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To: CharlesWayneCT

“So it is clear that the court order was an order that changed the interpretation of the law, and that the legislature knew this was the case.”

Charles, this is a simple case of fact or fiction.

Please provide the quote from the Goodridge case in which the court orders Romney to (1) change “husband” and “wife” to “party A” and “party B” or (2) instruct local justices of the peace to either perform homosexual “marriage” ceremonies or resign.

If you can provide the quote from Goodridge so ordering Romney, I concede.

If you cannot...


91 posted on 12/27/2007 10:23:43 AM PST by AFA-Michigan
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To: AFA-Michigan
Court Ruling, Pdf Form

First, here's the money paragraph from the summary of the ruling:

The opinion reformulates the common-law definition of civil marriage to mean "the voluntary union of two persons as spouses, to the exclusion of all others. Noting that "civil marriage has long been termed a'civil right,"' the court concluded that "the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare."
So the summary indicates that they "reformulated" the meaning, which means they simply changed what the words in the existing laws MEANT. Which means what previously was thought to restrict same-sex unions would NOW allow same-sex unions. No new law was needed.

Let's go to the actual ruling, since you might argue the summary isn't enough. But before we do, let me see if I can talk you into understanding why it HAS to be so, based on logic.

Several same-sex couples tried to get married under the existing law. When they were refused, they sued saying the constitution required they be accepted. What were they suing for? The right to get married, UNDER THE CURRENT LAW.

So when they "won" the court case, for "win" to have any meaning, they must have been granted the right to get married under the current law.

In fact, the appellate court denied their motion, saying that the law could not be interpreted as allowing same-sex unions. It was this ruling that the supreme court overturned, ruling instead that the law HAD to be interpreted as allowing same-sex unions.

It gave the legislature 6 months to make any changes they thought necessary to the law, and at the time the news reported that "Analysts said the state Legislature could write laws legalizing same-sex marriages, or it could do nothing and let Tuesday's ruling go forward." In other words, they could actively change the law, or just let the court's intepretation of the law take effect.

OK, to the actual ruling, in the request for relief section (that's the part where the court says what it will DO for the plaintiffs, given that they have prevailed on the merits of the case:

We consider next the plaintiffs' request for relief. We preserve as much of the statute as may be preserved in the face of the successful constitutional challenge.
In other words, they are CHANGING the law, by court order, but only as much as the need to. So to those who argue the court can't change the law, but only the legislature, that point is already dismissed.
Here, no one argues that striking down the marriage laws is an appropriate form of relief. Eliminating civil marriage would be wholly inconsistent with the Legislature's deep commitment to fostering stable families and would dismantle a vital organizing principle of our society.
One way a court can deal with a law found unconstitutional is to negate the law. Doing so would mean nobody could get married until the legislature wrote a new law which met the court's ruling of constitutionality. But the court notes that this is a too-drastic act.
We face a problem similar to one that recently confronted the Court of Appeal for Ontario, the highest court of that Canadian province, when it considered the constitutionality of the same-sex marriage ban under Canada's Federal Constitution, the Charter of Rights and Freedoms (Charter). See Halpern v. Toronto (City), 172 O.A.C. 276 (2003). Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others." Id. at, quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866). In holding that the limitation of civil marriage to opposite- sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. See Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming the common-law rule of construction of "issue"); Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal immunity)
It's not important that you understand this paragraph, as the next one will make clear what they DID, and this just explains how they did it. But in case you are interested, they used Canadian court precedent. Finding that marriage is a common-law concept, their remedy will be to "refine" the common-law principle.

In other words, they argue that when the legislature wrote "man and woman", they weren't really insisting on man and woman, but merely repeating a common-law construction based on the norms of that time. Now, in light of new constitutional imperatives, they will amend that common-law construction to reflect modern norms.

I'm not saying I agree with them in fact I don't, but that is what they are doing -- revising the meaning of the words "man and wife" in the law so it means "personse".

OK, now for the money paragraph. In what way are they amending the law by court decree?:

We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983).
And there it is. By that paragraph, the court rules that, whenever the law says "man and woman", it MEANS two people of either sex. There is no need to change the law, the court determines that the law's use of "man and woman" was merely a common-law construction, which should have this new meaning in light of the state constitution.

They go further in explaining how this will effect marriage in the state:

In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.
The court rules that these couples, and all other couples, will be allowed to get married. They stay their ruling for 180 days in order to allow the legislature to do whatever it wants. Note they said the legislature still has the right to regulate marriage, so the legislature could have vacated marriage altogether, or even tried to come up with a new wording of man and wife that would clearly mean they wanted to restrict marriage, rather than being a common-law construction.

The legislature was NOT required to change the law in order for the court ruling to take effect. The court ruling gave people the right to get married. They simply delayed things for a bit in case the legislature wanted to try to stop them.

I hope this has been educational for you and the many others who have commented on this case, coming to the wrong conclusions based on well-meaning but incorrect statements by people we sometimes trust to understand legal matters.

94 posted on 12/27/2007 11:21:27 AM PST by CharlesWayneCT
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