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Dwight Duncan -- 05/10/2004 08:44

Last Friday the Supreme Judicial Court issued an order denying the legislators' request to intervene, ruling that "the assertion that the court did not have subject matter jurisdiction is based on the erroneous premise that the case before us constituted a ‘cause[] of marriage, divorce, [or] alimony' within the meaning of the Massachusetts Constitution."

The Massachusetts Constitution, you will recall, specifies that "all causes of marriage, divorce, and alimony...shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision." No one, neither the AG nor GLAD, has been able to specify a legal provision granting jurisdiction to the court to redefine marriage.

So Goodridge, according to the court, isn't a case about marriage after all. Now that is a ridiculous contention, given without explanation or reason, with a straight face. Talk about a lack of rational basis in the law!

Here's what the legislators' reply memorandum said the Wednesday before, which the court assures us it gave "careful consideration of":

Goodridge clearly falls within "[a]ll causes of marriage." In Goodridge, th[e] Court held that the common law understanding of marriage as the union of a man and a woman, which is reflected in the marriage statutes of the Commonwealth, is unconstitutional, and that the traditional definition of marriage had to be expanded to include same-sex, as well as opposite-sex, couples. 440 Mass. at 320-42. The Court redefined marriage to mean "the voluntary union of two persons as spouses, to the exclusion of all others." Id. at 343. If Goodridge is not a "cause of marriage" within the meaning of art. V, it would be difficult to imagine what would constitute a "cause of marriage."

Any doubt on this score was laid to rest by the Court's subsequent advisory opinion, holding that a bill to confer all of the benefits of marriage upon same-sex couples except the name "marriage" itself would not pass constitutional muster. See Opinion of the Justices to the Senate, 440 Mass. 1201, 1207 (2004) ("The bill's absolute prohibition of the use of the word ‘marriage' by ‘spouses' who are the same sex is more than semantic" and "reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status"); see also id. at 1209 n. 5 (referring to "the discrimination that flows from separate nomenclature"). That advisory opinion makes it clear beyond peradventure that Goodridge is a "cause of marriage," indeed, the quintessential "cause of marriage" within the meaning of art. V.

Of course, this is the court that feels free to radically redefine marriage to mean whatever they wants it to mean. That being the case, we should not be surprised to hear that now, when it is inconvenient for their purposes, Goodridge is not about "marriage" at all. You could've fooled us. "Marriage," it turns out, can mean anything or nothing at all. Precisely the problem with the court's whole project. Why have a written constitution, the "rule of law," or deference to judges, when they can act in such an arbitrary fashion?

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more or less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master—that's all."

Dwight Duncan -- 05/07/2004 12:41

Today Anthony Lewis, Mr. Margaret Marshall, holds forth in the New York Times about the importance of the rule of law, a favorite subject of his and his wife. Here's the link to "A President Beyond the Law":

His piece ends with a quote from Justice Brandeis: "Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself."

Good point. But isn't this exactly what has happened in the wake of the Goodridge decision? Mayors and town clerks around the nation defying the law in their haste to marry off the unmarriagable. Worcester's clerk announcing that he will ignore the governor's directive to enforce the 1913 law, and Boston's Mayor Menino strongly suggesting the same. The lawlessness springs from the Court's decision, which disregarded the rule of law in favor of the personal preferences of the four judges in the majority. It's a pure power grab, wresting jurisdiction over marriage from the political branches, to whom it is expressly entrusted by the state constitution.

It turns out that the Lewises, Anthony and Margaret, aka Mrs. Anthony Lewis, author of the SJC's Goodridge decision, are professional pontificators. They are good at telling others what the rule of law entails, but perhaps can't be expected to keep it themselves. And so lawlessness spreads around the commonwealth and the nation, "breeding contempt for the law." "Do as I say, not as I do."

Dwight Duncan -- 05/06/2004 11:26

The Globe today reports breathlessly that two senators, including Cambridge's own Jarrett T. Barrios, are seeking to amend the state budget to repeal the 1913 law that says out-of-state residents cannot get married in Massachusetts in contravention of their own state's law. On the face of it, this doesn't seem a budget matter. But apparently it's not enough that one member of our state's judiciary can impose her preferences for gay marriage on the commonwealth. She's gotta be able to impose them on the nation.

Meanwhile, local attorney Tom Harvey and ACLJ attorney Vince McCarthy filed their reply yesterday to Mary Bonauto and GLAD's response to their motion to vacate for lack of subject matter jurisdiction. While I am hardly a disinterested observer, and my pro-gay-marriage colleague Amy Hunt apparently doesn't like it when I quote from legal briefs, I think the SJC has its work cut out for it in ruling on this motion. (If I were Amy, I wouldn't like the legal arguments either, since they are not exactly in her favor.)

Here's how the legislators' reply memorandum deals with the question of judicial review:

"The Attorney General cites Marbury in support of the proposition that "judicial review of the constitutionality of statutes is at the core of the judicial function." Amicus Memorandum at 5. Similarly, the plaintiffs invoke Marbury in attempting to argue that "[t]his court always has jurisdiction to review acts of the Legislature and public officials for constitutional soundness." Plaintiffs' Opposition Memorandum at 2.

"Marbury, of course, interpreted the federal constitution, not the state constitution. But, even more importantly, the issue in Marbury concerned the Court's own jurisdiction. That is, using judicial review to strike down Congress' unconstitutional attempt to expand the Court's jurisdiction, the Supreme Court ultimately ruled that it did not have original jurisdiction to issue writs of mandamus. Marbury, 1 Cranch at 175-77. Thus, as Marbury itself demonstrates, a court must have jurisdiction prior to addressing even constitutional issues. See Marbury, 1 Cranch at 176 (holding that the Court did not have the power to reach a constitutional issue, the issuance of a writ of mandamus, because the Court did not have original jurisdiction over the matter); see also Ex Parte McCardle, 7 Wall. (74 U.S.) 506, 512 (1869) ("The first question necessarily is that of jurisdiction; for [without] jurisdiction . . . it is useless, if not improper, to enter into any discussion of other [constitutional] questions."); Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 107 (2000) (vacating judgment on the basis of lack of jurisdiction and noting that "[w]e do not reach [plaintiffs'] constitutional claims, having decided the case under principles of statutory interpretation" relating to jurisdiction).

"The effect of the decision in Marbury was thus not to expand the Court's jurisdiction, but to contain it within federal constitutional boundaries. This Court's decision in Goodridge does precisely the opposite-it usurps the Legislature's constitutional authority to determine the classes of cases relating to "marriage, divorce, and alimony" that the courts may hear. The reliance of the Attorney General and the plaintiffs on Marbury is thus not only erroneous but actually self-defeating.

"Marbury is inapposite for another reason. A court normally has jurisdiction to determine whether it has jurisdiction; Marbury simply decided that it did not have jurisdiction to issue original writs of mandamus. In Goodridge, however, this Court exercised jurisdiction over the merits without ever examining its own jurisdiction. The argument of the Attorney General that a court necessarily has jurisdiction to decide a case whenever a constitutional issue is presented is merely question-begging. If constitutional claims automatically trumped subject matter jurisdiction, then that would lead to the absurd result of having no jurisdictional requirement in any constitutional case. A court must first have jurisdiction to even consider an issue before it can decide the issue on the merits. Thus, this Court, like the Marbury Court, has no authority to decide constitutional questions in the absence of subject matter jurisdiction. See Columbia Chiropractic Group, Inc. v. Trust Insurance Co., 430 Mass. 60, 62 n.2 (1999) ("subject matter jurisdiction . . . is a prerequisite to the proper involvement of a court")."

Here's how the memo ends, with a quotation from Ex Parte McArdle:

"In recognizing the constitutional limitations of its own jurisdiction, the words of the Supreme Court of the United States are equally applicable to the Supreme Judicial Court today:

'Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle. . . . It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.'

Ex Parte McCardle, 7 Wall. (74 U.S.) 506, 514-15 (1869) (unanimously dismissed for want of jurisdiction)."

Dwight Duncan -- 05/05/2004 13:43

Yesterday saw another motion to intervene and motion to dismiss filed in Goodridge, this time in the Superior Court. Ambassador Ray Flynn, former Mayor of Boston, and Thomas A. Shields, head of the Coalition for Marriage, are two citizens and voters seeking to intervene to "protect the sovereign will of the people as expressed in their Constitution, and to defend their exclusive jurisdiction to amend that Constitution." Attorney Philip D. Moran of Salem filed for them, along with David Langdon and attorneys from the Alliance Defense Fund.

Here's the ADF press release on the filing:

"According to the motion, the November 18, 2003 Goodridge opinion of the Supreme Judicial Court (SJC), ‘effectively amended the (Massachusetts) Constitution.' Goodridge, decided last fall by the Massachusetts Supreme Judicial Court, redefined the term ‘marriage.' The high court returned the case to Superior Court December 16, 2003.

"In the Goodridge opinion the SJC called its construction of marriage a ‘reformulation' of marriage. However, the term ‘marriage' is in the Massachusetts Constitution, and the authority to amend the Constitution resides only in the people of Massachusetts, not in the courts or any other branch of government.

"'No party in this lawsuit discussed the issue of jurisdiction before the court. Only the people, not the courts can amend the state Constitution. It's certainly not too late to raise it now,'" said Benjamin Bull, chief counsel for the Alliance Defense Fund. ‘At no point during the progress of litigation is it too late to consider whether there is absence of authority to proceed.'"

Here's the heart of their motion to dismiss, which is powerful: "There is no doubt whatsoever by the Supreme Judicial Court, this Court, or any of the parties herein that the definition of ‘marriage' as understood by those who approved the Constitution did not include the notion of a union of individuals of the same sex. Indeed, the Supreme Judicial Court in its decision forthrightly calls its construction of marriage a ‘reformulation.' Goodridge, 440 Mass. at 343; see, also, id. at 337 (noting that the Court's decision accomplishes 'a significant change in the definition of marriage'). This 'reformulation' gave the term 'marriage' a 'meaning which would never [have] occur[red] to a voter in the polling booth [in 1780].' Opinion of the Justices, 324 Mass. at 750. Stated plainly, it effectively amended the Constitution, and specifically Part II, c. 3, art. 5, by redefining what the people there gave to the government to regulate. This is just that form of proceeding which is condemned elsewhere by the Supreme Judicial Court, and indeed also by the very principles of constitutionalism.

"'[The Constitution's] words should be interpreted in a sense most obvious to the common understanding at the time of its adoption, because it is proposed for public adoption and must be understood by all entitled to vote.'" [string of citations omitted].

The Court's jurisdiction over the definition of marriage seems to be its Achilles' heel.

Dwight Duncan -- 05/04/2004 14:58

Yesterday, the Attorney General's Office filed a response to the 13 legislators' motion to vacate the judgment in Goodridge. It makes fascinating reading. Speaking for the defendants Department of Public Health and its Commissioner, who issue marriage licenses, the assistant attorney general says defendants "are interested in having the benefit of the guidance of this Court on the extent of the Executive's constitutional powers in causes of marriage, and accordingly they take no position on the prospective interveners' [the legislators'] motion to vacate."

This filing is accompanied by an amicus memorandum of Attorney General Reilly, however, in which he argues that the motion to vacate judgment for lack of subject matter jurisdiction should be denied. So much for his stated opposition to gay marriage and his vigorously defending the Commonwealth's marriage laws!

To refresh your recollection, the legislators' motion is based on the provision of the Massachusetts Constitution, pt. II, c. 3, art. V that states: "All causes of marriage...shall be heard and determined by the Governor and Council, until the Legislature shall, by law, make other provision."

His response? "This case was not a 'cause of marriage.'"

That doesn't even pass the laugh test, I'll venture. Plaintiffs' attorney Mary Bonauto, who has yet to file a response, has been insistent all along that Goodridge was about the right to "marriage," not anything else. Chief Justice Margaret Marshall made it abundantly clear in Goodridge and in the civil union advisory opinion that only "marriage" would do. So it's not a case of marriage? It would be difficult to think of a case that more centrally addresses what marriage is and what it entails than the Goodridge case.

The AG says that this is not a cause of marriage because "the phrase 'causes of marriage' should not be construed as extending to cases that challenge the constitutionality or validity of statutes relating to marriage." Citing Marbury v. Madison, he says, "judicial review of the constitutionality of statutes is at the core of the judicial function."

I see. Because there is a question of constitutionality, the court has to be able to decide it. But first the court has to have jurisdiction. We should remember what Marbury v. Madison actually held. The case held that the U.S. Supreme Court had no original subject matter jurisdiction to issue a writ of mandamus, because the U.S. Constitution foreclosed it. This is precisely the position of the legislators in their motion to vacate, that the Massachusetts Constitution expressly denies subject matter jurisdiction to the judiciary, since the legislature at no time granted the courts jurisdiction to change the definition of marriage.

The plot thickens. It'll be interesting to see how the court deals with this problem its lack of subject matter jurisdiction. Stay tuned.

Dwight Duncan -- 05/03/2004 09:31

Here's the concluding part of the memorandum filed last Tuesday with the SJC on behalf of 13 legislators documenting the Court's lack of subject matter jurisdiction over the Goodridge case. It'll be interesting (to say the least) how the Court tries to answer this.

Under Part 2, ch. III, art. V, the Governor and Council have exclusive authority over matters pertaining to marriage, "until the Legislature shall, by law, make other provisions." As the case law set forth above demonstrates, this Court has long recognized that the courts have no jurisdiction over marriage matters except and only to the extent that the Legislature expressly confers such jurisdiction. But the only jurisdiction the Legislature has conferred upon the courts (in reference to marriage) relates to divorce, alimony, annulment and affirmation. It is remarkable, therefore, that the majority opinion in Goodridge makes no reference to subject matter jurisdiction. It simply assumed such jurisdiction without examination.

The sole basis for the Court's jurisdiction alleged in the plaintiff-appellants' Verified Complaint ( 12) is MASS. GEN. L. c. 231A, § 1 (declaratory judgments). This statute, however, specifically states that it does not of itself grant subject matter jurisdiction: "The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right." MASS. GEN. L. c. 231A, § 1 (emphasis added). Indeed, the Court has repeatedly held that this statute concerning declaratory judgments does not provide an independent basis for subject matter jurisdiction where none exists. See Pratt v. City of Boston, 396 Mass. 37, 42-43 (1985) ("The plaintiffs are incorrect in their assertion that G.L. c. 231A provides an independent statutory basis for standing or subject matter jurisdiction. General Laws ‘c. 231A, § 1 . . . does not expand the jurisdiction of the courts upon which it confers power to render declaratory decrees.'") (quoting Konstantopoulos v. Whately, 384 Mass. 123, 127 (1981)); Sisters of Holy Cross v. Town of Brookline, 347 Mass. 486, 491 (1964) (Chapter 231A, § 1 "does not expand the jurisdiction of the courts upon which it confers power to render declaratory decrees; the statute makes it clear that this power is conferred on the courts ‘within their respective jurisdictions'"). Thus, the power to make declaratory judgments presupposes jurisdiction by the court.

But the appellants have failed to allege an independent basis for subject matter jurisdiction, and none exists. Jurisdiction in all cases of marriage other than actions for divorce and alimony or affirming or annulling marriage are within the exclusive original jurisdiction of the Governor and Council. This Court cannot abrogate that constitutionally-established authority without an express statute from the Legislature transferring subject matter jurisdiction. Therefore, the judgment in Goodridge should be vacated immediately for lack of subject matter jurisdiction as required by Part 2, ch. III, art. V of the Massachusetts Constitution.

However, if the Court does not immediately vacate its judgment, it should, at a minimum, extend the stay of its judgment because there is sufficient constitutional ambiguity about jurisdiction to merit full briefing and the opportunity for the Legislature and the Governor to be heard on this issue before Goodridge is implemented. A unilateral judicial implementation of the judgment in Goodridge without fully addressing the jurisdiction issue presented and the Court's limited power under Part 2, ch. III, art. V, would be a constitutional affront to the Legislature, the Governor and the People of the Commonwealth.

Moreover, if the Court allows its decision to become final without addressing the issue of its jurisdiction, its judgment would be subject to collateral attack at any time by anyone whose rights would be affected by the Court's decision and who was not a party to the original lawsuit. See Harker v. Holyoke, 390 Mass. 555, 558-61 (1983); Old Colony Trust Co. v. Porter, 324 Mass. 581, 586-89 (1949). Given the breadth and scope of the Court's redefinition of marriage in Goodridge, the number of persons potentially affected by its decision would be enormous. To the extent that their rights and obligations would be adversely affected by Goodridge, they would have standing to challenge the ruling in a collateral attack. It goes without saying that it would be far preferable for the Court to confront the issue of its lack of subject matter jurisdiction now, before its decision takes effect, than after a final judgment has been entered by the superior court.

Dwight Duncan -- 04/30/2004 09:57

Here's the continuation of the legislators' argument to the SJC:

The Legislature has the exclusive authority over transferring subject matter jurisdiction in all cases involving marriage, divorce and alimony:

"All causes of marriage, divorce, and alimony, and all appeals from the Judges of probate shall be heard and determined by the Governor and Council, until the Legislature shall, by law, make other provision."

Mass. Const. Part 2, ch. III, art. V. Thus, the Constitution of the Commonwealth explicitly gives the political branches, not the judicial branch, authority over jurisdiction in marriage cases. Unless the Legislature makes an express transfer of jurisdiction concerning marriage, jurisdiction to determine all causes of marriage, divorce, and alimony resides with the Governor and Council under art. V.

The Legislature has transferred some elements of jurisdiction under this constitutional provision to the courts, but that jurisdiction is limited and certainly does not encompass the definitional issue raised in Goodridge. Under the Massachusetts Constitution, the exclusive original subject matter jurisdiction for deciding cases involving marriage was placed in the Governor and Council, until the Legislature made other provision. Mass. Const. Part 2, ch. III, art. V... The Legislature, however, has "made other provision" only in cases involving divorce, alimony, affirmation, and annulment. The Legislature has not enacted any similar provision to transfer jurisdiction in any other case of marriage such as the definitional issue in Goodridge.

The Legislature has enacted only two provisions transferring jurisdiction under article V: one statute relating to divorce and alimony; and one statute relating to affirmation and annulment. First, in 1785 the Legislature passed "An Act for regulating Marriage and Divorce," which extended jurisdiction to the courts on matters of divorce and alimony. The second to last provision of that act provides "Be it therefore enacted by the authority aforesaid, that all questions of divorce and alimony shall be heard and tried by the Supreme Judicial Court holden for the county where the parties live, and that the decree of the same Court shall be final." 1785 Mass. Acts 69. Second, in 1836 the Legislature extended the court's jurisdiction to questions of affirmation or annulment of marriage. The Revised Statutes of 1836 contain, in the statute pertaining to divorce, a provision providing that if the validity of a marriage was doubted, a libel for annulment was to be filed as for divorce. Mass. Rev. Stat. 76, §§ 3-4 (1836). The Supreme Judicial Court's jurisdiction, therefore, encompassed all cases of divorce and alimony and all cases of affirmation or annulment of marriage.

Since that time, however, there has been no expansion of the subject matter jurisdiction of the court. The subject matter jurisdiction of the court in cases of marriage and divorce remains the same as it was in 1836. Statutes have been passed which transfer jurisdiction within the court system itself, but no statute has been passed which provides for any further jurisdiction by the court. Specifically, there has been no statute or provision by the Legislature granting jurisdiction to the court to hear a case which concerns the definition of marriage in the Commonwealth. Neither has there been any general grant of jurisdiction concerning all causes of marriage to any court. Without such a provision, the Goodridge case should have been heard by the Governor and Council in accordance with the requirements of the Constitution.

This Court has consistently recognized this constitutional restriction on its jurisdiction in cases of marriage and divorce. The Court has always emphasized that an express transfer of jurisdiction by the Legislature is necessary before it has authority to hear such cases. See Loring v. Young, 239 Mass. 349, 366 (1921) (noting that Massachusetts courts do not have general jurisdiction to decide cases relating to marriage without specific grant of jurisdiction from the Legislature); Kelley v. Kelley, 161 Mass. 111, 111 (1894) ("In this Commonwealth, no power exists in any court to pass an order for the payment of alimony pendente lite, or of permanent alimony, in a matrimonial cause of any description, except under provisions of statute conferring such power."); White v. White, 105 Mass. 325, 327 (1870) (asserting jurisdiction over a case involving divorce and affirmation of marriage only after recognizing the constitutional provision and the necessary statutory transfer of jurisdiction by the Legislature). During the last rearrangement of the Massachusetts Constitution, the delegates were explicit in continuing to include Part 2, ch. III, art. V, for "the words constituted an operative article, still in force, which should remain in the Constitution." Loring, 239 Mass. at 366 (citing Volume 4 of Debates, pp. 74 to 80).

Thus, the Massachusetts Constitution and the decisions of this Court are clear: a specific grant of jurisdiction from the Legislature is necessary in order for any court to hear "causes" involving marriage, divorce, or alimony. The Court has interpreted the word "causes" in the marriage provision as being equivalent to ‘"controversies" or "cases."' Sparhawk v. Sparhawk, 116 Mass 315, 317 (1874). Therefore, any court must have a specific grant of jurisdiction from the Legislature before it can hear any cases or controversies concerning marriage. Goodridge is clearly a controversy concerning marriage. It does not, however, fall under any of the categories of controversies over which the courts have jurisdiction. Goodridge is neither a controversy concerning divorce and alimony, nor a controversy concerning affirmation or annulment of marriage. Goodridge presented a question entirely separate from those over which the court has jurisdiction. Goodridge called for a redefinition of marriage. See 440 Mass. at 337 ("Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries."). Such a case does not fall within the current jurisdiction of the Court. In the absence of legislation conferring jurisdiction upon the courts to hear such controversies, the case, or any future similar case challenging the definition of marriage, must be brought before the Governor and Council acting as a court under a constitutional grant of authority.

Dwight Duncan -- 04/29/2004 10:30

Here's the first part of the argument presented by the 13 legislators to the SJC:

The Massachusetts Constitution requires this Court to vacate its judgment in Goodridge v. Dep't of Public Health because the Court lacks subject matter jurisdiction over the case. Under the Massachusetts Constitution, the exclusive original subject matter jurisdiction for deciding cases involving marriage is granted to the Governor and Council, until the Legislature makes other provision through a statutory transfer of authority. Although the Legislature has transferred some elements of jurisdiction under this constitutional provision to the courts, that jurisdiction is limited and does not encompass the issues presented in Goodridge, Because the Legislature has not removed subject matter jurisdiction from the Governor, the Governor, not this Court (or any inferior court), has original and exclusive subject matter jurisdiction over the case brought by plaintiffs.

The plaintiffs in Goodridge, seven same-sex couples, sought and were denied marriage licenses. Their lawsuit challenging the denial of the issuance of the licenses raised two issues: First, whether under current Massachusetts statutes governing marriage, same-sex couples are eligible to obtain marriage licenses. Second, whether, if the statutes do not allow marriage licenses to be issued to same-sex couples, those statutes violate the Massachusetts Constitution. Neither issue falls within the limited subject matter jurisdiction the legislature has conferred upon the judiciary in matters relating to marriage. That jurisdiction is restricted to deciding questions pertaining to divorce, alimony, annulment and affirmation and does not encompass the redefinition of marriage to include same-sex couples. The majority opinion in Goodridge itself recognized that its decision went far beyond the resolution of any issue relating to the validity of a particular marriage and offers the best evidence that the Court's limited jurisdictional powers regarding marriage questions as granted by the Legislature were exceeded. Chief Justice Marshall noted that "[w]e are mindful that our decision marks a change in the history of our marriage law." She further acknowledged that the case raised "a question not previously addressed by a Massachusetts appellate court." The Chief Justice began her substantive analysis with a statement that the justices were "considering the nature of civil marriage itself." She admitted that "[c]ertainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries." Finally, the Chief Justice characterized the court's action as "constru[ing]" and "reformulat[ing]" civil marriage "to mean the voluntary union of two persons as spouses, to the exclusion of all others." Goodridge, 440 Mass. at 312, 313, 321, 337, 343.

Rather than addressing whether a particular licensed marriage was valid by examining the facts before it, the majority moved to the substantive issue of what should constitute the definition or nature of civil marriage in general, and employed an unprecedented judicial remedy that radically changed the legal definition of marriage. Nowhere can there be found the requisite legislative grant of jurisdiction empowering such judicial action concerning marriage.

The question of the Court's jurisdiction to hear the definitional issue presented by the plaintiffs in Goodridge was not presented to the Court by the Office of the Attorney General. Nevertheless, it is properly before the Court because the question of subject matter jurisdiction may be raised and decided at any time, even after judgment has been entered. See ROPT Limited Partnership v. Katin, 431 Mass. 601, 605 (2000) (vacating final judgment for lack of subject matter jurisdiction for "[w]here a court lacks subject matter jurisdiction, the judgment is void and time limitations for raising the issue are inapplicable").

In Goodridge, the Court did not mention the jurisdictional issue. Indeed, the Court made no reference to subject matter jurisdiction in the entire opinion. However, it is the duty of the Court to examine on its own motion whether it has jurisdiction to hear the case, even if the jurisdictional issue is not raised. See The Nature Church v. Bd. of Assessors of Belchertown, 384 Mass. 811, 812 (Mass. 1981) ("Courts and other adjudicatory bodies have both the power and the obligation to resolve problems of subject matter jurisdiction whenever they become apparent, regardless whether the issue is raised by the parties."). Moreover, subject matter jurisdiction cannot be conferred by consent, conduct, or waiver. See ROPT Limited. Partnership, 431 Mass. at 605 ("Subject matter jurisdiction cannot be conferred by consent, conduct or waiver.")...

Thus, in Goodridge, the Court had an independent constitutional duty to consider on its own motion whether the case was within its jurisdiction. The Court failed to fulfill this duty. Yet, a judgment entered without proper jurisdiction over a case, like the judgment in Goodridge, is "wholly void and of no effect." Old Colony Trust Co. v. Porter, 324 Mass. 581, 586 (1949). The Court stated:

"[I]f a statutory requirement of a jurisdictional fact means anything, sound reason would seem to dictate that in general a judgment or decree entered in the absence of the jurisdictional fact must be wholly void and of no effect, and that evidence must be competent to show that the fact was absent whenever anyone attempts to rely upon the judgment or decree or whenever anyone's interests are adversely affected by it. If this were not so, validity would be imparted to a judgment which the court had no jurisdiction to render."

Dwight Duncan -- 04/28/2004 09:46

The Globe seems to be doing its best to hide news of yesterday's motion to the SJC to vacate its judgment in Goodridge, filed by a bipartison group of thirteen legislators. Here's the preamble to the filing. Judge for yourselves if it's newsworthy.

"The Massachusetts Constitution establishes three co-equal and independent branches of government. The legislative power is reposed in the General Court, Mass. Const. Part 2, ch. I, § I, arts. I, IV; the supreme executive power is reposed in the Governor, Mass. Const. Part 2, ch. II, § 1; and the judicial power is reposed in the judiciary, Mass. Const. Part. 2, ch. III. Under the Massachusetts Constitution, no branch of government shall exercise the powers of either of the other two branches. Mass. Const. Part 1, art. XXX. This separation of powers is essential for preserving the rule of law and preventing tyranny—whether from the executive, legislative, or judicial branch. See THE FEDERALIST NO. 47 (James Madison) ("The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.").

"This Court has emphasized the vital importance of ensuring this separation of powers so that the "judicial shall never exercise the legislative and executive powers." Mass. Const. Part 1, art. XXX. Under this principle, each branch of government performs its constitutionally-established functions within its own limited jurisdiction. As the Court has acknowledged, this limitation also applies to the courts. See Opinion of the Justices to the Senate, 383 Mass. 895, 916 (1981) ("[B]oundaries set by the Constitution on our duty to furnish opinions are jurisdictional in nature and ‘must be strictly observed in order to preserve the fundamental principle of the separation of the judicial from the executive and the legislative branches of government.'") (quoting Answer of the Justices to the Council, 362 Mass. 914, 917 (1973)).

"Moreover, the Court has made clear that no branch of government (and most especially the Legislature) may abandon or transfer any of the powers entrusted to it by the Constitution to any other person or group of persons. See Opinion of the Justices to the House of Representatives, 328 Mass. 674, 675 (Mass. 1952) ("Article 30 of the Declaration of Rights provides for the permanent separation of the executive, legislative, and judicial powers in the government of the Commonwealth, and the Constitution, by the various provisions of c. 1, § 1, particularly those contained in art. 4, designates the General Court as the repository of the legislative power. It is fundamental that no one of the three great departments of government can abandon any of the powers entrusted to it by the Constitution or transfer those powers to any other person or group of persons. If this could be done the plan of government laid down by the Constitution could be destroyed.") (emphasis added).

"Therefore, as the duly-elected representatives of the People of the Commonwealth of Massachusetts, Members of the General Court have the responsibility under the Constitution itself to come forth when their legislative power and their constitutional authority have been unconstitutionally abrogated in violation of the Massachusetts Constitution. See Town of Brookline v. The Governor, 407 Mass. 377, 384 n.10 (1990) ("We would be reluctant to tolerate a situation in which allegedly unconstitutional conduct would be free from judicial scrutiny even on the request of an entity most directly affected by the alleged unlawful conduct."); LaGrant v. Boston Housing Authority, 403 Mass. 328, 330 (1988) (concluding that a branch of government has standing in a "claim that [another branch] has violated art. 30 by encroaching on [its] power" for if it "cannot seek judicial relief, then the . . . branch might be foreclosed from protecting its separate powers"). By its assumption of subject matter jurisdiction in Goodridge, this Court has unconstitutionally infringed on the Legislature's jurisdiction as the sole authority empowered under the Constitution to transfer jurisdiction in all cases involving marriage. Part 2, ch. III, art.. V, of the Massachusetts Constitution states:

"All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision."

"In exercising subject matter jurisdiction in Goodridge v. Dep't of Public Health, 440 Mass. 309 (2003), this Court violated both Part 2, ch. III, art. V, and Part 1, art. XXX, of the Massachusetts Constitution. The Court is thus constitutionally required to vacate its judgment in Goodridge for lack of subject matter jurisdiction and remand the case to the superior court with directions to dismiss plaintiffs' complaint."

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