Tie Vote on Homosexual Marriage!
3 Judges Agree 3 Disagree with Marshall’s Illegal Public Assurance
to Homosexuals in 1999 that They Would Win if They Filed in Mass.
In Addition to Validating Justice Marshall’s Malfeasance and Her Assurance to Vote for Homosexuals if They Filed a Suit in Massachusetts, Three of Her Companions Have Also Joined in Violating Article 30 of the Massachusetts Declaration of Rights
Article 30 of the Declaration of Rights in the Mass. Constitution is like the Bill of Rights in the U.S. Constitution except that it was written much earlier, in 1780. It states that “… the judicial shall never exercise the legislative and executive powers … to the end it may be a government of laws and not of men.”
The three Associate Justices who have refused to join 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 they all join in the statements of each other.)
(Sosman) 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.
(Spina) 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.
(Cordy) 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.
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. … [The plaintiffs] should pursue their quest on Beacon Hill.”
Judge Connolly and the three dissenters charge a serious violation of Article 30 of the Declaration of Rights, which states that the Judiciary shall never exercise the powers of the Legislature. These are not kooks who are saying that Marshall is running a rogue court which has violated our Declaration of Rights; they are distinguished members of the Supreme Judicial Court and the Superior Court. Their charges cannot 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: (Over)
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.”
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.”
Massachusetts Citizens for Marriage
P.O. Box 5882
Holliston, MA 01746
