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No court ruling on same-sex marriage

US justices won't hear Mass. case

The US Supreme Court declined yesterday to hear a challenge to same-sex marriages in Massachusetts, dealing a second setback to a group that has been trying to put a stop to those marriages since before they began in the state on May 17.

The justices were asked to overturn the Massachusetts Supreme Judicial Court ruling legalizing same-sex marriage, on the grounds that the seven justices of the state's highest court had exceeded their authority under the US Constitution and violated the principle of separation of powers by usurping the jurisdiction of the Legislature.

The US Supreme Court declined to consider the case, without comment. Lawyers on both sides said the court's refusal to take the case is no indicator of where judges in the nation's highest court stand on the issue of same-sex marriage.

Rather, legal specialists said, it reflects the court's reluctance to wade into the matter while it is still such a fresh source of controversy nationally. It also indicates that the arguments used by the plaintiffs in this case were weak, said Eugene Volokh, a professor of law at the University of California at Los Angeles.

"There are lots of reasons the Supreme Court could refuse to hear a case," said Volokh, who specializes in constitutional law. "However, in this case, it's pretty clear: The Massachusetts Supreme Judicial Court decided that the Massachusetts Constitution mandates recognition of same-sex marriage, and the Massachusetts Constitution is the business of the Massachusetts courts. The US Supreme Court will not intervene on matters that have only to do with state law."

The court hears only about 80 of the more than 5,000 cases put before it each year.

The case was brought by the Florida-based Liberty Counsel, a nonprofit group that fights for conservative causes around the country, on behalf of Robert Largess, vice president of the Catholic Action League of Massachusetts, and 11 Massachusetts lawmakers who oppose same-sex marriage. The chief counsel for that group vowed to fight on yesterday, not just in the courts, but also for a federal constitutional amendment to ban same-sex marriage.

"This case is a minor skirmish in the overall issue of same-sex marriage," said Erik Stanley, the group's lawyer. "The Liberty Counsel is involved in more than two dozen cases across the country on same-sex marriage, and we will continue to defend traditional marriage in those cases. The decision today underscores the need for a federal marriage amendment to define marriage as between one man and one woman."

The federal marriage amendment, as currently worded, would nullify the SJC decision, Volokh said, though it is unclear what the effect of the amendment would be on couples who have already married. Earlier this year, President Bush urged passage of the federal amendment, and since winning reelection he has vowed to help push it forward.

Yesterday, in response to the US Supreme Court action, White House spokesman Scott McLellan said, "The president remains firmly committed to moving forward on a constitutional amendment that would allow the voice of the people to be heard."

Advocates of same-sex marriage were pleased by yesterday's development, said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders, which represented the seven gay and lesbian couples who won the right to marry in Massachusetts in the November 2003 SJC ruling.

"Today's result was inevitable, and I don't think it tells either side anything in particular," Buseck said. "Except that no court, not even this Supreme Court, is going to entertain wild claims like this and reach out to intervene and overturn what the SJC has done. They just didn't see any appropriate basis for doing that."

It was not the first time the US Supreme Court has been approached by this group of plaintiffs. Days before the first same-sex marriages took place in Massachusetts on May 17, Liberty Counsel lawyers sought an emergency injunction preventing them, racing to the nation's highest courts just hours after lower courts rejected similar requests. If people of the same gender were allowed to wed, "marriage as universally understood for millennia of human history will be forever changed; chaos will ensue," the Supreme Court was told in a 40-page brief.

The Supreme Court denied that request for an injunction on the weekend before the start of same-sex marriage in Massachusetts, prompting celebration among gays and lesbians and arally by several hundred opponents of same-sex marriage, who vowed to continue their fight.

Two days later, the first gay and lesbian couples wed, but the Liberty Counsel suit survived, its aim shifted to overturning the SJC ruling.

"The issue is, the people of Massachusetts were harmed by the Supreme Judicial Court's decision there establishing same-sex marriage," Stanley said. "The republican form of government is a fragile thing, and it depends on each branch of government respecting its limitations. When one branch of government does not respect its limitations, when it usurps power it has not been given, there is no recourse for the people."

The core of the plaintiffs' argument, that the Supreme Judicial Court had usurped the powers of other branches of government, was difficult to argue, said Merita Hopkins, corporation counsel for the City of Boston who filed a brief in the case defending the SJC decision. (In addition to the judges of the SJC, the plaintiffs sued the Boston city registrar, all Massachusetts municipal clerks, and the state Department of Public Health.)

"Their argument was that the Supreme Court basically usurped the jurisdiction of the Legislature, and we said we thought there was a separation of powers here in the Commonwealth, as demonstrated by the fact that the Legislature, in response to the court's decision, has moved towards an amendment," Hopkins said.

Earlier this year, a narrow majority of lawmakers approved an amendment to the state constitution that would restrict marriage to heterosexual couples, while allowing civil unions. If they approve the measure again in the next legislative session, the ban will be put before voters in 2006.

A spokesman for Attorney General Thomas F. Reilly, who defended the SJC judges, applauded the Supreme Court's action yesterday.

"We believe that the Supreme Court acted appropriately in declining to hear this case," Corey Welford said. "Whether Massachusetts law requires same-sex marriage licenses is purely a state issue, based on the state's constitution, and should be free from federal court intervention."

Since May 17, more than 4,200 gay and lesbian couples have obtained marriage licenses in Massachusetts, according to the Registry of Vital Records. The start of same-sex marriage here fueled a rush of legal and political activity across the nation. Thirteen states passed same-sex marriage bans this year, and some analysts believe the issue helped galvanize conservative voters on Election Day. The US Supreme Court is reluctant to wade into a controversy when it is still so hot, Hopkins said.

"If you look at the Supreme Court and how they make decisions on what to review, they let new issues usually play out for a while before they take them, and this is a relatively new issue," she said. "They will probably sit and observe to see what happens throughout the states regarding marriage and civil unions and also what happens federally, before they decide to render an opinion."

But it is inevitable that the issue will reach the nation's highest court, said Stanley of Liberty Counsel.

"Eventually, the US Supreme Court will hear a same-sex marriage case," he said. "There are too many cases down below, and you're going to end up with conflicting decisions. The US Supreme Court is going to have to take it up."

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