LIBEL by New York Times

by J. Edward Pawlick

Reserve Yours Now!


LIBEL by New York Times
by J. Edward Pawlick
Excerpt 3 - Chapter 27

Gay Marriage Was a 3-3 Tie, with Marshall Casting Deciding Vote

Everyone who disagrees with Margaret Marshall is a "prejudiced bigot," according to her. When Marshall wrote that in her opinion, was she including the three Associate Justices who say she had no right to do what she did?

This was a 3-3 tie with Marshall casting the deciding vote. She had been unable to convince even her three most capable associates. They say she had no power to do what she did. No wonder she was so nervous at oral argument and is now trying to hurry this along in the legislature before anyone has a chance to think about it.

The following is excerpted from the book by Atty. Pawlick.

* * * * * * *

When Margaret Marshall saw the opinions of her fellow justices
about gay marriage, she must have cringed. The judges have prided
themselves upon working as a body, with few dissents. It now appears
that those days may be over These were not the words of "right wing
kooks" in those dissents, but her fellow Justices.
-- "Today, the court has transformed its role as protector of individual
rights into the role of creator of rights, and I respectfully dissent."
Justice Francis X. Spina"
-- "[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

All the pundits appear to have missed the significance of the above quotations. But, then again, it's almost impossible for any newspaper reporter to have
grasped this significance within their deadline. This insight does not come when you're in a frenzy to make "deadline."

The words of the dissenters show that we finally have an "intelligent discussion" in process in Massachusetts, which is what I have been attempting for
five years. This should have a profound effect upon what happens here
in the next six months that the court has given the Legislature to do
something. The only problem will be informing the citizens about
what these Justices have said. Obviously, The New York Times
Company, including its two subsidiaries in the state, the Boston Globe
and the Worcester Telegram, will be working to see that they never discover
the truth. In their story written in the Times on November 19th, our old
friend, Pam Bullock, did not go into any depth.

If Pinch was angry to see Sally's referendum come out of nowhere [the Protection of Marriage Amendment], think what he will do when he discovers this book you're holding.

One's heart must go out to Margaret Marshall. When you look at the picture of the idealistic young woman who arrived here in 1968 eager to help the world, it is sad to see her going down the road that many seem to follow when they become entwined with the Times.

Although Pinch will do his best to keep her reputation intact, for a while, he will not care when she no longer serves his purpose. Her dream of a happy SJC working together under her leadership has been shattered. That might explain her uncivilized behavior at the oral argument last spring. She knows she is not making sense.

When I first appeared before the seven judges in 2002, none of
them seemed interested in listening to me. They were occupied with
other things. It was readily apparent and discouraging that no one had
had the time to read my briefs. Now it appears that we may finally have
a court that will forego consensus and debate issues contentiously, but
with respect, which is why they are there. But it seems doubtful that
Margaret Marshall will be able to do that.

Cordy Was Fired Up
Justice Cordy wrote the longest opinion of all and Marshall felt
compelled four times to answer him, only him, by name in her opinion,
which is highly unusual. She obviously realized the sagacity of his
remarks. Justice Cordy was so passionate about the matter that he
wrote 9210 words, as compared to 9021 for Marshall.

If lawyers in other states or academics want to understand this issue,
the three dissenting opinions are the place to begin. They are better
than any law review article will ever be.

I knew at the end of my last session before the SJC in May 2003
that I had gotten Justice Cordy's attention. He asked Assistant Attorney
General Peter Sacks if it was correct that the only option that
Massachusetts Citizens for Marriage had was to spend another $1.7
million, try again and hope that someone in the Legislature would follow
the Constitution the next time. Attorney Sacks, who is only a
"hired gun," as is every attorney and is required to represent his client
whether they are right or wrong, replied with some skewed information
and I was not allowed any time to respond. However, it appeared to me
at the time that Justice Cordy had been awakened.

Here's a short sampling of Cordy's opinion. (If you wish to read
more, the entire opinion is easily found. If you do not know where to
go, you can use the website of the legal newspaper I used to own at All three dissenting judges joined in each
other's opinion, so all three agree with what you are reading.)

Justice Cordy Explains Why We Have Marriage
"[T]he 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

"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. ... [A]n 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. ... More macroscopically, construction of a family through
marriage also formalizes the bonds between people in an ordered and
institutional manner, thereby facilitating a foundation of interconnectedness
and interdependency on which more intricate stabilizing social
structures might be built. ...

"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. At the very least, the
marriage statute continues to serve this important State purpose. ...

"Taking all of this available information into account, the
Legislature could rationally conclude that a family environment with
married opposite-sex parents remains the optimal social structure in
which to bear children, and that the raising of children by same-sex
couples, who by definition cannot be the two sole biological parents of
a child and cannot provide children with a parental authority figure of
each gender, presents an alternative structure for child rearing that has
not yet proved itself beyond reasonable scientific dispute to be as optimal
as the biologically based marriage norm. ... Working from the
assumption that a recognition of same-sex marriages will increase the
number of children experiencing this alternative, the Legislature could
conceivably conclude that declining to recognize same-sex marriages
remains prudent until empirical questions about its impact on the
upbringing of children are resolved. ...

"As long as marriage is limited to opposite-sex couples who can at
least theoretically procreate, society is able to communicate a consistent
message to its citizens that marriage is a (normatively) necessary part of
their procreative endeavor; that if they are to procreate, then society has
endorsed the institution of marriage as the environment for it and for
the subsequent rearing of their children; and that benefits are available
explicitly to create a supportive and conducive atmosphere for those
purposes. If society proceeds similarly to recognize marriages between
same-sex couples who cannot procreate, it could be perceived as an
abandonment of this claim, and might result in the mistaken view that
civil marriage has little to do with procreation: just as the potential of
procreation would not be necessary for a marriage to be valid, marriage
would not be necessary for optimal procreation and child rearing to
occur. In essence, the Legislature could conclude that the consequence
of such a policy shift would be a diminution in society's ability to steer
the acts of procreation and child rearing into their most optimal setting.
"The court recognizes this concern, 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. ...

"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

Justices Sosman and Spina Disagree with Marshall
Both Sosman and Spina also used tough language in their opinions.
Sosman wrote: "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. ***

"As a matter of social history, today's opinion may represent a great
turning point that many will hail as a tremendous step toward a more
just society. 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 Spina wrote: "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 ... 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. ***"

Anyone Who Disagrees with Margaret is "Prejudiced"
Margaret Marshall made a donkey of herself in her opinion which
is easily discernible to those of you who have been following along.
Marshall is not interpreting the state Constitution. She is writing a
new one. (However, she does not have the authority to do so and she
knows it.) The legal way to change the Constitution is to have the
Legislature initiate a referendum or for someone like Sally to get
enough signatures to require that a referendum be held.

Marshall wrote: "[The state] has had more than ample opportunity
to articulate a constitutionally adequate justification for limiting civil
marriage to opposite-sex unions. It has failed to do so."

Ample opportunity?!? Seventeen minutes is an ample opportunity?!?
It took Marshall 9000 words to explain her ruling, yet she had
expected the Assistant Attorney General, Judith Yogman, to explain the
subject to her in only 17 minutes and a few seconds.

She cut off Yogman in a disgraceful manner when the lawyer asked
for thirty seconds more! No person, much less a judge, should ever treat
anyone in such a discourteous manner.

Then Marshall wrote that those who do not believe we should have
homosexual marriage are "prejudiced." She started that paragraph at
the very end of the opinion with this: "The marriage ban works a deep
and scarring hardship on a very real segment of the community for no
rational reason." She continued: "[This] suggests that the marriage
restriction is rooted in persistent prejudices against persons who are (or
who are believed to be) homosexual." …

Marshall Kept the Opinion for Herself
The writing of court opinions is always assigned by the Chief Judge
to different judges so that they all have an equal workload but Justice
Marshall kept the gay marriage case all for herself. After all, she and
Pinch had worked hard and long for this. It was not just another boring
case. She was not a judge here, she was an advocate in another "civil
rights" cause. She would not let go of this one.

Marshall obviously thought this would make her famous and
improve her chances of being named to the U.S. Supreme Court. It
certainly made her a heroine to Pinch. If he continues to be the
President of The Company, he will be able to continue the publicity he
has given her in Massachusetts.

The reporter for the Christian Science Monitor, Sara B. Miller, said
that Marshall's ruling was a "pen stroke heard around the world" and
"this relatively unknown Massachusetts jurist ... has thrust herself into
the middle of the nation's culture war. ... While she is not expected to
become a national lightning rod, her recent decision is likely to catapult
her onto the national stage, putting her both in the spotlight and
the limelight." That made Margaret smile.

I hate to say I told you so. That needn't have happened; she could
have had someone else write the decision. She could even have helped
them write it if she wished. But if she had done that, she wouldn't have become famous.

"Civil Rights" Champion
Marshall likes to tell reporters that she is merely a civil rights advocate,
as though she is unique in that quest. She doesn't realize that what
may be her "civil right" will almost always be a grievous interference
with the civil rights of someone else. But "civil rights" is a magic phrase
today. She must have told Sara Miller about her "courageous" stands
for civil rights because the first paragraph in the article says:

"Margaret Marshall likes to say she's lived through two revolutions
- the overthrow of apartheid in her native South Africa and the
advancement of women in the U.S. Now the chief justice of the
Massachusetts Supreme Judicial Court is on the forefront of a third: the
redefinition of the family. ... Marshall was raised in South Africa and
came of age fighting against systematic segregation, which many say
has formed her notions of freedom and fairness as a judge."

Another paper, the Berkshire Eagle, used the same theme in its headline and in its lead paragraph:

"Gay-marriage ruling: Echoes of apartheid fight. In 1966, while
South Africa was under the grip of apartheid laws that denied black
people the right to own land or vote, Margaret H. Marshall led a group
of 20,000 student activists protesting the regime's racial discrimination.
... Legal professionals focused on those sentences, especially the use of
the words 'second-class citizens,' to illustrate the South African born
Marshall's strong belief that the rule of law in this country should prevail
over prejudice." (It would be interesting to see proof of that
"20,000 student" claim.)

One would assume that if we were to search more stories in more
newspapers, we would discover that the Chief gave the same story to
every reporter. One must wonder how black people feel about being
compared to homosexuals when polls are showing that most blacks are
not supportive of gay marriage.

Started Out Totally Wrong
Marshall started out totally wrong in her opinion. In the very first
paragraph, she said the question before them was whether the state
could "deny" marriage to homosexuals.

But the simple answer to that - Judith Yogman would have told
Marshall the answer if she had been allowed to talk - is that
Massachusetts does not deny marriage to anyone, except for laws prohibiting
polygamy, marriages of brother and sister etc., ones where
there is communicable syphilis or, in some cases, if the person is under

There are no laws that "deny" homosexuals from marrying. And
there is no definition of marriage in either the Constitution or laws that
the Legislature has passed. Everyone has always assumed that we all
know what marriage is. There hasn't been a need for a definition.
Marshall's good friend, Mary Bonauto, urged the court to just go
ahead and say that the Department of Health had made a mistake.
Bonauto pointed out that there was nothing anywhere that "denied"
the Department the right to issue licenses. But if Marshall did that, she
wouldn't become famous, would she? The whole world wouldn't be
bothered reading her opinion.

Of course, we knew that the next thing Marshall would do was to
say this is not a religious issue, because by so doing she would thereby
make it into a "religious issue." Attorney Yogman never said it was a
religious issue, but Marshall put it right at the top of her opinion with
this: "Many people hold deep-seated religious, moral, and ethical convictions
... but our concern is with the Massachusetts Constitution ..." But we know that is not the truth because she has no concern at all for our Constitution, except to twist it for her own special goals.

And besides, everyone has known for hundreds of years that marriage
is a secular institution. Does she think she's the only one who
knows? As she said later, "In Massachusetts, civil marriage is, and since
pre-Colonial days has been, precisely what its name implies: a wholly
secular institution."

The judge went into a lengthy description of the seven homosexual
couples and what outstanding people they are. That may well be
true, and it probably is, because they were all carefully chosen by the
16-person staff at GLAD. She told us "they include business executives,
lawyers, an investment banker, educators, therapists, and a computer

But what exactly does that prove? There are many other fine people
who are not included in marriage as we know it. How about mothers
who have children out-of-wedlock? Should we have marriage for them
also, with the Secretary of State appointed as their spouse? Or how
about widows? How about those three lesbians who truly love each
other and have children who are dependent upon them? How about
the two women who truly love the same man? What harm will it do to
let them marry? How about two sisters who live together because their
husbands have died. Must they have sex in order to get the benefits of

The simple answer is, there is no answer. Any system you establish
will not be "rational" in every situation. The only really fair alternative
is to just abolish the institution of marriage, which is the true aim of
extreme feminists.

The truth about why Marshall wrote only about state law and never
cited the U.S. Constitution is because she knew that she would have
serious problems under the federal Constitution because there are
judges there who still look at that document fairly. In Massachusetts,
the state Constitution means anything she says it does. What she did
here was to favor one group, homosexuals, and give them benefits that
other groups do not receive. Most lawyers believe that would violate
the U.S. Constitution. That would allow federal judges, like the dissenters
in her own court, to show her duplicity.

Family and Children Not Important
She said that the state argued that it had two reasons for "prohibiting
same-sex couples from marrying." The reasons were to have a favorable
setting for procreation and to ensure the optimal setting for child
rearing, which she says the state defines as "a two-parent family with
one parent of each sex."

It was embarrassing to read her language about procreation. She
filled it full of statements like this: "Fertility is not a condition of marriage,
nor is it grounds for divorce." She would get an "F" in law school
for an answer like that, which was totally unresponsive. She does not
even grasp what Justice Cordy meant when he wrote that procreation
was an important reason why society would favor marriage.

It was also embarrassing watching her squirm around the truism
that children do much better when they have a mother and a father to
help and protect them. She wrote: "Protecting the welfare of children
is a paramount State policy. Restricting marriage to opposite-sex couples,
however, cannot plausibly further this policy." But that's only a
matter of opinion. Where does she find that she has the power to make
this earth shattering change to our society simply because of her opinion?

The truth is that as an extreme feminist she believes that marriage
is deleterious to women, and she must remove that institution, whether
she can justify it or not.

It now becomes clear why she waited so long to issue her opinion.
She was desperately trying to write something that would make sense.
But she couldn't do so.

Her final absurdity is that her ruling, if implemented by the
Legislature, would not destroy marriage as we know it. She wrote about
her ruling: "But it does not disturb the fundamental value of marriage
in our society." ***

This is the full text of the 12-pages of Margaret Marshall's opinion in the gay marriage case, plus the 22-pages of the other judges, for a total of 34-pages

Make your homepage

© Copyright 2003 Massachusetts News. All Rights Reserved.