Posted on 02/10/2004 7:07:27 PM PST by CaptIsaacDavis
February 6, 2004 - Friday Massachusetts (more on this state)
On Nov. 18, 2003, the Supreme Judicial Court of Massachusetts set off a time bomb that could redefine marriage for every American. By a vote of 4-3, these unelected judges ruled that limiting marriage to opposite-sex couples violated the state constitution, and ordered the state legislature to address the issue by changing Massachusetts law.
State legislators have the opportunity to defuse this bomb with their vote on Feb. 11, 2004. On this day, both houses of the state legislature will convene in joint session as a Constitutional convention. On the agenda will be the Marriage Affirmation and Protection Amendment (known as MA & PA), which would amend the state constitution to define marriage as being the union of one man and one woman. If approved by a majority of legislators, it will be considered again in the next session in 2005, then it will go to a vote of the people at the next general election in 2006.
What happens to marriage in Massachusetts will impact the rest of the country. Our founders wrote into the U.S. constitution the "Full Faith and Credit" clause, which insures that states will honor contracts entered into in other states. So if marriage licenses are granted to homosexuals in Massachusetts, they will return to their home states and demand recognition of their same-sex "marriage." Once marriage is redefined to mean something other than the union of one man and one woman, it means nothing.
For answers to frequently asked questions on this issue, click here.
Here's what you can do to take a stand for marriage in Massachusetts:
Call or write your state legislators - both house and senate - today and urge them to vote in favor of MA & PA on Feb. 11. This gives the people the chance to vote on the definition of marriage. For contact information for your legislators, click here to visit our elected officials site: http://www.frc.org/context.cfm?c=CONG_DIR_LEG.
Call Senate President Robert Travaglini at (617) 722-1500 and urge him to bring MA & PA up for a vote on Feb. 11. (There have been press reports suggesting that he might delay the convention.) You can also send him an email at RTravagl@senate.state.ma.us.
Judicial Riot on the MA Supreme Judicial Court
by
James F. Burke
In all of the coverage of the war on civilization launched by the Massachusetts Supreme Judicial Court one would think that there is really a divisive clash of cultures at stake. In fact, this battle is occurring in a country where 38 state legislatures, including most recently Ohio, have taken steps to ensure that the protections and definition of "marriage" are not redefined and extended to anyone pretending to be advancing the state institution of marriage (which is, stripped of all pretense and religious overtones, for procreation and long-run survival of the body politic). This so-called clash is occurring against thousands of years of social, cultural, and political understanding and traditions, and against all Reason. An overwhelming majority of Americans are clearly repulsed by this sickening display of uncivilized and unprofessional behavior by the judges on the MA SJC, but we can also take heart in the fact that most of the world’s peoples also resist such nonsense (and this is without going anywhere near the issue of faith). In truth, this battle is not about a "clash" of anything, except for a fringe cabal of Radicals in judicial robes in league with radical socialists eager to convince themselves that their media (freak show)-induced Utopian delusions are something more than the reflections of a side-show act broadcast nationwide. No doubt the radical anarchist cell sitting on the MA SJC is reacting to the fact that the Commonwealth just elected one of its most conservative governors in history, who, shortly after coming home from Mormon Utah, promised to radically transform (deal with the infestation of) the state’s wasteful and Left-wing patronage ridden court system. There is absolutely no way that Beacon Hill would have even begun to talk about "civil unions" without coercion and virtual political violence from the bench. So here come the rioters hurling the judicial equivalents of Molotov cocktails.
Even Vermont’s Red Reject, Howard Dean, understood that ensuring that gay couples having equal rights before the courts did not mean that the very word "marriage" had to be destroyed by redefining it into an absurd construct. Not so the Chief Justice of the Massachusetts Supreme Judicial Court, one Margaret H. Marshall, who proclaimed in her "opinion" to the Senate dated February 3, 2004, that "civil unions" are not enough – anarchy is the order of the day, because she wants to nullify the very meaning of the word "marriage" by imposing a bit of historical revisionism and redefining it! This had been her clear intent when she also wrote the court’s opinion in the stage-managed Goodridge v. Department of Health (Nov. 2003). However, the language of her decision had left open some wiggle room for the legislature to address the "rational basis" for her definition of "legitimate state interests" behind state licensing laws in this area. When confronted with a clever and workable response, as unpalatable as that was to the people of Massachusetts, she proclaimed in her "opinion" for the Senate, but that is not enough -- this is really about 14th Amendment "equal protection" and the meaning of the word "marriage!" Here we have a Chief Justice changing her argument like a legislator, and thus revealed to be a mere propagandist for the extreme Left!
Marshall’s opinion in Goodridge (Nov. 18, 2003) declared triumphantly that "it is the traditional and settled role of courts to decide constitutional issues." WRONG! She needs to consider carefully the wording of that statement. "Review" should be in the place of "decide." Somewhere along the line she has come to act like that only the judicial branch has the power to define constitutional norms. The people are left out of that equation. Are we to believe that once a political compact is formed the people, through their legislature or by direct vote, have no power to change it or prevent its demise at the hands of judicial tyrants? Of course not.
In Marshall’s written opinions she conceded many of the critical points offered by opponents, but discards them without a strong historical basis upon which to come down to an argument based on two key elements: "rational basis," which means basically what she perceives in this case with some help from a Canadian court (explored below), and the construction of a novel legal theory that somehow, magically, despite countless opinions from relevant courts to the contrary, the 14th Amendment and the U.S. Supreme Court’s decision in Lawrence v. Texas means that no government has the right to discriminate based on creating "classifications" when it comes to the "basic civil right" of marriage (citing and quoting a case that had nothing to do with the definition of qualifications for marriage licenses titled Loving v. Virginia (1967)). She actually had the audacity to proclaim, as she did in her letter to the Senate on Feb. 3, 2004, that "group classifications" are not constitutional because, supposedly, "the history of our nation has demonstrated that separate is seldom, if ever, equal"! That argument has absolutely nothing to do with the heart of this issue! Indeed, her written opinion in Goodridge actually rested not on a claim of constitutionally "suspect" classification, which would have raised a host of other legal challenges if homosexuals were so categorized, but on the subjective basis of a "rational basis" test on whether she perceived any rational reason for preventing same-sex unions under the marriage laws. Classes for Federal and state discrimination bars are just that – group classifications. The issue is the difference between "equal protection" and equal access. Somehow she appears to have missed the government 101 class that explains that simply because a group asserts a claim of equal access does not mean it is discriminatory policy to reject that claim, or in this case retreat on the issue to rewrite the laws for licensing marriage to be based on "civil unions." If her claims stand a group may emerge in the future which wants to circumvent the legislature to have the MA SJC simply dictate that the laws of Massachusetts must be changed to have their access to the privileges of a marriage license on an "equal" basis. What then of polygamists?
Marshall's arguments in both documents try to play both sides against the middle to construct a pretzel-like figment of a "rational basis." At one point she mentions the obvious -- that Lawrence v. Texas did not change numerous Federal laws which prohibit recognition of same-sex unions as "marriage" (so why then in MA?), but then launched into a key construct of her argument based on the redefinition of "privacy" and the 14th Amendment flowing from that same case. This was quickly followed by the assertion that even though this Federal case has substance for her decision, she proclaims that the people of the Massachusetts have the right, under Federalism, to set a higher standard for individual rights. Which is it? Her decision found that it is none of the above – that the only basis for her attack on reason and liberty is a "rational" test that the state can meet by filling the "legitimate state interests" she had the repugnant pretense to assert on her own. However, in her letter to the Senate, her argument devolved into mere propaganda that homosexual couples face the same "discrimination" that blacks did decades ago. On the Federalism issue she was absolutely right!, but missed the obvious point of the exercise – the MA Declaration of Rights is not beholden to judicial interpretations of what a justice wishes the U.S. Supreme Court had decreed in a particular Federal case (Lawrence v. Texas), or for that matter how a judge wants to rewrite history to fit a rather vulgar and simplistic understanding of race issues and the 14th Amendment in America.
Federal judicial decisions in this area are actually very clear, and conveniently ignored in her opinions – the 14th Amendment has nothing to do with equal access to licenses to any group that might declare itself to be a "classified" group. It was, and is, primarily about preventing the denial of protections based on race (which the Loving v. Virginia case was about). Missing from Goodridge entirely is any kind of analysis or explanation as to why governments have long required blood tests and prohibited relatives from marrying, etc. It is about the children that result, and ensuring that people unqualified to be married – and potentially procreate -- do not obtain the privileges and benefits that go along with such a state-sanctioned license. The key flaw in her argument expounded in Goodridge rests in her conveniently ignoring much evidence on the importance of ability to procreate and have healthy children (vs. case law on the act of doing or attempting to do so, which she distorted to fit this gap in her argument) as a fundamental prerequisite for states to define the qualifications for a marriage license. To argue as she did that the only thing that matters is whether a classification results in unconstitutional discrimination under the 14th amendment is to go down a path that raises still more challenges to the logic and necessity of regulations concerning age, relationship, and other factors mandated by the licensing process. Indeed, consider the alternative. Without procreation as the end result, on what "rational basis" does any government have to grant so many privileges and benefits (from taxes to property transfers, inheritance, etc.) distinct from other forms of social unions? "Civil marriage is an evolving paradigm" is the best she could come up with, along with an ahistorical and flat-out wrong statement that "fertility is not a condition of marriage" (when having male/female unions is a fertility condition!!!). Marshall and Justice Greaney then pipe up, like a tired old refrain, bbbbut the state can’t offer a "rational basis" for denying same-sex unions because there is an "absence of predictable rules of child support…uncertainty concerning whether one will be allowed to visit one’s sick child…in a hospital." The "best interests of the child," declared her riotous associate, are at issue here. Really? A licensing law that was originally intended to preserve the "best interests of the child" and prevent exactly that is now being twisted into a claim that it is inadequate because those seeking to destroy the very institution of marriage and scheme around it find themselves in the entirely expected difficult condition they sought by doing so! Once this deception was proffered, it was an easy step for the cabal to proclaim that redefining civil marriage to "mean the voluntary union of two persons as spouses, to the exclusion of all others" actually advances "two legitimate State interests" – redefined here by the Court as "providing a stable setting for child rearing and conserving State resources." All other interests at stake are, of course, in their argument illegitimate. Now, with this letter to the Senate in hand, it is clear that the only "legitimate State interest" she is concerned about is the destruction of the word "marriage." Forget the law, she’s going after the common law dictionary as a historical revisionist would!
Marshall used the word "rational" quite often in her rant delivered to the Senate. However, one has to ask: where did this judicial power to "refine" common law meaning, rewrite MA law to include the words "persons" or "individuals" as the defining basis for qualifications to apply for marriage licenses, pretend that the legislative history and laws concerning the role of fertility (being able to produce children of sound mind and body) and procreation as qualifications for marriage don’t exist, and reinterpret the U.S. Supreme Court’s reasoning in Lawrence v. Texas to take a case about "privacy" rights and extend it into the wholly unrelated area of licensing all come from? Her argument is absolutely silent about these "rational" tests for her decision. To craft it she had to jump over them, along with a host of legislative and judicial precedents.
Finally, unable to make a persuasive argument in terms of Massachusetts’ legislative or judicial case history, she actually went down the path of radical judicial "comparativism" to use a CANADIAN court’s "rational test" as the broken reed upon which to construct her "rational" basis for refining the "common-law definition of civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." Yes, the argument literally and explicitly came from Ontario. Worse, she cited those actions of the Court of Appeals for Ontario in a 2003 case (part of the radical Left’s global offensive on this subject) as the basis for a claim of presumed powers of judicial right to "refine a common-law principle in light of evolving constitutional standards." What she and the radicals in Ontario mean is that they want to subvert not only legislative intent, but judicial precedents, by engaging in the legal profession’s version of historical revisionism by crafting new common law definitions. Thus, the case does, indeed, come down to the historical meaning of the word "marriage."
The rest of the country needs to know that this agenda is resisted strongly not only by the people of Massachusetts, but also Marshall’s peers. Her radical actions have been vigorously opposed by three defenders of liberty and reason who offered their dissenting opinions (in what was a close case): Justices Robert J Cordy, Francis X. Spina and Martha B. Sosman. In their joint dissent, they stated the obvious: marriage "furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children." Justice Spina added:"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." Justice Cordy noted that Marshall and her followers are "substituting" their "notion of correct policy for that of a popularly elected legislature's responsibility for making it." "Notion" is right. Reading both that opinion and Marshall’s letter to the Senate reveals that while she did an admirable job for a pre-law clerk in throwing up a lot of tangential arguments and citations like flak to cover her lack of "rational basis," or simply the proper legal foundation, the central crux of her argument was pure "dicta," as the legal hawks would say, that is, dictating from the bench. Only in this case the argument doesn’t hold water, not even in Ontario. It is without proper foundation in law. Behind Marshall’s judicial extremism, for which she has roped 3 of the other justices on the Court into supporting, is a radical political agenda grounded in ultra-Left extremism from her native South Africa (having come to the US for a college education). Almost immediately after being thrust onto the SJC in Nov. 1996, without a great deal of scrutiny, she rose quickly to begin her term as Chief Justice in September 1999. Back in early 2003 she was the target of a complaint on "judicial conduct," which was published in MassNews (March 18, 2003), and came from Sarah McVay, the President of Mass. Citizens for Marriage. In it McVay detailed the Justice’s associations with various Center-Left political groups, and in particular those advancing the agenda of the extremist fringe of the homosexual community who appear at times to care more about promoting cultural terrorism than inclusion. It is time that the people of Massachusetts resist being subjected to such lawless tyranny from the bench! The proper response to such actions is to stop wasting time responding on her terms, recognize that she is a judicial amateur and political child of the terroristic Left, and defend the rule of law!. She should be impeached, which our constitution allows for. Once that it is done, men and women of culture and courage can then move to pass legislation making it a crime, with a proposed 5 year minimum sentence, derived from the common law for extortion "under color of official right" for justices to make "materially false statements" about common law definitions and "evolving" constitutional norms in their decisions, or base their decisions on foreign laws and court decisions, or simply legislate without a license in pursuit of the property of the people of the state of Massachusetts, who will, of course, end up in this case having to pay huge tax bills to deal with the resulting explosion in socially maladjusted children that will result from what are potentially millions of gays from around the world who will move to Massachusetts to take advantage of this scheme. In fact, her actions are already against the very "constitution" she claims in Goodridge is "evolving" – as three of her peers decried in their dissents. The people of Massachusetts should "evolve" it right back and put criminal teeth into the passage that says "full power and authority are hereby given and granted" to the legislature, and the people of our great Commonwealth, to make the laws. Indeed, it is high time for Massachusetts to lead the nation in resisting the advance of judicial activism, which has evolved over these past few years into a dangerous frontal assault on liberty and the rule of law.
The Massachusetts Supreme Judicial Court is on entirely new ground, and a world of its own making on this issue. Not even the U.S. Supreme Court or comparable state courts in Vermont and Hawaii have gone as far out into the realm of illogic rooted in ill-will as this cabal in Boston. However, the core agendas of radical activists on all of these courts is actually quite similar – the promotion of open subversion and destruction of the rule of law by creating a convergence of Massachusetts and U.S. law with international laws – but only the ones they like (ignoring, of course, the basic point that such actions violate the social and political compact underpinning their very powers, as well as the very fabric of international law, which is founded upon the bedrock of self-determination and sovereignty). It didn’t take long for the world to see the real agenda behind the seditious cell on the U.S. Supreme Court behind Lawrence v. Texas – Justices Breyer, Ginsburg, and O’Connor all came out of the closet publicly to declare that what was really at stake was a new political order in which the Justices would decide cases divorced from the rule of law and representative government under a doctrine called "comparativism." Through this doctrine they have declared that Federal judges will henceforth be deciding cases by picking and choosing foreign laws and non-ratified treaties upon which to base their decisions – utter lawlessness to transform judicial activism into sedition. "Our" Chief Justice Marshall was even reported to have urged attendees at a 1999 Massachusetts Lesbian and Gay Bar Association to take note of the radical Left’s successes in promoting pro-homosexual international jurisprudence (in fact, only the pitiful and desperate nations of the Netherlands, Belgium, and South Africa have destroyed "marriage" in the manner Marshall proposes – in each and every case through radical "activists" operating with the "mask" of the black robe).
The justices in Massachusetts have less leeway to camouflage their scheme with references to international law or foreign laws, but Justice Marshall clearly took her cue in the Goodridge decision from the Appeals Court in Ontario and Lawrence v. Texas. She even quoted from Lawrence v. Texas in her decision:"Our obligation is to define the liberty of all, not to mandate our own moral code." Here! Here! She should practice what she preaches. If the people of Massachusetts wish to proceed down the path of cultural annihilation and overthrow the right of the people to regulate "morality" then let them pass laws to redefine "marriage," and turn the state into the center of the global nihilist and anti-morality movements. Just keep Marshall’s claws out of it.
Justice Marshall is waging war against the "liberty of all" by acting in the manner she has. Worse, she has clearly launched the MA SJC down a path that is divergent from the U.S. Supreme Court’s campaign for judicial dictatorship and directed instead towards judicial terrorism and anarchy. It is time to call out the legislative police to put an end to this black-robed riot once and for all.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.