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Dwight Duncan -- 04/12/2004 12:29

I think marriage is important today, as it always has been, principally because it is society's preferred vehicle for bringing children into the world and providing them with both a mother and a father. But didn't marriage as a civil institution long ago sever its link to procreation and the raising of children, given the widespread acceptance of contraception, abortion, divorce, in vitro fertilization, and single parenting? Well, marriage matters because children matter. Children, even test-tube babies, can only come about through the union of male and female. Common sense, as well as the documented bad effects of, say, fatherlessness, says that children are best raised by a mother and a father united in marriage. Same-sex couplings cannot produce children, nor can they provide children with both a mother and a father. This is a matter of physiology. It is not bias to notice that there is a difference in meaning between reproductive intercourse, the quintessential "fact of life" where procreation is possible, and other sexual encounters for pleasure.

One doesn't need a license from the government to be friends with someone, or even to live together. You don't need government permission to break off a friendship, but you do to get a divorce. The link to the procreation and education of children is why marriage, uniquely among types of friendship, is given public recognition, and freighted with special rights and duties. Extending marriage to homosexuals would completely sever the already tenuous link between marriage, procreation, and mother-father parenting.

Dwight Duncan -- 04/08/2004 12:27

I'm taking a cue from my colleague Amy Hunt (Hi, Amy!) and taking a breather from the blog business for today and tomorrow. This is the holiest season of the year for Christians (today the Sacred Paschal Triduum begins for Catholics and others), while for Jews it is within the week-long observance of Passover. Not a bad time to (at least temporarily) lay aside the cudgels of controversy and wish everyone, of whatever race, creed, color, sex or sexual orientation, abiding happiness and peace. This is also my week off from teaching law, and I hope to get something of a break in the few days that remain of "vacation." I'll be back at it, though, on Monday.

Dwight Duncan -- 04/07/2004 12:02

Yesterday's Globe reported that "52 percent of people surveyed supported Romney's efforts to ask the...Court to stay its ruling legalizing gay marriage. Forty-two percent opposed the governor's plan." So Reilly, it appears, is the one on the wrong side of history. Not a good omen for his gubernatorial ambitions!

Indeed, in spite of Reilly's assertion that there is no legal basis for a stay, there are plenty of good reasons, legal and equitable, to extend the current stay. The Court in Goodridge issued a stay of 180 days to "to permit the Legislature to take such action as it may deem appropriate in light of this opinion." The Legislature's response has been to pass favorably on a constitutional amendment to overturn Goodridge, without enacting laws, or amending laws, to implement the decision. The question immediately arises: Which laws, among them the constitutional laws regarding the amendment process, should the Governor now enforce?

Legal ambiguity is at the heart of the Goodridge decision. In finding the common law definition of marriage to be a violation of equal protection under our state constitution, and unconstitutionally discriminatory, the Court recognized that that stopping the issuance of marriage licenses altogether for everyone would solve the discrimination problem, as indeed an Oregon county has done on an interim basis.

Judge Spina in dissent argued: "The remedy that construes gender-specific language as gender-neutral amounts to a statutory revision that replaces the intent of the Legislature with that of the court. Article 30 [the separation of powers section of the state constitution] permits the court to apply principles of equal protection and to modify statutory language only if legislative intent is preserved. Here, the alteration of the gender-specific language alters precisely what the Legislature unambiguously intended to preserve, the marital rights of single men and women. Such a dramatic change in social institutions must remain at the behest of the people through the democratic process."

Allowing time for the constitutional amendment process to run its course simply respects the fact that all power derives from the people in a democracy. The plaintiffs in Goodridge had to wait two-and-a-half years from the filing of the complaint in the case until the judgment. Indeed, the SJC in issuing its decision took an additional four months beyond their existing 130 day guideline. The Court then stayed entry of judgment for another six months to allow the legislature to act. To wait another two-and-a-half years years to allow the people to amend the Constitution, when they have indicated a desire to do so, simply reflects the fact that judges "are," in the words of the Constitution of the Commonwealth, "at all times accountable to [the people]." (Mass. Const. Art. V).

Without a stay, the unilateral implementation of the Goodridge decision would be seen as a circumvention of the Amendment process. The Boston Globe recently reported that Attorneys General Bill Lockyer of California and Eliot Spitzer of New York both decided to uphold traditional marriage laws even though they "personally would like to see the law changed" because "[t]he decisions so far-all by Democrats-are only one step amid pending court decisions, ongoing attempts in several states to amend their constitutions to ban gay marriages, and President's Bush's effort." Requesting an extension of the stay is an example of this type of reasonable and balanced approach.

If there is no extension of the stay and the amendment then passes, children to same-sex couples could go from having parents or guardians that are not married, to parents and guardians that are married, and then back to parents and guardians that are not married within just a two-year span. Homosexual parents may even rely on the issuance of marriage licenses in their decisions to adopt or artificially procreate children. All of these children will be tangibly and emotionally affected by the frequent flip-flops in the law.

Further complicating this already opaque picture is the distinct possibility that, if there is no stay and the amendment is passed in 2006, the Commonwealth could be confronted with the awkward situation in which some homosexual couples, who married in the interim, might still be considered married, while future, otherwise identical homosexual couples, who did not marry in the interim, would not be allowed to marry. An earlier version of the amendment contained a retroactivity clause which automatically converted existing same-sex marriages into civil unions if and when the constitutional amendment passed. However, no such provision exists in the version of the Amendment that passed.

Yep, there's plenty of grounds for a stay.

Dwight Duncan -- 04/06/2004 12:57

A wave of lawlessness swept the country in the wake of the SJC's Goodridge decision. From "sea to shining sea," from New Paltz, New York, to San Francisco, California, mayors and town clerks decided to violate the law that says marriage is only between a man and a woman. Unlike that lawlessness, the Massachusetts experiment in ordered liberty comes wrapped in the appearance of legality, the 4-3 Goodridge decision written by Margaret Marshall. (I say appearance advisedly, for the decision lacks a necessary premise for legality, which is that the court had subject matter jurisdiction over the definition of marriage, entrusted expressly by our state constitution to the political branches but not the courts.)

One of the responses has been President Bush's proposed Federal Marriage Amendment (FMA), to settle the matter on a national basis. Bad news locally for marriage as it has been traditionally understood translates into good news nationally for the prospects of the FMA.

Just as the Massachusetts Bar Association aided and abetted the SJC's unconstitutional power grab in Goodridge, and opposes any effort to amend the state constitution in its wake, the American Bar Association opposes the Federal Marriage Amendment. ABA President Dennis Archer, as noted in the March 2004 Barwatch Bulletin of the Federalist Society, "submitted a statement to the Senate Judiciary Committee's Subcommittee on the Constitution" regarding the FMA.

Archer stated that states historically "served as the laboratory of experimentation in crafting ways to respond to changing societal views on issues involving minority groups." He wrote that "a constitutional amendment in this arena would be counterproductive and harmful to the democratic values enshrined in our constitution."

Of course, the ABA did not take such a line on the old Equal Rights Amendment, which it supported notwithstanding its effects on states rights and the democratic process.

Archer's big whopper, though, is his statement that "In the more than two centuries since the Constitution was adopted, the freedoms it guarantees have only been expanded and reinforced. We must not as a Nation go backward by writing into our cherished national charter, for the first time, a provision denying rights to one group of Americans." Well, how about the Thirteenth Amendment's abolition of slavery, which took away the Dred Scott decision's constitutionally guaranteed "right" of slaveholders in their "property"? Limiting the "rights" of some properly increased the rights of others.

When the Supreme Court in Roe v. Wade read the right to abortion into the U.S. Constitution, did that decision really "only expand and reinforce" the rights of unborn children? Simplistic "rights talk," which assumes the very matter that must be established, is not particularly helpful in this debate.

And doesn't reading a right to same-sex marriage into our state constitution effectively deprive children of their natural right to be raised by their mothers and fathers?

Dwight Duncan -- 04/05/2004 09:50

There is an underreported underside of the same-sex marriage/civil unions debate, which highlights how much is at stake. Sometimes hidden motivations and intentions can tell you much about what is really going on, even if there is no mention of them in lawyers' briefs and published court opinions. In the summer of 2003, Michael Bronski, a homosexual journalist and self-described "queer activist," wondered aloud in a Boston weekly, "Are we just not the marrying sort? Maybe we should be campaigning for open marriage, or marriage with a tricking-on-the-side option, or the we-just-want-the-economic benefits-but-have-no-intention-of-actually-being-traditionally-married marriage...Fighting for marriage is like fighting over yesterday's leftovers, rather than coming up with something new and better." ("Over the Rainbow," Boston Phoenix, Aug.1, 2003, at 21.)

I first became aware of what I will call the "trashing marriage" argument by attending a conference at King's College, London in 1999, listening to a parade of international law professors sympathetic to the legal recognition of same-sex unions, some of whom suggested an approach that would effectively "destroy" marriage. For example, Professor Rebecca Bailey-Harris of the University of Bristol, England, provocatively asked, "Is it right to deny lesbians and gay men the right, from a position of equality with heterosexuals, to opt for an institution, however worthless I personally happen to regard it?" (emphasis added.) (It is of more than passing interest that the published proceedings omitted her personal testimonial.)

Obviously moving into a neighborhood and then trashing it does not resonate with the general public, so the more presentable advocates of same-sex marriage publicly disavow such claims. And it is certainly the case that here in Massachusetts the advocates of gay marriage have trotted out attractive, poster couples who clearly mean well by their children. Professor Nicholas Bamforth of Oxford University, though, noted at the London Conference that according to arguments of radical liberation/queer rights advocates "existing concepts of partnership and marriage could be subverted and radically altered by ‘official' recognition of socially controversial interpretations of those concepts—for example, by the law recognizing such institutions as being open to persons of the same sex." Interestingly, though, the published version of his presentation omits this discussion of "gay liberationist or queer theory arguments." (Nicholas Bamforth, "Same-Sex Partnerships and Arguments of Justice," at 32-33 in Legal Recognition of Same-Sex Partnerships, ed. Robert Wintemute and Mads Andenaes, Portland, OR: Hart Publishing Co., 2001.)

Advocating the destruction of marriage is just not helpful to the cause. It doesn't play well in Pittsfield. It startles the horses.

Indeed, one of the presenters at the London conference was left out of the published version entirely, Prof. Kendall Thomas of Columbia University's law school, who argued passionately against same-sex marriage, on the controversial grounds that non-normative, "non-marital relationships have produced a vibrant queer culture." He lamented that achieving same-sex marriage would tend to domesticate the gay and lesbian movement.

Nor are such views the idle speculations of academics in London. Professor Judith Stacey of the University of Southern California, at a March, 2003 panel discussion provocatively subtitled "Beyond Marriage?" at New York's Hofstra University, said: "I believe that lesbian and gay forged intimacies in the US are at the vanguard of the post-modern family condition. My proposal to the lawyers and policy wonks would be to help me implement something like registered kinship. I want to include marriage as one legal form, pluralize it, including same-sex marriage. I would accept polygamy, as long as there's clear criteria of consent and exit. I agree we won't get rid of marriage as a political or cultural phenomenon and don't object to it legally, as long as we legally pluralize it and make visible and support all forms of it."

The New York Times reported from Toronto at the end of August, 2003, that "many gays express the fear that [gay marriage] will undermine their notions of who they are. They say they want to maintain the unique aspects of their culture and their place at the edge of social change." (Clifford Kraus, Now Free to Marry, Canada's Gays Say, ‘Do I?,' N.Y. TIMES, Aug. 31, 2003, at A1.) The article quotes gay skeptics of marriage: "Personally, I saw marriage as a dumbing down of gay relationships;" "Will queers now have to live with the heterosexual forms of guilt associated with something called cheating?"

Regardless of the effect of homosexual marriage on gay culture, there can be no doubt that a number of voices would like to destroy marriage altogether. There are significant questions about what recognizing homosexual marriages would accomplish, not just for the relatively small percentage that would choose it of the relatively small percentage of homosexuals in the population, and their children, however acquired, but for marriage and for society at large, which after all depends for its future on the procreation and education of children.

Dwight Duncan -- 04/02/2004 11:55

I never cease to be amazed at the intolerance of the so-called liberals. Eileen McNamara, in her column a couple of days ago in the Globe, argued passionately for the removal of the tax-exempt status of the Catholic Church. The reason? The Catholic Church's firmly stated opposition to same-sex marriage. The Catholic Church has the audacity to disagree with Eileen's view of the subject, and so must be punished.

She objects to alleged "threats directed at lawmakers," and then proceeds to threaten the Church. She is shocked that legislators might have to answer for their votes on gay marriage to their constituents come November, and that the Pilot dares remind them of that simple fact of life in a democracy. How much simpler it would be if the world could be ruled by liberal columnists like herself.

Solicitous of state constitutional rights, has she forgotten Article Two of our constitution's Declaration of Rights? It provides that "no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship."

In early March, I co-signed a legal opinion letter along with Prof. Mary Ann Glendon of Harvard and four other law professors that expressed concerns about the version of the Travaglini Amendment then before the constitutional convention. (A slightly revised version of the amendment passed on Monday.)

One of the things we said then was that "churches and other religious organizations that fail to embrace civil unions as indistinct from marriage may be forced to retreat from their practices, or else face enormous legal pressure to change their views. Precedent from our own history and that of other nations suggests that religious institutions could even be at risk of losing tax-exempt status, academic accreditation, and media licenses, and could face charges of violating human rights codes or hate speech laws."

Thank you, Ms. McNamara, for turning us into prophets. I'm reminded of a song from the Mad Show: "We're gonna stamp out hate, poke it in the eye, shoot it in the stomach yelling die, die, die. We'll pull its insides out, and look at what it ate. We're gonna stamp out hate." And this from those habitually urging tolerance, diversity, respect for differences.

Dwight Duncan -- 04/01/2004 10:06

Our local media pundits (who, by the way, favor gay marriage) are beside themselves that the Governor has had the audacity to request the Attorney General to seek a further stay of the Goodridge decision.

I like the comment from the Wall Street Journal's Best of the Web editor James Taranto: "Paul Martinek, editor of Lawyers Weekly USA, doubts that the Supreme Judicial Court would agree to delay its ruling until 2006. ‘That's just too long a period of time to expect people to wait for what the court has said is a fundamental right,' he tells the AP. The Massachusetts Constitution, where the four justices claim to have found this ‘fundamental right,' was ratified in 1780. It's one thing to expect people to wait 224 years for the fundamental rights, but 226 years? That's just plain oppressive."

Even the Globe's Scot Lehigh, in the course of concluding that "Reilly Wins Romney Duel," said, "Now, whatever one thinks of the governor's course, given the momentousness of this issue, Reilly might better err on the side of letting all arguments be heard and thus, having made his own stand clear, appoint a special assistant
attorney general to represent the governor before the SJC, as Romney formally requested yesterday afternoon. That would at least give the state's chief executive access to the high court." Amen to that.

He also quotes Reilly: "We have made every conceivable argument...with the court. The court has rejected all of these arguments." I beg to differ, as someone who has watched and participated in the Goodridge case at close hand.

The Attorney General never raised the jurisdictional issue, that under the Massachusetts Constitution "All causes of marriage...shall be heard and determined by the Governor and Council, until the Legislature shall, by law, make other provision." (Pt. 2, C. III, Art. V.) The legislature never gave the courts authority to change the very definition of marriage, only to hear cases of divorce and alimony, and cases of annulment or affirmation of marriage (the opposite of annulment.)

The argument was presented to his office at the outset of the Goodridge case in a memo dated July 24, 2001 to Jason Queenin, the director of External Affairs for the AG, from the Massachusetts Catholic Conference regarding the court's lack of subject matter jurisdiction. Reilly didn't raise this defense, which is still in play because it was never properly raised. Attorney Chester Darling raised it in an amicus brief, but the rule is that only parties can properly raise issues.

So Reilly did not make "every conceivable argument...with the court." Nor did he move for reconsideration of the Goodridge decision, which should be the ordinary thing in such a closely divided decision with such important consequences. Nor did he file a brief in the Advisory Opinion case regarding civil unions. Nor is he willing to seek a stay. Nor is he willing to appoint a special assistant attorney general to represent the governor's and the people's interests. He's rolling, all the while pretending to be opposed to the Goodridge holding.

Reilly, after all, celebrated the 1999 decision in Baker v. Vermont, when the Vermont Supreme Court ordered the Legislature to give same-sex couples all the incidents of marriage. He called it "an important landmark decision, a positive step for fairness."

His language gives him away. To call Baker a positive step for fairness implies that Goodridge's next step of actually recognizing same-sex marriage is even more fair.

Reilly has also opposed the Defense of Marriage Act proposed in the Legislature, writing in 1999 that "it is inappropriate to enact legislation that serves no purpose other than to emphasize the differences among us and stigmatize families whose parents are gay or lesbian."

And he opposed the ultimately successful lawsuit in Massachusetts to declare domestic partnership plans that were enacted without statutory authorization to be illegal. The Supreme Judicial Court was unanimous in its decision in that case, Connors v. City of Boston, in which Reilly was defending politically correct domestic partner benefits even though they were against the law.

He sought the same politically motivated override of law in filing an amicus brief at the Supreme Court attacking the Boy Scouts' ability to choose their own role models, which the court held to be their First Amendment right.

Article VII of the Declaration of Rights of our Massachusetts Constitution specifies that "the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it."

Reilly, and the Massachusetts media and academic and legal establishment, must not take away from the people of Massachusetts their "incontestable, unalienable, and indefeasible right" both to institute government and laws, and to reform the same through the democratic process. But they're doing their damndest.

Dwight Duncan -- 03/31/2004 13:18

Attorney General Reilly is digging in his heels with his refusal to seek a stay until the people can vote on the matter of the definition of marriage. On another front, he has said, as reported by the Globe, that the Massachusetts law enacted in 1913 "will forbid same-sex couples from at least 38 other states to get married here after May 17," when presumably gay marriage will come to Massachusetts.

It's a good thing he said "at least" 38 states. Thirty-eight states have their own Defense of Marriage Acts (DOMA), which specify that only marriage between a man and a woman is valid and recognized there. (There is also a federal Defense of Marriage Act, which says that for purposes of federal law marriage and spouses only come in male-female couples, and further that states are not required to recognize a sister-state same-sex marriage.) Clearly, as to those 38 states, a Massachusetts same-sex marriage would not be valid.

Here's what the law says: "No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void." (M.G.L. ch. 207 sec. 11.)

Since marriage between two persons of the same sex is legally valid in no other state (indeed, it is not valid even in Massachusetts at the present time), and is only valid in the Netherlands, Belgium and Canada, then any same-sex marriage involving a domiciliary of another state or foreign country other than those three would be "void if contracted there," and thus null and void here.

Even residents of states without DOMAs, like Maryland and New York, whose attorney generals have recently stated that while in-state same-sex marriages would not be valid, those imported from out-of-state would be, would not be able to contract a Massachusetts marriage because it would be "void if contracted in" that state.

Prof. Laurence Tribe of Harvard Law thinks that under the federal constitution, according to today's Globe, "Massachusetts officials may be compelled to ignore DOMA laws in other states." Does he really mean to endorse the actions of local government officials around the country in disregarding their laws because of reservations about their constitutionality?

If he's right about that, of course, then the main reason Democrats like John Kerry have been giving for refusing to support the Federal Marriage Amendment, that the issue is best left for the states to resolve, just doesn't hold water. The state with the lowest common denominator definition of marriage decides the matter for the nation.

Actually, it turns out that AG Reilly is a late-convert to his states-rights, gay-marriage-stops-at-the-border position. In 1999, commenting on a proposed state DOMA, he wrote to the Joint Committee on the Judiciary, "As to prospectively invalidating such unions when and if they are recognized in other states, the bill is, in my opinion, an unconstitutional attempt to avoid giving full faith and credit to legal obligations recognized by other states." (In Newsweekly, June 9, 1999.) So his view, apparently, is that Massachusetts would be required to recognize out-of-state same-sex marriages, but other states would not be required to recognize Massachusetts same-sex marriages. Go figure.

Dwight Duncan -- 03/30/2004 09:48

There was a flurry of activity last night when the Governor, minutes after the con-con voted in favor of the amendment, announced that he was requesting the Attorney General to seek a stay of the Goodridge decision until the constitutional amendment process runs its course. Assuming that the amendment passes the next legislative session (2005-2006), that would mean until November of 2006, when the people would finally be able to vote.

That would be a stay of 2 ½ years, beyond the six months' stay already granted sua sponte by the SJC. But it is not unusual for both state and federal courts to issue multi-year stays. It took the court itself 2 ½ years from when the case was filed in April 2001 until November of 2003 to decide the case. Why shouldn't the people be given an equal amount of time to ultimately decide the issue? As Article V of our Declaration of Rights proclaims, "All power residing originally in the people, and being derived from them, ... [government officials, including judges] are their substitutes and agents, and are at all times accountable to them."

AG Tom Reilly says that there is no legal basis for a stay, since the Court has already decided the matter (twice, once in November and once in the advisory opinion ruling out civil unions). But the Court has not decided this matter. A constitutional amendment to undo the Goodridge decision has now been passed by the people's elected representatives, on its way to enactment come 2006. Other courts requiring the recognition of same-sex marriage have abstained from mandating legislative action until the issue was resolved by constitutional amendment. That is what happened in both Hawaii and Alaska, when court decisions in favor of gay marriage were overturned by constitutional amendments enacted by popular referendum.

The Governor refers to the ensuing confusion if same-sex marriages are recognized starting in May, only to be undone in 2006. Would the amendment apply only prospectively, or also retroactively? What about the status of those couples married in Massachusetts who move to other states?

There is a strong argument that the court, in forcing the interim issuance of same-sex marriage licenses, would be abusing its power. The two co-equal branches of government are now on record as being in fundamental disagreement with Goodridge.

Our Massachusetts Constitution expressly provides that authority over marriage laws rests with the political branches, the general court and the executive. Unlike the United States Constitution, it specifically addresses marriage: "All causes of marriage...shall be heard and determined by the Governor and Council, until the Legislature shall, by law, make other provision." (Pt. 2, C. III, Art. V.) At no time in its history did the legislature give the courts authority to change the very definition of marriage. To do so would make hash of the constitutional provision regarding marriage and constitute an amendment to the Constitution by the court itself, bypassing amendment procedures spelled out in the Constitution.

The Attorney General, in defending the Goodridge suit, decided not to raise this argument, which goes to the court's subject matter jurisdiction. But lack of subject matter jurisdiction is never waived, and can be raised at any time, even after judgment. Nor was this issue ever decided in Goodridge, because it wasn't even raised.

Let's see what Reilly says after he has had a chance to read the Governor's formal request that he seek a stay.

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