So I would ask you to consider that and you and we both want what the people want. But we don't know what the people want [because they have not been allowed to vote as required by the state Constitution]. I would like to go just to the brief of the Attorney General. I think this sums up the entire thing. His last paragraph sums up his whole argument, on page 33. He says that if you do what we suggest -- I'm quoting here -- "this will defeat the purpose of the legislative minority check on initiative amendments which was to insure that the initiative petitions submitted to the people for approval have at least a reasonable amount of support as reflected by the favorable votes of at least one-fourth of the Legislators elected to the General Court."

But this [procedure] has already been "defeated" by the Legislature. It really wouldn't be us who defeat it. They [the Legislature and the Governor] already defeated it because how can we possibly show an approval by the favorable votes of at least one-fourth if there is no vote? So the summation by the Attorney General here is ludicrous.

We just ask that you -- hope and pray that you consider this very carefully, and the Goodridge case, before forcing us, all of us, into Federal Court.

Thank you for your time.

CHIEF JUSTICE MARSHALL: Thank you Mr. Pawlick.

* * * * * *

Judge John Greaney was not in that May Courtroom because he was the Single Justice who had dismissed Pawlick lawsuit in February 2003. The rest of the judges were all there on Pawlick's appeal from Greaney's ruling.

The following is the transcript of what took place during Pawlick's argument before Greaney in February. Judge Greaney already knew his upcoming decision when this argument took place; but, of course, Pawlick did not know it. Unlike Margaret Marshall, who had made her passion for gay marriage perfectly clear for many years, Greaney had not indicated that his decision was already made. The Assistant Attorney General, Peter Sachs, had gone first.

JUSTICE GREANEY: Okay. Thank you, Mr. Sacks. Mr. Pawlick.

MR. PAWLICK: Basically, Peter is talking about where the law is followed. In this case, the law was not followed. He's absolutely correct that where the law is followed then what he says happens. The question is what happens when the law is not followed?

JUSTICE GREANEY: Is there any language in article 48 that talks about constructive approval?

MR. PAWLICK: Let me answer that in this way. In 1918, it was raised -- this exact scenario was raised in 1918. They said at that time that they could not even consider that this would happen, that the Legislature would on purpose disobey the law. They said they could not even conceive of it. What they said is, [reading from the transcript of the 1918 Convention]:

"I do not believe we need to consider seriously that contingency or a defiance of the provisions of the amendment by either of these two branches of the General Court. There are a great many provisions in the Constitution where the same question could be asked. What is going to happen if the mandate of the Constitution is disregarded and somebody declines to carry it out? It does not seem to me that such a question suggests any valid objection, particularly in the case of this amendment."

So they did consider this in 1918 and they said we can't conceive of such -- what word should I say -- such corruption that this would happen. So they did consider this, they said we don't think this would ever happen. It was not in their minds and they said this is the same thing as if the Constitution is not followed in some other route, what do you do? So they didn't put it in specifically. They didn't think they had to. They said -- basically, just said if it ever gets that bad, things are really bad.

JUSTICE GREANEY: Mr. Sacks seems to indicate that there was such language in some of the drafts about constructive approval, but --

MR. PAWLICK: Okay, but he is saying --

JUSTICE GREANEY: —but it did not appear in the final draft that was approved.

MR. PAWLICK: Yes, that is a little misleading the way he states it. As I understand it, what they did was they suggested putting it in the same way it is for legislation. They didn't have anything in there like this. That was not what was suggested. What was suggested was they follow the same route that is followed for legislative changes under article 48. They did not say -- they did not suggest a change like this that they could come in and somebody could say, "Okay, they didn't do it, let's put it in instead." That was not what they were discussing during their convention.

JUSTICE GREANEY: Okay.

MR. PAWLICK: That's misleading to say that.

So what we're talking about is what remedy do the citizens have now when the Constitution is not obeyed? We don't have any great love for this idea. But there has to be a remedy. If somebody can think of a better remedy or another way to do it, that's fine. We have just come up with this as a suggestion of the best way we can think of, but we don't have the best brains. The court and other people have more experience in this than we do. What should be the remedy? We believe there has to be some sort of a remedy and what it is we don't know, but we think this remedy is not drastic. It's merely sending it on to the next Legislature, sending it on to the same people who broke the law. This time they can do the same thing, but they should follow the law this time and have plenty chance to debate it, argue it. It will send a message to them that this time they should obey the law and we find it hard to believe that is a very serious remedy.

They're the ones, Your Honor, who have abandoned their duty and their right -- they had a right to vote on this, but they decided not to use that right. So I don't see why we should be too worried about them because they decided it. Up until December 20th [when the Court issued an advisory opinion to Gov. Swift], some people could say that they didn't understand. After December 20th, your opinion was perfectly clear and after December 20th they were just defying not only the Constitution, but this Court.

JUSTICE GREANEY: Why did the Governor wait so long to send those questions over here?

MR. PAWLICK: Well, if you want my opinion. She obviously didn't want this to happen and she felt goaded into it by our lawsuit and for some reason, she made a mistake. She shouldn't have asked you for an opinion and everything might have rolled right over. Why she did it, I don't know, but I'm very glad she did.

JUSTICE GREANEY: Well, she could have done it much earlier, couldn't she?

MR. PAWLICK: She could have, yes. She should have done it right away. She didn't even need to do it. I don't know how much I should say, but you know 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. If you notice, she never had a lawyer speak. No lawyer ever got up and said what her rights were and what her duties were. It was always somebody else, a press person or somebody like that because their lawyers knew.

We were talking with their lawyers, they knew what the law was. They didn't need to ask you. They knew what the law was. The law was clear and was the same as you found it. She had to call them back. It said "shall." And we go back to the same word that was used in the Clean Elections case where you made short swift of what "shall" means. I mean 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 think one other very important thing I would like to say is, you're not bound by the dicta in Limits . This is not the Limits case again. In Limits , the Legislature had until December 31st to act, but they passed Rule 12A in 1995 and that changed everything as you found in your advisory to the Governor. In 2002, they broke the law on July 31st. They violated the Constitution on July 31st. So it was already done. It was a fate accompli, which was not true in Limits . Limits , in my opinion, was decided correctly, it's only the dicta in it that caused all the problems. But you're not bound by the Limits case in any way, anymore because it's totally changed because of Rule 12A which says that they broke the law or violated the Constitution on July 31st whereas in the Limits case they had until December. The court was sitting here in the Limits case trying to say they had broken the law when they hadn't broken the law. In December, they hadn't broken the law. They still had time to remedy it, but they didn't have time to remedy it in 2002. So it's an entirely different case from Limits.

JUSTICE GREANEY: Okay.

MR. PAWLICK: I don't know how important it is, but it's very important to my client that they spent three years of their lives, $1.7 million on this thing and to say, "Well, you can come back next year and spend another two or three years and another million, two million dollars and hope that the Legislature will hear it next time?" That's all you have is a hope? What's going to change them? They're not going to change. I mean if they can get away this, they'll get away with it next time. We've just thrown out half of article 48 [which has referendum procedures for both new laws and constitutional amendments]. It's almost worthless because you never know who the Senate leader is going to be, what he's going to do. So you can't come back again.

I mean you'd be—really—you're really kind of stupid to come back this time, I guess, but you'd really be stupid to do it again. So I don't know what the answer is, but you know we've suggested one answer is to just send it to them. It's not a very drastic remedy at all because they're sending it right back to them. They can kill it again if they want to if that's their choice, but they should follow the law this time and at least take a vote on it.

JUSTICE GREANEY: Okay. I think I got it. Do you want to add anything else?

MR. PAWLICK: No, I think that's it.

JUSTICE GREANEY: Okay. Well, I'll take the time to study your papers and get back to both of you.

MR. PAWLICK: Can I say just one other thing. I don't know if I said this before, but you know we live with checks and balances in our society. There are three branches of government and the framers could see that people were not perfect, people were going to make mistakes and everything, so we had checks and balances. If this court doesn't perform its duty under that system, that kind of system has kind of been lost. I don't think this court can abdicate its role of doing checks and balances. You're correct when you defer to the Legislature and don't go running in there, but on the other hand when something wrong has happened, I think our whole system of checks and balances are going to be down the tube if you don't do something about it.

JUSTICE GREANEY: Okay.

MR. PAWLICK: Thank you, Your Honor.

JUSTICE GREANEY: Thank you, Mr. Pawlick, Mr. Sacks.