LIBEL by New York Times
Excerpt 3 - Chapter 27
Gay Marriage Was a 3-3 Tie, with Marshall Casting Deciding
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
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
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
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
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
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
in the next six months that the court has given the Legislature
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
and the Worcester Telegram, will be working to see that they never
the truth. In their story written in the Times on November 19th,
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
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 the time to read my briefs. Now it appears that we may finally
a court that will forego consensus and debate issues contentiously,
with respect, which is why they are there. But it seems doubtful
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
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
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
the Constitution the next time. Attorney Sacks, who is only a
"hired gun," as is every attorney and is required to represent
whether they are right or wrong, replied with some skewed information
and I was not allowed any time to respond. However, it appeared
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
go, you can use the website of the legal newspaper I used to own
www.lawyersweekly.com. All three dissenting judges joined in each
other's opinion, so all three agree with what you are reading.)
Justice Cordy Explains Why We
"[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
between two individuals (although that is certainly part of any
marriage). Rather, on an institutional level, marriage is the 'very
of the whole fabric of civilized society,' ... and it serves many
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
family structure in which children will be reared, educated, and
socialized. ... [A]n orderly society requires some mechanism for
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
place in it primarily from those who raise them, and those children
eventually grow up to exert some influence, great or small, positive
negative, on society. The institution of marriage encourages parents
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
marriage also formalizes the bonds between people in an ordered
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,
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
married opposite-sex parents remains the optimal social structure
which to bear children, and that the raising of children by same-sex
couples, who by definition cannot be the two sole biological parents
a child and cannot provide children with a parental authority figure
each gender, presents an alternative structure for child rearing
not yet proved itself beyond reasonable scientific dispute to be
as the biologically based marriage norm. ... Working from the
assumption that a recognition of same-sex marriages will increase
number of children experiencing this alternative, the Legislature
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
message to its citizens that marriage is a (normatively) necessary
their procreative endeavor; that if they are to procreate, then
endorsed the institution of marriage as the environment for it and
the subsequent rearing of their children; and that benefits are
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
abandonment of this claim, and might result in the mistaken view
civil marriage has little to do with procreation: just as the potential
procreation would not be necessary for a marriage to be valid, marriage
would not be necessary for optimal procreation and child rearing
occur. In essence, the Legislature could conclude that the consequence
of such a policy shift would be a diminution in society's ability
the acts of procreation and child rearing into their most optimal
"The court recognizes this concern, but brushes it aside with
assumption that permitting same-sex couples to marry 'will not diminish
the validity or dignity of opposite-sex marriage,' and that 'we
no doubt that marriage will continue to be a vibrant and revered
Whether the court is correct in its assumption is irrelevant.
What is relevant is that such predicting is not the business of
courts. A rational Legislature, given the evidence, could conceivably
come to a different conclusion, or could at least harbor rational
about possible unintended consequences of a dramatic redefinition
"The Legislature is the appropriate branch,
and practically, to consider and respond to it. It is not enough
as Justices might be personally of the view that we have learned
to decide what is best. So long as the question is at all debatable,
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
the issue presented here is a profound one, deeply rooted in
social policy, that must, for now, be the subject of legislative
Justices Sosman and Spina Disagree
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
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
just society. As a matter of constitutional jurisprudence, however,
case stands as an aberration. To reach the result it does, the court
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
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. ...
court has transformed its role as protector of individual rights
role of creator of rights. ***"
Anyone Who Disagrees with Margaret
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
new one. (However, she does not have the authority to do so and
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
to articulate a constitutionally adequate justification for limiting
marriage to opposite-sex unions. It has failed to do so."
Ample opportunity?!? Seventeen minutes is an ample
It took Marshall 9000 words to explain her ruling, yet she had
expected the Assistant Attorney General, Judith Yogman, to explain
subject to her in only 17 minutes and a few seconds.
She cut off Yogman in a disgraceful manner when the
for thirty seconds more! No person, much less a judge, should ever
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
the very end of the opinion with this: "The marriage ban works
and scarring hardship on a very real segment of the community for
rational reason." She continued: "[This] suggests that
restriction is rooted in persistent prejudices against persons who
who are believed to be) homosexual."
Marshall Kept the Opinion for
The writing of court opinions is always assigned by the Chief Judge
to different judges so that they all have an equal workload but
Marshall kept the gay marriage case all for herself. After all,
Pinch had worked hard and long for this. It was not just another
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
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
has given her in Massachusetts.
The reporter for the Christian Science Monitor, Sara B. Miller,
that Marshall's ruling was a "pen stroke heard around the world"
"this relatively unknown Massachusetts jurist ... has thrust
the middle of the nation's culture war. ... While she is not expected
become a national lightning rod, her recent decision is likely to
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;
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
as though she is unique in that quest. She doesn't realize that
may be her "civil right" will almost always be a grievous
with the civil rights of someone else. But "civil rights"
is a magic phrase
today. She must have told Sara Miller about her "courageous"
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:
redefinition of the family. ... Marshall was raised in South Africa
came of age fighting against systematic segregation, which many
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
"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
of 20,000 student activists protesting the regime's racial discrimination.
... Legal professionals focused on those sentences, especially the
the words 'second-class citizens,' to illustrate the South African
Marshall's strong belief that the rule of law in this country should
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
newspapers, we would discover that the Chief gave the same story
every reporter. One must wonder how black people feel about being
compared to homosexuals when polls are showing that most blacks
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
Marshall the answer if she had been allowed to talk - is that
Massachusetts does not deny marriage to anyone, except for laws
polygamy, marriages of brother and sister etc., ones where
there is communicable syphilis or, in some cases, if the person
There are no laws that "deny" homosexuals
from marrying. And
there is no definition of marriage in either the Constitution or
the Legislature has passed. Everyone has always assumed that we
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
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
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
this: "Many people hold deep-seated religious, moral, and ethical
... 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
And besides, everyone has known for hundreds of years
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
The judge went into a lengthy description of the
couples and what outstanding people they are. That may well be
true, and it probably is, because they were all carefully chosen
16-person staff at GLAD. She told us "they include business
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
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
let them marry? How about two sisters who live together because
husbands have died. Must they have sex in order to get the benefits
The simple answer is, there is no answer. Any system
will not be "rational" in every situation. The only really
is to just abolish the institution of marriage, which is the true
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
here was to favor one group, homosexuals, and give them benefits
other groups do not receive. Most lawyers believe that would violate
the U.S. Constitution. That would allow federal judges, like the
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
setting for procreation and to ensure the optimal setting for child
rearing, which she says the state defines as "a two-parent
one parent of each sex."
It was embarrassing to read her language about procreation.
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
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
that children do much better when they have a mother and a father
help and protect them. She wrote: "Protecting the welfare of
is a paramount State policy. Restricting marriage to opposite-sex
however, cannot plausibly further this policy." But that's
matter of opinion. Where does she find that she has the power to
this earth shattering change to our society simply because of her
The truth is that as an extreme feminist she believes
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
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
Legislature, would not destroy marriage as we know it. She wrote
her ruling: "But it does not disturb the fundamental value
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