LIBEL by New York Times

by J. Edward Pawlick

Reserve Yours Now!

 

Gay Marriage Case Is a Nullity, SJC Is Advised in Amicus Brief
by Mass News Staff
January 12, 2004

...The gay marriage lawsuit was an even split among the six Associate Justices of the SJC, 3-3, and Chief Justice Marshall had no authority to break the tie, Atty. J. Edward Pawlick has told the Court in an Amicus Brief filed today. He is the lawyer for Mass. Citizens for Marriage and its President, Sally Pawlick.

...Atty. Pawlick says the three Justices who oppose Marshall's decision have written that even a unanimous Court would not have had the power or authority to do what she has ordered by herself.

...Pawlick's brief was entered in reply to the state Senate's request for an opinion on whether a civil unions bill, which it plans to pass, would satisfy Chief Justice Marshall's decision.

..."The six Justices on the Supreme Judicial Court were evenly split," Pawlick wrote. "The three who opposed Marshall's opinion said the Court did not have the power or the jurisdiction to even hear the case. …

..."The Chief Justice was required to recuse herself in that she had indicated many times that she was an advocate for the case and for the plaintiffs' attorney, her friend, Mary Bonauto.

..."Therefore, the vote of the Justices was a tie and the decision written by the Chief Justice is a nullity. As a result, the Legislature is not required to revise its laws with respect to same-sex couples."

...Atty. Pawlick noted the following language from the three Justices who opposed Marshall's ruling:

..."WHAT IS AT STAKE IN THIS CASE 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."
...Justice Francis X. Spina

..."It is not, however, our assessment that matters. … [T]he case stands as an aberration. To reach the result it does, the court has tortured the rational basis test beyond recognition."
...Justice Martha B. Sosman

..."Whether the court is correct in its assumption is irrelevant. What is relevant is that such predicting is not the business of the courts."
...Justice Robert J. Cordy

...Pawlick says that Margaret Marshall will obviously try to ignore what he says.

..."We had a big impact a year ago when Tom Birmingham and Jane Swift both asked for an advisory. The only reason that happened was because I frightened Gov. Swift with a FedEx the day before Thanksgiving in 2002. As a result, we got a definitive ruling from the SJC on Dec. 20, 2002 that both the Legislature and the Governor had violated the state Constitution. Up until then, they had both claimed they had done nothing wrong.

..."I don't know what will happen this year, but we want to keep the pressure on them. We do not want to give anyone the impression that we will accept either gay marriage or its equivalent, civil unions, which would grant every right of marriage, except for the use of the name, "marriage.


The Following is the Civil Union Bill for which Senate President Travaglini Is Seeking Permission for the Massachusetts Senate to Pass

 

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