Indictment of
Chief Justice Margaret H. Marshall and
Associate Justices John M. Greaney,
Roderick L. Ireland and Judith A. Cowin
Count #1
Chief Justice Margaret H. Marshall Did Encourage, Aid and Abet
Atty. Mary Bonauto and GLAD in Bringing the Lawsuit,
“Goodridge v. Dept. of Public Health”
In Violation of the Massachusetts Code of Judicial Conduct |
Section E(1) of the Massachusetts Code of Judicial Conduct states: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned …” [Emphasis added]
When the word “shall” is used in the Code, it signifies that the disqualification is mandatory.
Although the new Massachusetts Code of Judicial Conduct became effective on October 1, 2003, it is applicable to the facts in this Removal Procedure. Even if it were not, the old Code stated the same ethical standards at Canon 3(C)(1): “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned …” An important change is that the mandatory word “shall” has been substituted for the less strict word, “should.”
After Justice Marshall gave the Keynote Address at the Massachusetts Lesbian and Gay Bar Association on May 7, 1999, not only “might” her impartiality be questioned in the “Goodridge” case, it would have to be questioned by any impartial person. It was not a secret that Judge Marshall desired that such a case be filed in the Massachusetts courts.
The Massachusetts Lesbian and Gay Bar Association archives of “Summer 1999” state this about Marshall’s address before them: “The highlight of the evening for many was the keynote address given by Justice Margaret Marshall of the Supreme Judicial Court. Marshall, born in South Africa, noted with pride that her native land was the first country to write sexual orientation protections into the national Constitution. Based on those constitutional protections, South Africa's highest court last year struck down apartheid-era laws banning sodomy between consenting adults and Marshall read excerpts from the stirring decision. The Justice encouraged those lawyers in attendance to pay attention to the growing body of gay-friendly international jurisprudence. ”
The following description of the affair was given in the August 1999 archives of MLGBA by Joseph Barri, a homosexual partner in the Boston law firm of Hale and Dorr and a member of MLGBA.
Marshall Discusses Lessons from South Africa
Massachusetts Supreme Judicial Court Justice Margaret H. Marshall delivered a stirring address to the Massachusetts Lesbian and Gay Bar Association's Annual Banquet, which was held at the Royal Sonesta Hotel in Cambridge on May 7 [1999].
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The record turnout of more than 300 was spellbound by Justice Marshall's description of the evolution of gay and lesbian civil rights in her native South Africa.
Until the adoption of a new constitution that ended apartheid, and among other things prohibited discrimination based on sexual orientation, the laws of South Africa permitted any citizen to make a private arrest of anyone suspected of engaging in homosexual conduct. If the person so arrested attempted to escape, the citizen making the arrest could use whatever force was required, including killing the suspect.
Many observers might have expected South Africa to focus primarily on racial equality when considering minority rights to be protected under the new constitution. However, the drafters instead looked to the broader insight of John Adams, who is credited with being the craftsman of the Massachusetts Constitution, the oldest "living" document of its kind in the world.
As the first known proponent of a constitution that protected certain fundamental rights of individuals and groups without the political power to defend themselves, Adams struck a balance among three critical concepts: a bill of individual rights; a representative government; and an independent judiciary.
More than 200 years after the birth of the Massachusetts Constitution, South Africans adopted a constitution that incorporated Adams' approach to the protection of minority interests, including those with a minority sexual orientation.
Justice Marshall continued her address with a discussion of “National Coalition for Gay and Lesbian Equality, et al. v. Minister of Justice, et al.”, a landmark judgment of the Constitutional Court of South Africa on Oct. 9, 1998.
In National Coalition, the court relied upon the new constitution's prohibition against discrimination on the basis of sexual orientation to decriminalize sodomy between consenting males in private. To have held otherwise, the court said, would have been "a severe limitation of a gay man's right to equality in relation to sexual orientation, because it hits at one of the ways in which gays give expression to their sexual orientation." Continuing to quote from the decision, Justice Marshall noted that such a law also "radiates out into society generally and give [sic] rise to a wide variety of other discriminations, which collectively unfairly prevent a fair distribution of social goods and services and the award of social opportunities for gays."
Justice Marshall noted that "open advocacy for equal rights on behalf of people who have been discriminated against on the basis of sexual orientation has become a powerful piece of the general move for civil liberties for all people."
In finishing her presentation, Justice Marshall exhorted the lawyers in the audience to refer to the decision of the South African Constitutional Court in their equality jurisprudence efforts in the United States.
In this regard, she noted that lawyers in other countries have been referring to equality jurisprudence in the United States for several hundred years and that perhaps it is the time for lawyers in the United States to seek assistance from courts in other countries like South Africa, where new precedents are now being set, based in no small part on the groundbreaking work of John Adams in Massachusetts.
Margaret Marshall did not appear to be proud of her new country in 1999 when she told the MLGBA that perhaps it is time for lawyers in the United States to seek assistance from courts in other countries, such as her native land, South Africa.
As if to prove her point, the case which she later cited in “Goodridge” to support her main point was a case from another country, Canada. The last Section of her opinion, Section IV, four paragraphs long, relied largely upon a case from the provincial Court of Appeal for Ontario from 2003.
In addition, Marshall’s impartiality would have been questioned by observers in October 2000 when she attended a political dinner shortly before the November elections of 2000. Not only was it a political affair, it honored Attorney Mary Bonauto from the homosexual law firm, GLAD (Gay & Lesbian Advocates & Defenders). That firm had five lawyers in Boston, plus eleven support staff, working only on homosexual issues in New England. The existence of that powerful firm was startling to any impartial observer because there was no such legal effort anywhere in the country working on the side of traditional marriage
Attorney Bonauto and GLAD had just won the lawsuit in Vermont, which brought about civil unions there. They would shortly be bringing the “Goodridge” case in the courts of Massachusetts on April 11, 2001.
The event where Bonauto was honored was the Annual Gala of the Women’s Bar Association which was understandably attended by many politicians from Massachusetts. But judges should not attend political events, particularly when the honoree was a partisan such as Mary Bonauto, who appeared regularly in Massachusetts courts. The WBA is a political organization which lobbies extensively in the courts and the legislature. The featured speaker at this event was Dee Dee Myers, former press secretary for Bill Clinton. She received a rousing burst of applause when she predicted that Gore would win by a large margin. Myers' loudest applause came when she announced that Hillary Clinton would win New York. She noted to the 1800 people in attendance that she and Chief Justice Marshall are both married to the New York Times because they both have husbands who are employed there.
Count #2
Justice Marshall Permitted the Chief Justice of the Superior Court,
Suzanne V. DelVecchio, to Encourage GLAD and Attorney Mary Bonauto
to File the “Goodridge” case in the Massachusetts Courts,
In Violation of Section E(1) of the Massachusetts Code of Judicial Conduct
The Chief Justice of the Superior Court, Suzanne DelVecchio, has championed homosexual marriage for years. The Superior Court is the state’s trial court, where the “Goodridge” case began and ended.
Justice DelVecchio appeared at the Lesbian & Gay Bar Association the year after Marshall did, on May 5, 2000. This was just after Vermont approved civil unions.
"They're all shepherds up there,” she told the audience of several hundred lawyers and judges. “They quarry some granite. A stone is what they export. Their product is ice cream and stone. And Vermont recognizes same-sex couples. And here we are in Massachusetts. Would you please? It's embarrassing. Could we get with the program a little bit? The only way gays and lesbians in this state are going to achieve what has been achieved in Vermont is to stay who you are [i.e. be proud of your homosexuality], apply for the [important] jobs and demand to be seated at the table." Noting that it would be an uphill struggle, DelVecchio said: "Nothing is easy. Do you think getting my hair this color is easy?"
Attorney Mary Bonauto was also at that dinner listening to Judge DelVecchio speak. Bonauto was applauded for her work in Vermont and she presented an award to the two Vermont lawyers who had helped win civil unions in that state earlier in the year. Bonauto would file her gay marriage case in DelVecchio's Superior Court a year later.
Judge DelVecchio was also present at the WBA’s Annual Gala in October 2000.
She still continues her unprofessional conduct without comment from Chief Justice Marshall. She was Keynote Speaker at the Annual Meeting of the WBA in April 2004 where she said: "Why should we follow the straight-line path set by men? Our path is going to be circular and crooked - and more interesting." She predicted a "backlash" because of women's inroads into the legal profession, but she also answered the question herself with the flip: "So what?"
DelVecchio has never been censured or disciplined by Margaret Marshall. There is presently a question involving her Superior Court: Did many homosexual couples not receive valid marriage licenses on May 17 and were others not validly married after going before judges to waive the three-day waiting period?
The problem arises because Justice Marshall’s Order, which was contained in the last three sentences of her opinion on November 18, 2003, was not properly followed in the Superior Court. Marshall wrote:
“We vacate the summary judgment for the department [i.e., the summary judgment for the defendant Department of Public Health as entered by Judge Thomas Connolly against the plaintiffs in Superior Court]. We remand [send back] this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.”
But that Order was not properly followed. Instead of waiting for a judge in the Superior Court to enter a judgment as required, people were encouraged to begin a carnival atmosphere and start obtaining marriage licenses and marrying one-minute after midnight on May 17, even though there was not any authority to do so.
Some are saying that Bonauto took a calculated risk and did not follow the rules because she did not want the case going back to Judge Connolly. He had ruled against her in Superior Court, and she was not certain what he might do with the case if it went back to him again. Some say he had many options. Although it is a common custom in Massachusetts that judges sit in Motion Sessions and decide important questions in cases about which they have no knowledge, it is also common that this does not occur in important cases. Therefore, they say that Chief Justice DelVecchio should have seen that the case went back to Judge Connolly.
Even if everything the Superior Court did was totally proper and Judge Connolly would not have done anything differently, the possible impropriety is enormous and creates a stain on the court’s integrity. Judge DelVecchio should have been forced in 2001 to recuse herself from the “Goodridge” case or resign her office.
Count #3
Judge Marshall’s Three Companions Have Joined Her in Violating
Article XXX of the Massachusetts Declaration of Rights
Article XXX of the Declaration of Rights in our state Constitution states that “… the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
The three Associate Justices who have refused (Justices Spina, Sosman and Cordy) to join the other three (Justices Greaney, Ireland and Cowin) and their leader, Margaret Marshall, say unequivocally that no judge and no court is allowed to usurp the power of the legislature as those four have done.
Judges Sosman, Spina and Cordy say: “As a matter of constitutional jurisprudence, however, the case stands as an aberration. To reach the result it does, the court has tortured the rational basis test beyond recognition.” (Sosman)
They continue: “The power to regulate marriage lies with the Legislature, not the judiciary. The court has transformed its role as protector of individual rights into the creator of rights.” (Spina)
They say: “The Legislature is the appropriate branch, both constitutionally and practically, to consider and respond to same-sex marriage.The issue presented here is profound, deeply rooted in social policy, that must, for now, be the subject of legislative not judicial action.” (Cordy)
These statements come from all of those who have refused to join with Margaret Marshall because all of them have joined in the opinions of each other.
Judge Thomas Connollyof the Superior Court agrees. He held against the plaintiffs when the case was before him in the Superior Court, before it was appealed to Margaret Marshall and the SJC. He was the first to point out that no judge has the power under our Constitution to do what the plaintiffs had requested of him, saying: “The Commonwealth’s elected representatives, not the courts, should resolve this paradox. … While this court understands the plaintiffs’ efforts to be married, they should pursue their quest on Beacon Hill.”
These judges charge a serious violation of Article XXX of the Declaration of Rights, which states that the Judiciary shall never exercise the powers of the Legislature. These are not kooks who say that the Court has violated our Declaration of Rights; they are distinguished members of the Supreme Judicial Court and the Superior Court. These charges are not to be lightly dismissed.
Who else can correct this serious disobedience of our Constitution except for the Legislature? Indeed, it was for this occasion that John Adams had the wisdom and the foresight to include Article 98 and “removal” in the Constitution during its drafting in 1780.
A sampling of their words follows:
Justice Sosman – “In applying the rational basis test to any challenged statutory scheme, the issue is not whether the Legislature's rationale behind that scheme is persuasive to us, but only whether it satisfies a minimal threshold of rationality. Today, rather than apply that test, the court announces that, because it is persuaded that there are no differences between same-sex and opposite-sex couples, the Legislature has no rational basis for treating them differently with respect to the granting of marriage licenses. [footnote] … 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. … It is not, however, our assessment that matters. …
“As a matter of constitutional jurisprudence, however, the case stands as an aberration. To reach the result it does, the court has tortured the rational basis test beyond recognition.”
Justice Cordy - “The court recognizes this concern [about its ruling] but brushes it aside with the assumption that permitting same-sex couples to marry ‘will not diminish the validity or dignity of opposite-sex marriage,’ and that ‘we have no doubt that marriage will continue to be a vibrant and revered institution.’ Whether the court is correct in its assumption is irrelevant. What is relevant is that such predicting is not the business of the courts. A rational Legislature, given the evidence, could conceivably come to a different conclusion, or could at least harbor rational concerns about possible unintended consequences of a dramatic redefinition of marriage. ***
“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. … [T]his case is not about government intrusions into matters of personal liberty. It is not about the rights of same-sex couples to choose to live together, or to be intimate with each other, or to adopt and raise children together. It is about whether the State must endorse and support their choices by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them. While the courageous efforts of many have resulted in increased dignity, rights, and respect for gay and lesbian members of our community, 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.” (Cordy)
Justice Spina – “What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but 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. [citation] Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent.
“The court has extruded a new right from principles of substantive due process, and in doing so it has distorted the meaning and purpose of due process. The purpose of substantive due process is to protect existing rights, not to create new rights. Its aim is to thwart government intrusion, not invite it. The court asserts that the Massachusetts Declaration of Rights serves to guard against government intrusion into each individual's sphere of privacy. Similarly, the Supreme Court has called for increased due process protection when individual privacy and intimacy are threatened by unnecessary government imposition. ... The statute in question does not seek to regulate intimate activity within an intimate relationship, but merely gives formal recognition to a particular marriage. The State has respected the private lives of the plaintiffs, and has done nothing to intrude in the relationships that each of the plaintiff couples enjoy. … 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.”
Count #4
No Open and Fair Public Discussion Was Ever Allowed
In Violation of the Preamble to the
Massachusetts Code of Judicial Conduct
The Preamble to the Code of Judicial Conduct says: “Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central for American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.”
No meaningful public discussion of “Goodridge” was ever allowed by Justice Marshall to take place in her presence. When any court decides an issue, there will never be as much discussion as would be allowed by a legislature, but what Justice Marshall attempted was to allow no public discussion before her.
Every appellate court in the country has “Oral Argument” where lawyers for both sides appear before the court and state their opinions about the case.
At the Oral Argument in “Goodridge,” Justice Marshall allowed only one lawyer from each side to appear for a total time for both of 37 minutes and 11 seconds. Attorney Bonauto went first, approached the Bench very casually and said: “Good morning, Your Honor. It's Mary Bonauto here for the appellants Hillary and Julie Goodridge …” She obviously knew she had a friend presiding.
The attorney for the people, Assistant Attorney General Judith Yogman, began in the usual formal manner: “Judith Yogman, Assistant Attorney General. I represent the Commissioner in the Department of Public Health …” She did not feel as though she was before a friend because she wasn’t. She began to speak but was interrupted after only 8 seconds by a very nervous Margaret Marshall.
Yogman was unable to draw a breath before she was questioned and badgered by Justices Marshall and Greaney. They barely allowed any other judge to enter this historic, monumental discussion which lasted only about 15 minutes. All of the other judges meekly went along, including those who later dissented.
Justice Marshall was as nervous as a cat, and it is unknown whether the issue had been discussed among the judges before that fateful day of March 4, 2003. Judge Marshall must have had some idea she had a possible revolt on her hands. She obviously wanted Atty. Yogman out of there as quickly as possible. It was quickly apparent she did not want even 15 minutes of public discussion from the opponents.
Marshall and Greaney kept popping questions at Yogman for 82% of her time, never allowing her to present her case in an orderly manner as she had planned. Despite that, Yogman did an excellent job and Marshall was visibly determined to get her out of the courtroom before more damage was done. At the very end, Marshall told Yogman she could have “a few minutes” to sum-up. But she then stopped Yogman when she was only 28 seconds into her “few minutes.”
When Yogman politely asked for an additional 30-seconds in order to finish just a portion of what she had been trying to say, Marshall snapped, “I’m afraid your time is up.” Yogman could do nothing except say, “Thank you,” and everyone was ordered to rise while Marshall fled the courtroom.
That was the only glimpse that the public ever got of Margaret Marshall’s thinking in this historic case. Everything else was done in the privacy of her chambers with no input from anyone except her fellow judges and briefs from other lawyers that she chose to read.
The other three judges, Justices Greaney, Ireland and Cowin cannot say they were unable to see what was happening and what they were doing. They must also be removed.
(The entire transcript of the Oral Argument is available in a handout.)
Notes
Chief Justice Margaret Marshall, appointed by Republican William Weld as Associate Justice, 1996, and as Chief Justice by Republican Paul Cellucci, 1999.
Justice John M. Greaney, appointed by Democrat Michael Dukakis, 1989.
Roderick L. Ireland, appointed by Republican William Weld, 1997.
Judith A. Cowin, appointed by Republican Paul Cellucci, 1999.
