|Dwight Duncan -- 04/26/2004 11:55|
There's a lot of hubbub about the Governor's announcement that he intends to enforce the 1913 law on not recognizing gay marriages for out-of-staters, so that the commonwealth doesn't become the Las Vegas of gay marriage come May 17. There's a pretty good editorial on the subject in today's Herald: "Marriage debate redux," http://news.bostonherald.com/opinion/vi
Prof. Laurence Tribe of Harvard Law, once-upon-a-time legal adviser to Al Gore, gives his opinion in today's Globe: "He called Romney's position ‘wildly implausible' and ‘legally weak.'" http://www.boston.com/news/specials/gay
Finally, there's an interesting op-ed posted on the Wall Street Journal's website: http://www.opinionjournal.com/extra/
|Dwight Duncan -- 04/23/2004 08:44|
At the beginning of her opinion declaring homosexual marriage to be a state constitutional right, Supreme Judicial Court Chief Justice Margaret H. Marshall notes that there is deep-seated division over "religious, moral, and ethical convictions" regarding marriage and homosexuality, but it turns out that is irrelevant. The court is not following the historical view of marriage and homosexuality, nor the view that "same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors." Marshall says: "Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. ‘Our obligation is . . . not to mandate our own moral code.'"
That claim must be tested. As everyone knows, Marshall found the exclusion from marriage rights for homosexual couples to be "incompatible with the constitutional principles of respect for individual autonomy and equality under law." As a remedy, the court "refined the common-law meaning of marriage . . . in light of evolving constitutional standards." The court stayed its judgment for 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion."
As Justice Robert J. Cordy points out in his dissent, "only by assuming that ‘marriage' includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the ‘right' of same-sex couples to ‘marry.'" In other words, Marshall had to first envision "marriage" as encompassing homosexual couples before she could conclude that their exclusion violated the "right to marry" or that the exclusion was "invidiously discriminatory." This is a case of Lewis Carroll's Queen of Hearts: "Sentence first-verdict afterwards." It turns out that the redefinition of the common-law meaning of marriage was not just the remedy but the basis for the circular conclusion that constitutional rights were violated.
Further, changing the common-law definition of marriage is, by its nature, judicial legislation. It is not in the Commonwealth's Constitution. And so we have it: One unelected judge imposing her values on the commonwealth and the nation.
A few years ago, at the time of her confirmation hearing, dissenting Justice Martha B. Sosman testified:
"No one elected me to anything and no one has asked me to run the commonwealth from my courtroom. Making the law . . . is not in my job description. Nothing in our constitution, state or federal, gives Martha Sosman or any other judge the power to inflict her own agenda, political or social, on the people of this commonwealth. I not only believe in judicial restraint, I practice what I preach."
True to her words, Sosman dissented in Goodridge. In her dissent, she writes:
"[T]he opinion ultimately opines that the Legislature is acting irrationally when it grants benefits to a proven successful family structure while denying the same benefits to a recent, perhaps promising, but essentially untested alternate family structure. Placed in a more neutral context, the court would never find any irrationality in such an approach."
Now that the Supreme Judicial Court has issued its decree, what's next? Basically, the same recourse as was had in Hawaii and Alaska—amending the state constitution. With this difference: Massachusetts' procedure for state constitutional amendment is cumbersome, requiring repeated votes of the legislature and the public. The state constitution could be amended no earlier than 2006. This process could not be completed before the expiration of the 180-day period that the SJC gave the legislature. That would require another favorable vote during the next legislative session (2005-2006) from the members of the legislature (both houses convened in constitutional convention) on the Marriage Amendment that was approved on March 29, 2004, as well as approval from the voters by referendum in November, 2006.
|Dwight Duncan -- 04/22/2004 08:46|
Over the years, I have participated in litigation as attorney for amici curiae in opposition to so-called same-sex marriage in Hawaii, Vermont, Massachusetts and New Jersey. I have also co-authored a law review article on the history of this phenomenon entitled "Follow the Footnote, or the Advocate as Historian of Same-Sex Marriage," in 47 Catholic University Law Review 1271-1325 (1998). My testimony today reflects my knowledge and opinion as a constitutional law professor who has followed the litigation on the subject quite closely. It draws heavily on an article I have written entitled "The Federal Marriage Amendment and Rule by Judges," which is scheduled to appear shortly in the Harvard Journal of Law and Public Policy. My testimony does not represent the views of my law school, or any other organization or person.
The subject of today's hearing is "Legal Threats to Traditional Marriage." There are several cases, decided over the past year, that threaten to undermine the age-old consensus of civilization that marriage is uniquely between a man and a woman. First, there is last November's Goodridge case out of Massachusetts: Goodridge v. Department of Public Health, the bold Massachusetts decision requiring the state to recognize marriage between persons of the same sex, which was decided by the slenderest of margins (4-3), which meant that one unelected judge was imposing her values on the Commonwealth, and arguably the nation. The breadth of the holding was inversely related to the slimness of the majority. Last June, the U.S. Supreme Court decided in Lawrence v. Texas to make sodomy a constitutional right and thus forbid the criminalization of private sexual activity between consenting adults. In Canada that same month, the Ontario Court of Appeal legalized gay marriage in Halpern v. Canada, and the Canadian government elected not to appeal the decision to the Supreme Court of Canada but rather to propose enabling legislation to Parliament. Both these cases were cited favorably by the majority opinion in Goodridge.
We are now at an interesting crossroads in the debate over the marital status of homosexual unions. Up until now, the fight has been largely conducted at the state level, with homosexual advocacy groups like Lambda Legal Defense Fund and Gay and Lesbian Advocates and Defenders ("GLAD") bringing suit in state courts under state constitutional claims, and the state attorney generals and defenders of monogamous, heterosexual marriage trying to counter the state constitutional claims of liberty and equality. When homosexual marriage made progress in the courts, as in Hawaii and Alaska, supporters of traditional marriage successfully put forward referendums on state constitutional amendments, defining marriage as between a man and a woman, which passed overwhelmingly. There is such an amendment pending in Massachusetts which, while reserving the term "marriage" for persons of the opposite sex, would grant all the legal incidents of marriage under state law to same-sex couples united in "civil unions." The earliest it could go into effect, however, would be 2006, and the Massachusetts Supreme Judicial Court in Goodridge gave the legislature only 180 days to "take such action as it may deem appropriate in the light of this opinion."
As a defensive measure, thirty-eight states and the federal government have in the past decade enacted Defense of Marriage Acts. The Federal Defense of Marriage Act, enacted in 1996, while proclaiming marriage for the purposes of federal law as only male-female couples, attempts to establish a sort of Maginot Line: states will not be required under the Full Faith and Credit clause of the U.S. Constitution to recognize the homosexual marriage permitted in another state, should that state, be it Massachusetts or New Jersey, decide to recognize homosexual marriage.
The Federal Defense of Marriage Act does not prevent any state from willingly instituting or recognizing homosexual marriage. It purports only to permit the non-recognition of another state's marriage, contrary to the usual principle of "married anywhere, married everywhere." The theory was that homosexual marriage could be contained within the few relatively liberal states that might choose to adopt it.
It is increasingly clear that the Maginot Line will not hold. For one thing, homosexual advocacy groups have already announced that couples will flock from the other forty-nine states and the District of Columbia to the first state the recognizes gay marriage, intending to challenge the Defense of Marriage Act on federal constitutional grounds as inconsistent with either the Full Faith and Credit or the Equal Protection clause.
But the stronger reason that the Defense of Marriage Act is inadequate to protect the definition of marriage is that it assumes, as a practical matter, that American society can long endure two incompatible conceptions of marriage: one, recognized in thirty-eight states and the federal government, which assumes the natural link of marriage to procreation and mother-father parenting, and the other conception, prevalent in a few more liberal jurisdictions like Massachusetts in which marriage might be defined as a form of "friendship recognized by the police." These are fundamentally incompatible conceptions. Advocates on both sides of this issue are in agreement, I think, that attempts at compromise between them, whether in the form of Vermont-style civil unions or in the form of a patchwork quilt of some-jurisdictions-have-one, other-jurisdictions-have-another, are untenable in the long run.
In our national culture, once homosexual marriage is recognized anywhere, there will be enormous pressure to settle for a "least-common-denominator" conception of marriage.
|Dwight Duncan -- 04/21/2004 10:07|
There are two new dramatic moves affecting the SJC: one legal, the other political. The legal one is a petition to stay Goodridge filed before a single justice of the SJC, Justice Ireland, who voted with the 4-3 majority. From the newspaper accounts (I have no inside knowledge), Chester Darling, the hero of the St. Patrick's Day Parade case that won a unanimous Supreme Court decision in 1995, has filed this petition on behalf of C.J. Doyle and his Catholic Action League for Religious and Civil Rights.
The claim is that the interim introduction of gay marriage, before the voters have the chance to weigh in on the pending constitutional amendment in 2006, effectively disenfranchises voters. The logic is pretty simple: If AG Reilly refuses to represent the Governor in this matter, then individual citizens or groups of citizens can request the stay on their own behalf. After all, what is at stake here is nothing less than government "of the people, by the people, and for the people."
The elites think they know better than the consensus of history, world religions and the mass of humanity about the nature and meaning of marriage, and they don't mind forcing this massive social experiment on the commonwealth, regardless of its effects on the common weal. Twenty years from now, when there has been time to accurately gauge the long-term effects of deliberately raising children without a mother or a father in two-daddy or two-mommy households, will we then have indisputable, empirical proof that it wasn't such a good idea after all? That's certainly what happened in the wake of the universal introduction of no-fault divorce throughout the country in the early 70s.
Let's hope the SJC exercises some common sense and issues a stay. Don't hold your breath, though.
The other dramatic move is the political one. Rep. Emile Goguen has announced that he is introducing a bill of address to remove the four justices who voted in Goodridge to radically reconfigure marriage. Interestingly, our state constitution allows for the removal of judges without requiring impeachment, which entails the need of an impeachable offense and trial. All that's required is a majority vote of both houses and the concurrence of the Governor and Council. John Adams, in his boundless wisdom, recognized the danger of judicial tyranny, and inserted this provision into the constitution as a safeguard to ensure that judicial officers be accountable to the people.
When judges violate the social contract, and usurp the authority of the legislature and the executive, then society has greater interests, for the sake of the common good, than assuring their continued job security. In this case, the SJC asserted a jurisdiction that is expressly granted by the constitution to the political branches. The Constitution's Declaration of Rights ends with the mandate that the "judicial shall never exercise the legislative and executive powers." Art. XXX. And if it does so anyway, what then? Rep. Goguen reminds us that there is political recourse.
There's a farcical comment from Prof. Laurence Tribe of Harvard Law School in this month's Harvard Law Review describing the "masterful" Goodridge opinion by Chief Justice Margaret Marshall: "The court divided 4-3, but the fact that an essentially conservative court would take so bold a step so soon after Lawrence [the Supreme Court's recent sodomy decision] is at least some indication of which way the jurisprudential wind is blowing." (p. 1947, fn. 207.) "Essentially conservative court" is priceless. I'm beginning to think that Prof. Tribe may be just a tad out of the mainstream, even if he always seems to be up on which way the hot air is blowing.
Tomorrow I go to Washington, D.C. to testify before a hearing of the House Judiciary Subcommittee on the Constitution on "Legal Threats to Traditional Marriage." If I can, I'll post excerpts on my blog. Recognizing that neither side has a monopoly on hot air, however, I'll try to be brief.
|Dwight Duncan -- 04/20/2004 09:14|
Lawrence v. Texas, which the U.S. Supreme Court decided in the summer of 2003, invalidated state anti-sodomy laws on grounds that "adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. . . . The liberty protected by the Constitution allows homosexual persons the right to make this choice." In so ruling the Supreme Court overturned its 1986 decision in Bowers v. Hardwick.
Most significantly, the Court held that moral disapproval of homosexuality did not constitute a legitimate state interest: "[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." Even Justice O'Connor, who did not join in the substantive due-process overruling of Bowers, agreed with the majority on that point.
Of course, the majority opinion by Justice Kennedy deliberately eschews its implications for marriage: "The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Justice O'Connor in concurrence goes further: "Texas cannot assert any legitimate state interest here, such as . . . preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."
In dissent, Justice Scalia begs to differ: "But ‘preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." He concludes: "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. . . . This case ‘does not involve' the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court."
The majority opinion in Lawrence supports Justice Scalia's contention. Early in the majority opinion, Justice Kennedy writes that because the statutes "seek to control a personal relationship that . . . is within the liberty of persons to choose without being punished as criminals," the State or a court should not attempt "to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects." This sounds remarkably like John Stuart Mill's harm principle, that limitations on a person's liberty are justified only in order to prevent harm to someone. Of course, there is the additional phrase "or abuse of an institution the law protects." There is no authority given for this dicta, and it has the feel of being rigged for the occasion, to reserve for another day the matter of homosexual marriage.
More tellingly, later on, the opinion magisterially quotes what Scalia calls the "famed sweet-mystery-of-life passage." "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." If states or courts should not attempt "to define the meaning of a relationship," because that interferes with "liberty," then who is to say what marriage means? Not only can we write our own vows, we can be as creative as we wish. Then the kicker: "Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." "These purposes" refers back to "the most intimate and personal choices a person may make in a lifetime," which in turn refers back to "personal decisions relating to marriage, procreation, contraception, family relationships, childrearing and education." As such, Justice Kennedy has implicitly forced the recognition of homosexual marriage.
Gay-marriage advocate Prof. Laurence Tribe of Harvard Law School agrees with Scalia's assessment: "Same-sex marriage, as Justice Scalia predicted in his outraged dissent, is bound to follow; it is only a question of time."
This is why, among other reasons, a Federal Marriage Amendment is necessary.
|Dwight Duncan -- 04/19/2004 12:51|
Today Globe columnist Adrian Walker asserts that the "1913 statute revives bias," http://www.boston.com/news/local/articl
This provision prevents out-of-staters from flocking to the Commonwealth in order to export gay marriage to the rest of the nation. As even Adrian Walker recognizes, "there [are] no other states that recognize gay marriage."
He says, "The law was meant to block interracial marriages, then illegal in many states. It's been meaningless since 1967, when the US Supreme Court ruled that banning such marriages is unconstitutional."
What he so freely asserts I freely deny. This provision of Massachusetts law is simply intended to prevent domiciliaries of other states from getting around the public policies of their own states regarding marriage, whether it be age requirements or degrees of kinship prohibiting marriage. It is a principle of federalism in our law of marriage, not a principle of racism. It is by no means unusual in our federal system for states to have such a provision. Otherwise, we would be stuck with a national "least-common-denominator" understanding of marriage. Whatever jurisdiction had the minimum understanding of marriage would dictate to the rest of the country its definition of marriage. Marriage would then truly be just "friendship recognized by the police," in the memorable phrase of Robert Louis Stevenson.
If indeed there were racist motives operative among the legislators who voted for the 1913 law, and I have yet to see any evidence that there were, that in itself would not invalidate the law, which has a perfectly acceptable justification in our federal system of preserving state sovereignty over marriage.
|Dwight Duncan -- 04/16/2004 12:49|
Thirty-one days until the corks start popping in Provincetown! No, the sky won't fall. (It never does, really, no matter what happens, though perhaps 9/11 came close. From the rather fevered rhetoric of the otherwise likeable Arline Isaacson, though, you'd think that the sky would fall if by some chance homosexuals can't marry come May 17.) The facts are that the majority of people in Massachusetts favor a stay, the Governor does, too, but our jackass of an Attorney General won't seek one for ostensible want of a legal basis. He won't make the argument on the Governor's behalf, nor will he authorize an assistant AG to make the Governor's argument (this allows him to have it both ways, like most of our rather craven legislators: nominal opposition to gay marriage but a wink and a nod to special favors for sexual minorities.) So the people, and the Governor, can't get into court to make their argument. Justice Joseph Nolan, who sat on the SJC for decades, thinks the dramatic change in circumstances since the Goodridge ruling justifies the request for a stay, and would be willing to represent the Governor if the AG or the legislature would authorize it. Since when does going to court to ask something violate the "rule of law"? Are terrorists the only ones who can't be denied access to the courts?
Of course, a stay is already in effect. What's the "legal basis" for that other than the court's say-so? Stays are based in equity, anyway, not "law," and it is legalistic in the extreme to rule one out because the amendment hasn't finally passed. (It can't pass before 2006, under our state constitution.) Why isn't the constitutional amendment process contained in the Massachusetts Constitution a "legal basis"? Our Constitution says that all power derives from the people, and all government officials, even the donkeys among them, are accountable to the people.
There's an elephant in the room that no one wants to talk about, but it's the provision of the Massachusetts Constitution granting jurisdiction over "all causes of marriage...[to] the Governor and Council, until the Legislature shall, by law, make other provision." (Pt. 2, C. III, Art. 5). The SJC simply assumed jurisdiction in the Goodridge case, even though the plaintiffs' sole claimed basis of jurisdiction, the Declaratory Judgment Act, is plainly inadequate. The legislature has never in its history granted courts general jurisdiction over marriage, only over specific issues like divorce, alimony, annulment and affirmation (the opposite of annulment.) The Court has simply usurped the power of the political branches here.
No, the sky won't fall come May 17 if gay marriage goes into effect by judicial decree. I would say it's more like a slow-growing, largely hidden cancer affecting our most basic and vital social institution, marriage, and our democratic system of government, that finally metastasizes. Think Roe v. Wade and its poisonous legacy. There could be some notable political fallout. Think Federal Marriage Amendment. Think Sen. Scott Brown.
|Dwight Duncan -- 04/15/2004 12:58|
The big news of the day is the Governor's request for emergency legislation to authorize appointment of a special counsel to seek a further stay of the Goodridge decision. Here's the text of today's press release from his Office, drawn from http://www.mass.gov/portal/govPR.jsp?go
"ROMNEY FILES EMERGENCY BILL TO SEEK GOODRIDGE DECISION STAY: Former SJC Justice Nolan Sees 'Compelling Legal Reasons' for Stay
"Governor Mitt Romney today filed emergency legislation that would enable him to seek a stay of the Supreme Judicial Court's decision authorizing gay marriage in Massachusetts.
"Romney said the legislation is necessary because, following passage of a proposed constitutional amendment defining marriage as the union of a man and woman, the Attorney General declined to seek a stay of the Court's decision, and he also declined to appoint a Special Assistant Attorney General to request the stay on the Governor's behalf.
"Former Supreme Judicial Court Judge Joseph R. Nolan, in a separate letter to legislators, said he has reviewed the case of Goodridge v. Department of Public Health and believes 'there are compelling legal reasons' for the court to issue a stay.
"'The historic action taken by the Legislature in response to the Goodridge decision represents a significant change in circumstances in this case. This change in circumstances cannot be ignored,'" Nolan said.
"Nolan, who served on the SJC from 1981 until his retirement in 1995, has agreed to the Governor's request to assist in the effort to seek a stay.
"Romney said the legislation 'will allow me to protect the integrity of the constitutional process' and 'preserve the right of the citizens to make this decision rather than having it made for them by the Court.'
"Meanwhile, the Registry of Vital Records and Statistics will today release a letter to city and town clerks notifying them of regional information sessions that will provide a forum for instructions on how to proceed with gay marriage should the Governor be unsuccessful in obtaining a stay of the Goodridge decision.
"The Court stayed its original decision issued in November for 180 days to allow the Legislature to act 'as they may deem appropriate.' Subsequently, the Legislature voted in favor of a proposed constitutional amendment that directly contradicts the Court's decision by defining marriage as the union of a man and woman.
"Under Massachusetts General Law, Chapter 12, Section 3, the Attorney General has control over the conduct of litigation involving the Commonwealth, which includes the power to make policy determinations regarding legal strategy.
"The Governor's bill would carve a narrow exception to this law for the purpose of allowing the Executive Branch to appear before the SJC in the Goodridge case to request a further stay of the entry of judgment.
"'I have introduced legislation to change the law, in just this one case, so that I can put the argument for a stay before the court directly, and ask them to respect the Legislature's action, the constitutional process and the will of the people,' said Romney."
More on this tomorrow.
|Dwight Duncan -- 04/14/2004 12:06|
Last Sunday the Los Angeles Times published a front-page story about their latest poll on homosexual marriage. The findings are worthy of note. While there has been growing acceptance of homosexuals ("the stigma of being gay is disappearing," one demographer was quoted as saying), 72% oppose same-sex marriage. This is a dramatic shift in the wake of the Goodridge decision and the renegade actions of mayors and town clerks in places like San Francisco. (A Dec. 10, 2003 CBS/New York Times poll had found 61% opposed to gay marriage, which was itself up from 55% last July.) Fifty-one percent of Americans support President Bush's proposed Federal Marriage Amendment.
Public opinion, however, does not mirror the opinions of our elites in the bar, the media and the university, who are bent on undertaking this social experiment, preferably with no questions allowed. Amicus briefs in Goodridge supporting same-sex marriage were filed by both the Massachusetts Bar Association and the Boston Bar Association, indicating support from the leadership of the organized bar. Furthermore, a number of the top Boston law firms served as counsel for amici supporting same-sex marriage, whereas the amicus briefs opposing homosexual marriage, though greater in quantity, and, I would argue, in quality (the Mass. Bar Association brief was a late-filed disgrace), were filed by sole practitioners or small law firms as counsel. This prestige disparity between the law firms filing their respective amicus briefs indicates that the elite of the bar are firmly on one side of this controversial issue.
The elite media, from the New York Times to the Boston Globe and the Harvard Crimson, are firmly on one side of this issue, as is all too evident.
Just yesterday, there was a roundtable discussion on gay marriage at U Mass-Dartmouth that, incredibly, featured only one side of this deeply controversial issue, according to today's report in the New Bedford Standard-Times. The article, by Aaron Nicodemus, is entitled "UMass gay marriage forum becomes one-sided rally" http://www.southcoasttoday.com/dail
Here's what he reports: "A press release for the discussion said the sponsoring professors ‘had a responsibility to help educate our students, as well as the broader UMD and surrounding communities, about current events in an effort to shed light on important public issues; in particular, to help demystify public discourse and go beyond the rhetoric surrounding the same sex cultural debate.' But there were no speakers at the discussion who opposed gay marriage, and only material on how to support the cause of gay marriage was available."
Just occasionally, the true state of affairs peeps out. There's an interesting opinion piece in yesterday's Harvard Crimson by Travis R. Kavulla, http://www.thecrimson.com/article.a