Originally Published in June 2004
Removing Four SJC Judges Will Heal Massachusetts
            Originally published in March 2004, this article is still excellent except that Republican Mitt Romney will not be appointing the four new Justices by himself as the article seems to imply. Because all new judges must be confirmed by the Governor's Council and all the members of that Council are Democrats, it will not be a partisan affair.
            This article was probably written by Atty. J. Edward Pawlick, founder/CEO of Massachusetts Lawyers Weekly for twenty-five years and founder of MassNews after he sold Lawyers Weekly.

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.
       Justice Spina: "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.
       Justice Sosman: "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.

       Justice Cordy: "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.