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Foes of gay marriage try long shot

Bill seeks to remove four of SJC's justices

Twenty-eight days before the Supreme Judicial Court decision legalizing same-sex marriage goes into effect, diehard opponents will turn today to a radical, long-shot strategy: a bill to remove the four justices who penned the historic ruling.

The lone sponsor of the measure -- Representative Emile J. Goguen, Democrat of Fitchburg -- said he sees the "bill of address" as a tool to pressure members of the court to reconsider their landmark 4-3 decision or risk losing their judgeships.

"I'm going to be in tomorrow to file the bill," said Goguen, 70, who strongly opposes same-sex marriage and civil unions. "I'm going solo for now, but I will circulate it to all the legislators."

Goguen, who voted against a proposed constitutional amendment last month that would ban gay marriage but establish civil unions, said he agreed in the past week to sponsor the measure, after he was approached by members of the Article 8 Alliance, a new organization opposing same-sex marriage.

While he acknowledged that the bill's fate is uncertain at best, Goguen said he hoped the measure would pressure the court to reconsider its ruling or simply nullify it.

"It's not an easy thing to do, but I've never walked away from a challenge," he said.

The filing of the bill marks the most unusual expression yet of outrage with the SJC's ruling, which was derided as judicial activism by conservatives nationwide, including President Bush. Proponents of expanded rights for same-sex couples hailed the decision as the equivalent of other watershed decisions made during the civil rights movement.

The four justices who agreed on Nov. 18 that it is unconstitutional to bar same-sex couples from the rights and benefits of civil marriage are: Margaret H. Marshall, John M. Greaney, Roderick L. Ireland, and Judith A. Cowin. The four ruled that the state constitution forbids excluding a same-sex couples from civil marriages on the basis of sexual orientation. Opponents had argued that marriage is the central pillar of the child-rearing family and that the framers of the constitution never envisioned any other definition of marriage.

Brian Camenker, Article 8's coordinator, said he senses much sympathy for the bill of address in the Legislature, where he has approached about 40 lawmakers seeking sponsors since February. However, Camenker said, virtually all lawmakers he and his allies met with were reluctant to push the measure until April 27, when the vast majority of lawmakers learn if they will be opposed in the fall elections.

Camenker, whose group formed in February, declined to provide names of sympathetic lawmakers. "A lot of them are afraid of being bashed in the newspapers, but when you close the door with these guys, they're very angry with what's been happening," he said.

Representative J. James Marzilli Jr., an Arlington Democrat who supports same-sex marriage, said he views the bill of address as a "purely political" strategy with "absolutely no hope of passage." "I'm not entirely surprised by the filing of the bill, but I think the fact that a majority of the SJC was in agreement on this was a clear indication that this is a political question and has nothing to do with the fitness of the justices to serve on the Supreme Court," Marzilli said. "I think this is just another game of politics being played, and there's no doubt this will be rejected by my colleagues."

While rarely exercised, the power to remove sitting judges is outlined in the state's 224-year-old constitution, which states that "the governor, with consent of the council, may remove [judges] upon the address of both houses of the legislature."

According to Camenker, who has researched bills of address, lawmakers have successfully removed judges six times since 1787, most recently in 1973, when the Legislature, governor, and governor's council voted to remove Dorchester Municipal Court Judge Jerome P. Troy. However, Troy was first disbarred and removed by the SJC.

Attempts to bring down SJC justices have been rare. The last time lawmakers successfully removed an SJC judge was 1803, Camenker said. The only other attempt made by the Legislature was in 1922, and it failed.

Richard C. Van Nostrand, president of the Massachusetts Bar Association, said that the bill of address route has been invoked rarely for a reason.

"We don't want to go down a path that would cause judges to fear removal from their position for making unpopular decisions," Nostrand said.

Goguen said the stakes in the case of gay marriage are so high that they should override such concerns.

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, dismissed the bill as "absolute insanity."

"I can understand if our opponents don't like the decision, but our opponents have no rational basis for removing any of these judges," Isaacson said. "They were clearly doing their job and, quite frankly, doing it well. Their job, after all, is to determine what's constitutional or not. Our opponents are acting like sore losers."

Neither House Speaker Thomas M. Finneran nor Senate President Robert E. Travaglini could be reached yesterday. But neither legislative leader has been enthusiastic about using the bill of address. Each has been aware for months that Camenker's group was seeking support for its bill, but neither showed interest in it. The two have said their attention has moved from gay marriage to passing a budget.

Governor Mitt Romney, who filed a bill last week seeking special authority to ask the SJC to stay its ruling, has refused to meet with Camenker's group. At a recent press conference, Romney said he does not support the measure. Romney also told reporters that if his own bill failed to win passage in the Legislature, then gay marriages would become legal on May 17.

Camenker, however, is not deterred.

"I believe this will work," he said. "There has to be a check and balance to an illegitimate ruling, and this is it."

Globe correspondent Matthew Rodriguez contributed to this report.

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