Gay Marriage Case Is a Nullity, SJC Is
Advised in Amicus Brief
...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.
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
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.
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
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
is not, however, our assessment that matters.
stands as an aberration. To reach the result it does, the court
has tortured the rational basis test beyond recognition."
the court is correct in its assumption is irrelevant. What is relevant
is that such predicting is not the business of the courts."
that Margaret Marshall will obviously try to ignore what he says.
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.
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,