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Removing Margaret Marshall Will Heal Massachusetts
When the signers of our state Constitution met in 1780, they anticipated
that judicial tyranny might become a threat to our society.
Therefore, they included a simple method
of “Removing” judges
as a way of preventing such oppression. We are witnessing such tyranny
today in Margaret Marshall’s two decisions on gay marriage,
and we are therefore grateful to John Adams and the others who gave
us a remedy to nip this in the bud. Despite numerous attempts to
change or abolish the provision, it has withstood the test of time.
After 224 years, it remains firm and strong in our Constitution as
Article 98.
Marshall’s ruling on gay marriage was
approved by only three of her Justices. The other three, Francis
Spina, Martha B. Sosman and Robert J. Cordy, passionately disagree.
No one can label them as bigots or right-wing kooks. They are
respected Justices on the SJC.
A “Removal” differs from an impeachment
trial, which has intricate procedures with multitudes of lawyers.
In a Removal, each Legislator votes his or her own conscience,
without a need to make specific charges or prove bad behavior.
What is needed is a simple majority in favor in both the Senate
and the House. It is then sent to the Governor and his Council
for their approval.
Obviously, no one will ever vote lightly to remove a judge. He or
she would be ridiculed by all if he did. In addition, each Legislator
must face the voters at some point, regardless of which way he or
she votes.
We’re now witnessing a circus on Beacon
Hill which is violently shaking the state, causing many to doubt
whether we still have a viable government. While our young men
are dying in an attempt to bring democracy to Iraq and elsewhere,
we fear the loss of our representative government here at home.
Only the Removal process will heal us. If that does not occur, the
citizens will express their opinions next November at the ballot
box as they did with Senator Tom Birmingham two years ago. Now they
want their Senators and Representatives to indicate on the record their
sincere beliefs on this issue, without the elaborate tricks that
only skillful, expert parliamentarians can play.
There will be no tricks in this vote. The majority of the citizens
are not going to be placated until Margaret Marshall is removed.
A serious problem in this state is that many
of the Legislators are unafraid because they have never had an
opponent and don’t
expect they will. This appears to be changing in 2004. You must
help it happen!
Our problem began in July 2002 when most
of the present Legislators sat as a Constitutional Convention
and decided they would not vote on a proposed amendment to the
state Constitution, known as the “Protection
of Marriage Amendment.” That amendment came from 76,607 citizens,
almost 20,000 more than are required under our Constitution. Most
of our Senators and Representatives broke the law at that time and
made it absolutely impossible for the Amendment to obtain the 25%
of the Legislators necessary for it to be sent to the people. It
was discarded and thrown into the trash. That was done because the
opponents knew the measure would prevent the Supreme Judicial Court
from imposing homosexual marriage or civil unions in this state,
and they knew it would be passed and then approved by the citizens.
The Legislators who voted to discard the Amendment said they had
done nothing wrong, although clearly they had. The Supreme Judicial
Court unanimously agreed on December 20, 2002 that they had, indeed,
violated the Constitution, and they were required to vote on the
Protection of Marriage Amendment before the end of the year. They
failed to do so.
The President of the Senate publicly said he lost his bid to become
Governor because of his complicity in the despicable affair. These
politicians are laboring in an Augean stable. It is now clear that
the New York Times Company, owner of the Boston Globe since 1993,
is also complicit in the stench.
A year later, on November 18, 2003, Margaret Marshall and three
of her associates, voted to do what would have been forbidden by
the Protection of Marriage Amendment. The other three members of
the SJC disagree strongly. They wrote passionate opinions, saying
that this is not only wrong, but illegal.
We report here the written words of those three Justices to show
why a Removal procedure is now required. Even though the three Justices
were probably not thinking about Removal when they wrote their opinions
on November 18, 2003, the events since then have proven the need.
The greatest concern of the opposing Justices is the unlawful power
that has been assumed by Margaret Marshall and her three cohorts.
They also disagree strongly about the role of marriage in our society,
but they are more troubled that the Court presumed to even hear the
case. They agree with the Superior Court judge who dismissed the
suit, holding he did not have the power to decide this issue, only
the Legislature does. The three Justices agree and say the suit should
have been summarily dismissed at the outset.
Three Justices
Say Margaret Marshall Doesn’t
Have the Power
These are the words of the three Justices:
"What
is at stake … is the
power of the Legislature to effectuate social change without
interference from the courts, pursuant to art. 30 of the Massachusetts
Declaration of Rights. The power to regulate marriage lies
with the Legislature, not with the judiciary. Today, the court
has transformed its role as protector of individual rights
into the role of creator of rights. …
"Whether
the court is correct in its assumption is irrelevant. What is
relevant is that such predicting is not the business of the courts. …
"The
Legislature is the appropriate branch, both constitutionally and
practically, to consider and respond to it. It is not enough that
we as Justices might be personally of the view that we have learned
enough to decide what is best. So long as the question is at all
debatable, it must be the Legislature that decides. ... the issue
presented here is a profound one, deeply rooted in social policy,
that must, for now, be the subject of legislative not judicial
action."
Three Justices Disagree Profoundly with Marshall
on the Issues
The three Justices disagree profoundly with Chief
Justice Marshall and her cohorts on the issue that Marshall chose
to adjudicate. These are their words.
"Ironically,
by extending the marriage laws to same-sex couples, the court
has turned substantive due process on its head and used it to
interject government into the plaintiffs’ lives.
*****
"To
reach the result it does, the court has tortured the rational
basis test beyond recognition. …
"Of
course, many people are raising children outside the confines
of traditional marriage, and, by definition, those children are
being deprived of the various benefits that would flow if they
were being raised in a household with married parents. That does
not mean that the Legislature must accord the full benefits of
marital status on every household raising children. Rather, the
Legislature need only have some rational basis for concluding
that, at present, those alternate family structures have not yet
been conclusively shown to be the equivalent of the marital family
structure that has established itself as a successful one over
a period of centuries. People are of course at liberty to raise
their children in various family structures, as long as they are
not literally harming their children by doing so. … That
does not mean that the State is required to provide identical
forms of encouragement, endorsement, and support to all of the
infinite variety of household structures that a free society permits.
*****
"Civil
marriage is the institutional mechanism by which societies have
sanctioned and recognized particular family structures, and the
institution of marriage has existed as one of the fundamental
organizing principles of human society. …
"Marriage
has not been merely a contractual arrangement for legally defining
the private relationship between two individuals (although that
is certainly part of any marriage). Rather, on an institutional
level, marriage is the "very basis of the
whole fabric of civilized society," … and it serves
many important political, economic, social, educational, procreational,
and personal functions.
"Paramount
among its many important functions, the institution of marriage
has systematically provided for the regulation of heterosexual
behavior, brought order to the resulting procreation, and ensured
a stable family structure in which children will be reared, educated,
and socialized. … an
orderly society requires some mechanism for coping with the
fact that sexual intercourse commonly results in pregnancy
and childbirth. The institution of marriage is that mechanism. …
"The
marital family is also the foremost setting for the education
and socialization of children. Children learn about the world
and their place in it primarily from those who raise them, and
those children eventually grow up to exert some influence, great
or small, positive or negative, on society. The institution of
marriage encourages parents to remain committed to each other
and to their children as they grow, thereby encouraging a stable
venue for the education and socialization of children. …
"It
is difficult to imagine a State purpose more important and legitimate
than ensuring, promoting, and supporting an optimal social structure
within which to bear and raise children. …"
Three Justices
Say Court Is Acting Illegally
In essence, these three Justices are saying that Chief Justice Margaret
Marshall and her three cohorts are acting ultra vires (without the
power to do so), even though the decision would change the basic
structure of our society as it has been since our founding.
The three Justices have not commented on the Removal of their fellow
judges because that is not in their purview. They have, however,
emphatically written that Margaret Marshall is without power to do
what she is doing. Now it is up to each individual Senator and Representative
to decide the question of Removal.
The only way to stop this illegal usurpation of power is to remove
Marshall and her three friends and have the Governor appoint four
new ones, who will obey the Constitution and not write a new one.
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