Same-sex marriage licenses are null & void

FOR SAME-SEX MARRIAGE TO BECOME LEGAL, EVERYONE INCLUDING THE JUDICIAL BRANCH, LEGISLATIVE LEADERS, GOV. ROMNEY, CONSERVATIVES, LIBERALS, AND GAY ACTIVISTS ALL KNEW THAT THE LAWS WOULD NEED TO BE CHANGED, BUT THE MARRIAGE LAW NEVER CHANGED.
BEFORE MAY 17, 2003, the marriage law did not permit same-sex "marriage." Thus, for gay marriage to be "legal" in Massachusetts . . . the law had to change. All three branches of government concurred, as well as conservatives, liberals, and gay activists. BUT the law was never changed.


BEFORE MAY 17, 2004, the JUDICIAL BRANCH knew the legislature would have to change the marriage law for same-sex "marriage" to become legal.
The Supreme Judicial Court (SJC) judges who wrote the Goodridge decision (i.e., the judicial branch) in November, 2003, knew they did not have the power to suspend the marriage law, which is why they explicitly did not strike it down (see Goodridge decision).

Rather, the Legislature was told to act within 180 days. The Court, however, did not order the legislature to change the laws. Nor did the Court order the Department of Public Health, a party in the Goodridge case, to issue marriage licenses (because the statute did not then, does not now, and never has permitted such marriages). The court simply "declared" an opinion regarding the constitutionality of the marriage statute.

The SJC clarified their Goodridge ruling in February of 2004 writing to the Senate, "The purpose of the stay was to afford the Legislature an opportunity to conform the existing statutes to the provisions of the Goodridge decision."

Why didn't the SJC simply order the laws to change? Because, as the Court recently held (in its opinion regarding the legislature's constitutional duy to vote on the citizens' proposed marriage amendment), it has no power to order another branch of government to act.

So then how can Mitt Romney claim the SJC (the judicial branch) would have forced him (the executive branch) to issue marriage licenses and get away with it?

Before May 17, 2004, STATE LAWMAKERS knew the legislature would have to change the marriage law for same-sex "marriage" to become legal.
In the Legislative branch, State Sen. Bruce E. Tarr, a gay-marriage supporter, also said in April of 2004, he believed the Legislature would ultimately pass bills that would insert gender-neutral language into the state's marriage laws in time for the May 17, 2004 deadline. "No one should interpret inaction thus far with the idea that no action is forthcoming."

Why did liberal Legislators state that a change in the law was forthcoming?

Before May 17, 2004, MITT ROMNEY knew the the legislature would have to change the marriage law for same-sex "marriage" to become legal.
Romney himself as the executive branch in April of 2004 said, the Legislature "has yet to follow a directive from the SJC to change the state's marriage laws. I believe the reason that the Court gave 180 days to the Legislature was to allow the Legislature the chance to look through the laws and see how they should be adjusted for purposes of same-sex marriage; the Legislature didn't do that."

Why did Governor Romney, himself, agree that the legislature would need to change the laws?

Before May 17, 2004, even THE OPPOSITION'S LEGAL COUNSEL admitted that the legislature would have to change the marriage law for same-sex "marriage" to become legal.
GLAD Attorney Mary Bonauto, representing the seven gay couples who sued the state, agreed saying immediately after the 2003 Goodridge ruling, "The only task assigned to the Legislature is to come up with changes in the law that will allow gay couples to marry at the end of the 180-day period."

Why did Mary Bonauto believe the law had to be changed?

Before May 17, 2004, LIBERAL POLITICIANS knew the the legislature would have to change the marriage law for same-sex "marriage" to become legal.
In a letter to the Massachusetts legislature, Laurence Tribe, former Massachusetts Attorney General, William Weld, former Massachusetts Governor, Scott Harshbarger, former Massachusetts Attorney General, James M. Shannon, former Massachusetts Attorney General, Renee M. Landers (President Boston Bar Association urged the legislature . . . "to use the remainder of the time period in the court's stay to take any and all steps possible to facilitate the orderly issuance of marriage licenses to qualified same-sex couples. . . . Tribe, in an interview, said the letter is intended to urge lawmakers on both sides of the issue to pave the way and change existing state laws to bring them into compliance with the ruling, which the court stayed for six months to give the Legislature time to act.
http://www.boston.com/news/local/articles/2004/01/05/
weld_2_ex_ags_urge_passage_of_gay_marriage_law/

Why did liberal politicians urge the legislature to change the laws?

Before May 17, 2004, PRO-FAMILY LEADERS knew the legislature had to change the marriage law for same-sex "marriage" to become legal.
Why did Pro-family leaders ask the Governor to ignore the Goodridge opinion?

a. Tony Perkins, President, Family Research Council, 3-30-04
"FRC's Perkins says federal legislators should take heed. 'All eyes are now on Governor Mitt Romney, who is the last defense for marriage in Massachusetts,' he says."(Agape Press)

b. Genevieve Wood, Family Research Council, 3-30-04
'I think what's most important right now is for the governor to stand firm [and] not allow any marriage licenses to be handed out on May 17.' ”

c. Robert Knight, Director, Culture & Family Institute, Concerned Women for America, 3-30-04
"Supporters of traditional marriage are urging Romney to intervene via an executive order that would allow the legislative process to proceed. 'It's now up to the governor to put the brakes on this madness,' says Robert Knight of the Culture and Family Institute. 'He needs to make it clear that the law has not changed, and that on May 17, homosexual couples cannot make a mockery of God's institution of marriage.' (Agape Press)

d. Mat Staver, Esq, Liberty Counsel (http://www.lc.org/ProFamily/mass.htm)
Governor Mitt Romney . . . has the authority to preserve the definition of marriage, and thus the authority to issue an Executive Order prohibiting the issuance, solemnization and recordation of same-sex marriage licenses. Moreover, since the Executive branch enforces the law, it does not have to implement or enforce the decision of the Massachusetts Supreme Judicial Court. Without the Executive branch enforcing the court decision, the court’s ruling is meaningless. The Department of Public Health, the Registrar and the City and Town Clerks all come under the Executive branch. (May 2004)

“The executive branch, through the governor, is empowered to issue an executive order refusing to implement the ruling, Staver contends. The Massachusetts legislature also is empowered to pass a law stating that courts have no authority to redefine marriage.” (5-18-04 - WorldNetDaily)

e. Dwight Duncan’s Boston.com Blog ((authored by Jonathan Goulding, Ave Maria School of Law, 5/14/2004)
Therefore, when the Court found that those statutes did not permit same-sex marriages, the Court effectively denied town clerks and Department of Health officials the ability to confer marriage upon same-sex unions until the legislature takes further action.

Principles of our democratic republic demand that law be created by duly elected representatives. Those in the executive branch or in subordinate agencies-for example, town clerks-are not permitted to create law on an ad hoc basis. When, as has happened in Massachusetts, a state's highest court allows time for a legislature to change current statutes, procrastination on the part of the legislature does not empower those responsible for implementing existing law to proceed as if the statutes had been duly changed. Simply put, state officials may not implement a legislative scheme that does not yet exist…Aside from an entry of the Court's judgment declaring that the lack of provision in the law for same-sex marriage is unconstitutional, nothing more will result. There will be no provision for valid same-sex marriages.
http://www.boston.com/news/special/gay_marriage/blogs/chrisfunnell1.html

f. Judge Robert Bork
Judge Bork called the illegal imposition of homosexual "marriage" in Massachusetts "completely untethered from the state or federal constitutions and from the rule of law.”

g. Hadley Arkes, Professor of Jurisprudence, Amherst College, “The Missing Governor” 5-17-04
"Romney could invoke his powers under the constitution; cite the error of the court in seizing jurisdiction wrongfully for itself; and order all licenses of marriage to be sent on to Boston, to his office, until the legislature, in the fullness of time, settled its policy on marriage…. Is it now too late? That isn't altogether clear. Today has become the decisive date only because of the holding of the Supreme Judicial Court. But this argument over the error of the court, or the wrongful taking of jurisdiction, does not expire on May 17. That argument is still open, which means that it could be plausible for the governor to make that move at any time. But why should he make that move when receding has now become his signature tune?

h. Dr. James Dobson, Focus on the Family, 5-18-04
"Dobson … said he's distressed the decision to legalize marriage for same-sex couples was fueled by a politically correct agenda with 'no regard for the rule of law' … 'This is not the first time a tyrannical court – in this case the Massachusetts Supreme Judicial Court – has force-fed the people a liberal agenda disguised as the rule of law,' he said. 'But it may be the most devastating example of that kind of judicial activism.' ”

i. Tom Minnery, Vice President Focus on the Family
It is the constitutional duty of the Legislature, the elected representatives of the people, and not the courts, to decide the social policy for the state."

j. Patrick J. Buchanan, “Mitt Romney: Meet Calvin Coolidge” 2-9-04
“What's a governor to do? … Defy the court. Romney should step out in front of the state press corps and read a statement that would stun America, rally social and judicial conservatives of both parties, and bring every network camera in the nation to Boston: ‘I have read the court's decision, and while I respect the court, I cannot respect its decision. There is no basis for it in law. There is no basis for it in precedent. There is no basis for it in the letter or spirit of the constitution of our Commonwealth nor in the intent of the men who wrote that constitution… And as I took an oath to defend the Constitution of the Commonwealth, I intend to disregard the court order of last November…. I will neither propose nor will I sign any bill from the legislature that places homosexual unions on a moral and legal plane with traditional matrimony. To do so would violate my oath, conflict with my beliefs and trample upon the convictions of the people of this state.' After issuing his statement, the governor should take up leadership of the fight to put on the state ballot a constitutional amendment restricting marriage in Massachusetts to men and women. What would the Massachusetts high court do? Declare Romney in contempt? Order Romney's arrest? Tell state employees to start accepting requests from homosexuals for marriage licenses? Romney could tell the employees to politely reject such requests….” (syndicated column, “Mitt Romney: Meet Calvin Coolidge”)

Why did Pat Buchanan believe the Governor could ignore the SJC ruling?

k. Dan Avila, Massachusetts Catholic Conference
“The Justices could point to no other justification for their ruling than their own beliefs. They have ordered the legislature to act within 180 days. That means the legislature is now being forced to change all the laws that address marriage, including the anti-discrimination laws. [Responses of Roman Catholic Bishops in Massachusetts to Goodridge Decision, Nov. 18, 2003; http://www.macathconf.org/03goodridge_press_statements.htm]

Why did Dan Avila believe the legislature was going to have to change the law?

l. Ronald A. Crews, president of the Massachusetts Family Institute in 2004
"[A]t least [the liberal politicians listed above] are acknowledging that the debate is now before the Legislature, and I believe that is the proper venue." Crews also said: One alternative is to convince Gov. Mitt Romney to issue an executive order to city and town clerks halting the issuance of marriage license to same-sex couples . . .

Why did Ron crews believe the legislature could debate this still?

m. Jan LaRue Legal Counsel, Concerned Women for America, 2-5-04
"Jan LaRue dismissed the notion that same-sex "marriage" was now inevitable in Massachusetts. 'The court expressly refused to strike down the state's marriage laws,' LaRue said. 'They are still on the books. The court did not order the Legislature to grant same-sex marriage. It gave the Legislature 180 days to take whatever action 'it deemed appropriate in light of the ruling. (Talon News)

n. Article 8 Alliance/MassResistance, Dec. 2003
"The Governor must issue an executive order openly defying any further action by the Superior Court and ordering that: Neither the Department of Public Health nor any public employee in Massachusetts may disobey the current marriage laws; and same-sex marriage licenses will NOT be legally recognized in Massachusetts.”


CONFUSED YET?
Conventional wisdom says that the SJC created same-sex "marriage."

But a basic principle is that courts do not make laws, only legislatures do. See Bowe v. Secretary of the Commonwealth , 320 Mass. 230 (1946) (“The people by the Constitution created the legislative branch of government as well as the executive and judicial branches, and conferred and at the same time limited the powers of each of them. Each must act pursuant to the Constitution and within the authority conferred by it.”).

If the Goodridge ruling DID indeed "change the law," then why, BEFORE MAY 17, 2004, did everyone quoted above say that the legislature would need to "change the law?"

What exactly would the legislature need to have done if the SJC had already taken care of it?


AND THEN . . . AFTER MAY 17, 2004,

But if the Goodridge ruling DID NOT change the law, and the law has never been changed, then why, AFTER May 17, 2004, did everyone, especially pro-family conservatives (except for Mass. Resistance), act like it had been changed?

If nothing happened (in terms of legislatively changing the marriage laws) between November, 2003 (when the Goodridge decision was published) and May 17, 2004, and the Supreme Judicial Court had never ordered the Governor to do anything, then why did Romney decide unilaterally that a "new law" existed and why did he order town clerks to start issuing same-sex marriage licenses? If nothing had changed between April of 2004 when Mitt Romney said "the Legislature [needed] to look through the laws and see how they should be adjusted for purposes of same-sex marriage," then why were same-sex marriage certificates being given out on May 17, 2004? If the law needed to be changed and it never was, then how could "marriage" licenses be legal?

So what is the legal status of same-sex marriage in Massachusetts?
Nemo dat qui non habet (“You cannot give what you do not have”). That is, Romney could not give what he did not have. Romney had no enabling statute, nor is there one today, to permit same-sex couples to marry.

Bottom line: Prior to the issuance of marriage licenses to same-sex couples by Gov. Romney's Department of Public Health, every organization and entity with an interest in this issue declared publicly that the law needed to change--including gay activists, conservatives, the Catholic Church, liberal constitutional lawyers, and all three branches of government (judicial, executive, and legislative), including Mitt Romney himself. Yet in May of 2004, Mitt Romney, without any legal authority, ordered marriage licenses to be issued to same-sex couples. Thus, Romney enabled fraudulent "weddings" to be performed, and the issuance of marriage certificates that are legally null & void today. Hopkins v. Clemson Agricultural College of South Carolina, 221 U.S. 636 (1911) (A void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection.).

Can this fraud be allowed to continue unchallenged?
I have found no better answer than that from two of our greatest Americans, Abraham Lincoln and Martin Luther King.

Lincoln said,
"The answer is simple. Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;--let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap--let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;--let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars."

While ever a state of feeling, such as this, shall universally, or even, very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.

Abraham Lincoln
The Perpetuation of Our Political Institutions
Address Before the Young Men's Lyceum of Springfield, Illinois January 27, 1838

And Martin Luther King said: "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."
Martin Luther King's
Letter from Birmingham Jail

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To America Table of Contents

Introduction - The Demolition of Democracy

Part I - Legal Authority

Part II - What the SJC Did and What They Did Not Do

Part III - Changing Common Law Did Not Change Chapter 207

Part IV - Changing Common Law Did Not Change the Constitution

Part V - Changing the Common-Law Is Legally Insignificant

Part VI - C.207 Continues to Prohibit Same-Sex "Marriage"

Part VII - Mass. Same-Sex "Marriages" Are Legally Void

Part VIII - We the People . . . Still Have Authority

IntroductionThe Demolition of Democracy[1]

The emperor marched in the procession under the beautiful canopy, and all who saw him in the street and out of the windows exclaimed: “Indeed, the emperor’s new suit is incomparable! What a long train he has! How well it fits him!” Nobody wished to let others know he saw nothing, for then he would have been unfit for his office or too stupid. Never emperor’s clothes were more admired.[2]

Same-sex marriage in Massachusetts does not exist. Chapter 207, the Massachusetts “marriage” statute, actually prohibits same-sex marriages. The certificates that have been and are being handed to same-sex couples allegedly pursuant to that statute are void and are not worth the paper they are printed on. In the meantime while this falsehood continues on a daily basis to be forced upon the citizens of the Commonwealth of Massachusetts (and the rest of the world), the Massachusetts Constitution has been violated not by one branch of Government, but by all three.[3]

Although many and diverse people are aware[4] that same sex marriage does not legally exist in Massachusetts, the national and local media is unwilling to expose the lack of legal authority for the “marriages;” they simply would rather report the falsehood.[5] The family law experts are not willing to acknowledge the deficiency; nor is the Governor of Massachusetts (whose only constitutional duty is to execute the laws of Massachusetts) willing to admit it because doing so might adversely impact his future run for President of the United States.

Too many citizens believe that because the Goodridge[6] decision does not affect me and my family personally, it is too vague and abstract to worry about. But as a citizen of a free country established on the principle of free speech, it is each citizen’s independent obligation to educate oneself, engage in the public debate over the future stability of a foundational building block of our society, marriage, and to not tolerate the demolition of our democracy.

Once one educates[7] oneself about exactly what happened in Massachusetts on May 17, 2002, the truth becomes transparently obvious and glaring questions linger. Why does the rest of the world believe same-sex “marriage” legally exists? Who is to blame for this global fraud? What are other States to do when the proponents attempt to bring same-sex “marriage” to those States through the full faith and credit clause of the United States Constitution? How can the falsehood be prevented from being used as precedent and infecting other State’s laws? This article answers those questions.[8]

ENDNOTES

1   McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 607 (1993) (John Adams “offered that "there is no good government but what is republican." Thoughts on Government, in 4 Works of John Adams 194 (C.F. Adams ed. 1851). He described the requirements of a Constitution for a republican government. He prescribed a tripartite system of government in which the executive, legislative, and judicial branches are independent of one another . . .”); The Case Against Same-Sex Marriage in Canada: Law and Policy Considerations Jane Adolphe * 18 BYU Journal of Public Law 480 (2003) (“In sum, to accept the Halpern redefinition of marriage is to accept a fate articulated by lawyer and scholar Iain Benson: “Citizens of Canada no longer live in a democratic society. The illusion of democracy continues, but the reality is that major decisions regarding fundamental matters are no longer made by elected officials.” Indeed, authentic democracy is possible only in a State, which respects the rule of law founded on a true conception of the human person and his and her human dignity, which is integrally tied to the natural family based on marriage. When objective truth does not guide and direct government, Pope John Paul II aptly points out, “then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism.”)”).

2   The Emperor’s New Suit, by Hans Christian Andersen (1837) See http://hca.gilead.org.il/emperor.html.

3   The first constitutional violation was committed by the legislature in 2002 and Governor Jane Swift (R). The remainder of this article focuses on how the SJC and the current governor (Mitt Romney) have independently, collaboratively, and intentionally disregarded the will of the people.

4    See e-mail sent to the Boston Globe -- http://www.article8.org/hobbib_letter.htm. See also http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=48313

5   find a citation

6   Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)

7   In a recent, but blatant slap in the face of the people, legislature, and governor of Massachusetts, the Supreme Judicial Court recently said: “For its effective functioning, democracy requires an educated citizenry.” Hancock v. Commissioner of Education, SJC-09267, February 15, 2005.

8   Because, as the reader will learn, the Supreme Judicial Court’s declaration of unconstitutionality of the marriage statutes is of no legal significance, there is no need to delve deeply into the obvious judicial activism that the Court employed to justify finding that there is no rational basis in the statute for limiting marriage to one man and one woman. See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003). There was obviously a debatable rational basis, which should have prevented the Supreme Judicial Court from declaring the statute “unconstitutional” and attempting to substitute its own judgment for that of the people. See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Cordy, J., dissenting) (“It is difficult to imagine a State purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children. At the very least, the marriage statute continues to serve this important State purpose.”); Mass. Comm'n Against Discrimination v. Colangelo, 344 Mass. 387(1962) ("It is only when a legislative finding cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it that a court is empowered to strike it down. ... If the question is fairly debatable, courts cannot substitute their judgment for that of the Legislature."); Druzik v. Bd. of Health of Haverhill, 324 Mass. 129 (1949) (“All rational presumptions are made in favor of the validity of every legislative enactment. Enforcement is to be refused only when it is in manifest excess of legislative power. It is only when a legislative finding cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it that a court is empowered.”).

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To AmericaPart I - Legal Authority

The Legal Authority to Certify and Solemnize a Marriage in Massachusetts Originates Solely by Statute

“Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.[9] “Marriage is the foundation of the family. It is a social institution of the highest importance.”[10] It is of such importance that the Founding Fathers of our Commonwealth’s Constitution sought fit to specifically address “marriage” in the Constitution. It is through the power emanating from the Constitution that permits the Commonwealth’s legislature to make laws regarding and addressing causes concerning “marriage.[11]”

Our laws in Massachusetts have long recognized that marriage is the union between husband and wife;[12] one man and one woman. “Civil marriage is an institution created by the State. . . . [T]he marriage statutes are derived from English common law[13] and were first enacted in colonial times.[14] They were enacted to secure public interests and not for religious purposes or to promote personal interests or aspirations. . . . [T]he institution of marriage [as] "the legal union of a man and woman as husband and wife," . . . has always been so under Massachusetts law, colonial or otherwise.” Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Cordy, J., dissenting).

There is only one way to become married in Massachusetts; the legal authority to enter into a civil marriage is granted exclusively by statute.[15] Chapter 207 is the marriage statute in Massachusetts.[16] It has fifty (50) subsections[17] which define the parameters of who, what, where, and when persons can be married in the Commonwealth along with numerous other statutes that further define the parameters of the marriage relationship.

For a marriage to legally exist, that marriage has to be formally solemnized and the requirements of the marriage statute must be met.[18] The legal authority to issue a certificate of intention to marry is found in c.207 §28 and the legal authority to solemnize a marriage is found at c.207 §38. “The status of the parties as husband and wife [is] fixed when the marriage [is] solemnized.[19] A marriage cannot be avoided or the obligations imposed by law as incident to the relation of husband and wife be relaxed by previous agreement between the parties.”[20] This is because “[m]arriage is not merely a contract between the parties.”[21] “The moment the marriage relation comes into existence, certain rights and duties necessarily incident to that relation spring into being."[22]

“The Commonwealth has, [and has always had], a deep interest that [the] integrity [of marriage] . . . not [be] jeopardized."[23] “Massachusetts has a strong public policy in preventing the rules governing marriage from being subverted.”[24] Traditionally, the Supreme Judicial Court has “guarded jealously the rules applicable to married people, and [has] not extended them to parties who cohabitate without marriage.”[25] Civil marriage . . . in Massachusetts “[has] always been wholly [authorized] by statute.”[26] In contrast, in other places like Canada, there exists a right to marry outside of the statutory authority.[27] That legal right is granted under the “common law” and it is called common law marriage.[28] Common law marriage, however, has never been allowed in Massachusetts.[29]

Simply because the marriage statute does not explicitly identify a particular “marriage” as void, does not make it a legal marriage. See Milford v. Worcester, ___ Mass. 47, 55 (1810). A marriage that is not duly authorized “is not a legal marriage” and “is not entitled to the incidents of a marriage duly solemnized.” Milford v. Worcester, ___ Mass. 47, 56 (1810).

Same-sex relationships fall outside the statutory rules of “marriage.”[30] Chapter 207 does not (and never did) allow their agreements to be solemnized by any agent of the state or of any subsidiary local government.[31] But somehow today same-sex couples believe they are being “married.”

How can town clerks be “certifying” and justices of the peace and politicians be “solemnizing” agreements for relationships that violate Massachusetts law? When a justice of the peace says to a same-sex couple the words “I do now, by virtue of the authority vested in me by the Commonwealth of Massachusetts, pronounce you legally married,” the glaring question is . . . by what authority?

ENDNOTES
[9]    Loving v. Virginia, 388 U.S. 1 (1968). This unique characteristic of marriage would no longer exist if the definition of marriage is changed to include same-sex couples.

[10]    Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987) (where Supreme Judicial Court was unwilling to subvert the value of marriage by recognizing a right to recover for loss of consortium by a person who has not accepted the correlative responsibilities of marriage); see Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Cordy, J., dissenting). (“This court, among others, has consistently acknowledged both the institutional importance of marriage as an organizing principle of society, and the State's interest in regulating it. See French v. McAnarney, 290 Mass. 544, 546 (1935) ("Marriage is not merely a contract between the parties. It is the foundation of the family. It is a social institution of the highest importance. The Commonwealth has a deep interest that its integrity is not jeopardized"); Milford v. Worcester, 7 Mass. 48, 52 (1810) ("Marriage, being essential to the peace and harmony, and to the virtues and improvements of civil society, it has been, in all well-regulated governments, among the first attentions of the civil magistrate to regulate [it]"). See also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) ("Marriage and procreation are fundamental to the very existence and survival of the [human] race"); Maynard v. Hill, 125 U.S. 190, 211 (1888) (marriage "is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress"); Murphy v. Ramsey, 114 U.S. 15, 45 (1885) ("no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth ... than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman ... the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement"); Reynolds v. United States, 98 U.S. 145, 165 (1878) ("Upon [marriage] society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal").

[11]    cite section of constitution regarding judicial power -- causes of marriage are for the governor and for the legislature.

[12]    Davis v. Misiano, 373 Mass. 261, 262 (____); See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

[13]    See Commonwealth v. Knowlton, 2 Mass. 530, 534 (1807).

[14]    See Commonwealth v. Munson, 127 Mass. 459, 460 (1879).

[15]    Although Massachusetts will recognize a valid common law marriage created in another state under the full faith and credit accorded to other state’s laws REWORD THIS AND FIND CITE

[16]    See M.G.L. c.207 s.1 - ____; Also see CASE CITE FOR CASE GOING THROUGH THE STATUTORY HISTORY OF MARRIAGE IN MASSACHUSETTS

[17]    Actually there are fifty-eight but eight of the subsections have been repealed over the years.

[18]    See Davis v. Misano, 373 Mass. 261 (1977). In Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006), the SJC explained the entire set of steps for the proper solemnization and certification of a marriage:

To marry in Massachusetts, all applicants for a certificate of intention of marriage, commonly known as a marriage license, must complete a written notice of intention of marriage (notice) on forms provided by the registrar of vital records and statistics (registrar), and submit it to the clerk or registrar of any city or town in the Commonwealth, along with the appropriate fee.[7] See G. L. c. 207, §§ 19, 20. The notice shall include "a statement of absence of any legal impediment to the marriage, to be given before such town clerk under oath by both of the parties to the intended marriage." Id. at § 20. The applicants also shall provide the clerk with the residence address of both parties. See id.

On or after the third day from the filing of the notice (or sooner if the time period has been waived by a judge), the clerk shall deliver the marriage license to the parties. See id. at §§ 19, 28, 30. Then, an authorized officiant may solemnize the marriage. See id. at §§ 28, 38-39. After solemnization, the officiant completes the portion of the license setting forth the time and place of the ceremony, signs it, and returns it to the clerk who issued it. See id. at § 40. The clerk records the marriage in the appropriate registry, transmits the original record of the marriage and all documentary evidence to the registrar, and retains a certified copy of the license. See G. L. c. 46, §§ 1-2, 17A. The Commissioner of Public Health (commissioner) binds the marriage records with indexes thereto and retains their custody. See G. L. c. 111, § 2.

[19]    French v. McAnarney, 290 Mass. 544 (1935)

[20]    Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987); see French v. McAnarney, 290 Mass. 544 (1935)

[21]    Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987); see French v. McAnarney, 290 Mass. 544 (1935)

[22]    French v. McAnarney, 290 Mass. 544 (1935)

[23]    Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987); see French v. McAnarney, 290 Mass. 544 (1935)

[24]    Reep v. Commissioner of the Department of Employment & Training, 412 Mass. 845 (1992); Green v. Richmond, 369 Mass. 47, 51 (1975)

[25]    Collins v. Guggenhem 417 Mass. 615, 617 (1994) (“Cohabitation in Massachusetts does not create the relationship of husband and wife in the absence of a formal solemnization of marriage . . . we have never recognized common law marriage.”); Reep v. Commissioner of the Department of Employment & Training, 412 Mass. 845 (1992); Davis v. Misano, 373 Mass. 261 (1977); Green v. Richmond, 369 Mass. 47, 51 (1975)

[26]    Robbins v. Robbins, ___ Mass. 528 (1886); Commonwealth v. Munson 127 Mass. 459); Sparhawk v. Sparhawk, 116 Mass. 315 (1874).

[27]    Common law marriage exists in Alabama, Colorado, District of Columbia, Georgia (if created before 1/97), Idaho (if created before 1/96), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if created before 10/91), Oklahoma (possibly only if created before 11/1/98. Oklahoma's laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.), Pennsylvania (if created before 9/03), Rhode Island, South Carolina, Texas, Utah. See http://www.unmarried.org/common.html; see also http://legal-dictionary.thefreedictionary.com/common-law+marriage (“common-law marriage n. an agreement between a man and woman to live together as husband and wife without any legal formalities, followed and/or preceded by cohabitation on a regular basis ( usually for seven years). Common-law marriage is recognized in Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah, thereby recognizing a marriage for purposes of giving the other party the rights of a spouse, including inheritance or employee benefits. Such informal partnerships are recognized by some local governments for purposes of the rights of a spouse under employment contracts and pension rights even where the state does not recognize this as a marriage.)”

[28]    See Egan v. Canada, [1995] 2 S.C.R. 513, 536-37

[29]    Commonwealth v. Munson, 127 Mass. 459, 460 (1879) (“In Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the Colony, Province, and Commonwealth; the canon law was never adopted; and it was never received here as common law that parties could by their own contract without the presence of an officiating clergyman or magistrate, take each other as husband and wife and so marry themselves.”). See also Wilcox v. Trautz, 427 Mass. 326 (Massachusetts [does] not recognize common law marriage); Heistand v. Heistand, 384 Mass. 20 (1981) (“The ceremonial exchange of vows between the plaintiff and David Lowry was a legal nullity in this Commonwealth, as the judge below acknowledged. Massachusetts does not recognize common-law marriage.”).

[30]    See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

[31]    See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To AmericaPart II - What the SJC Did and What They Did Not Do

The Goodridge Court Declared the Massachusetts Marriage Statute Unconstitutional

To understand how same-sex couples, local town clerks and politicians, and the rest of America have been convinced that same-sex “marriage” is legal in Massachusetts and to understand how the people of the Commonwealth have been forced into accepting “marriages” that violate the law, it is important to look at exactly what the Supreme Judicial Court actually did on November 17, 2003. It is, yet, equally if not more important to understand what they did not do.

In Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003),

[e]ach of the plaintiff couples attempted to obtain a marriage license from a city or town clerk's office. As required under G. L. c. 207, they completed notices of intention to marry on forms provided by the registry, see G. L. c. 207, § 20, and presented these forms to a Massachusetts town or city clerk, together with the required health forms and marriage license fees. See G. L. c. 207, § 19. In each case, the clerk either refused to accept the notice of intention to marry or denied a marriage license to the couple on the ground that Massachusetts does not recognize same-sex marriage.[32]

A Superior Court judge ruled for the department. In a memorandum of decision and order dated May 7, 2002, he dismissed the plaintiffs' claim that the marriage statutes should be construed to permit marriage between persons of the same sex, holding that the plain wording of G. L. c. 207, as well as the wording of other marriage statutes, precluded that interpretation. Turning to the constitutional claims, he held that the marriage exclusion does not offend the liberty, freedom, equality, or due process provisions of the Massachusetts Constitution, and that the Massachusetts Declaration of Rights does not guarantee ‘the fundamental right to marry a person of the same sex.’ He concluded that prohibiting same-sex marriage rationally furthers the Legislature's legitimate interest in safeguarding the ‘primary purpose’ of marriage, ‘procreation.’ The Legislature may rationally limit marriage to opposite-sex couples, he concluded, because those couples are ‘theoretically . . . capable of procreation,’ they do not rely on ‘inherently more cumbersome’ non-coital means of reproduction, and they are more likely than same-sex couples to have children, or more children. After the complaint was dismissed and summary judgment entered for the defendants, the plaintiffs appealed. Both parties requested direct appellate review, which we granted.[33]

The Supreme Judicial Court explained that:

civil marriage is created and regulated through exercise of the police power. ‘Police power’ (now more commonly termed the State's regulatory authority) is an old-fashioned term for the Commonwealth's lawmaking authority, as bounded by the liberty and equality guarantees of the Massachusetts Constitution and its express delegation of power from the people to their government. In broad terms, it is the Legislature's power to enact rules to regulate conduct, to the extent that such laws are "necessary to secure the health, safety, good order, comfort, or general welfare of the community." The Supreme Judicial Court went on to explain that “[o]btaining a marriage license [in Massachusetts] is a necessary prerequisite to civil marriage.”[34]

The Supreme Judicial Court then decided that Chapter 207 does not permit same sex marriage as it was written:

The everyday meaning of ‘marriage’ is ‘[t]he legal union of a man and woman as husband and wife,’ Black's Law Dictionary 986 (7th ed. 1999), and the plaintiffs do not argue that the term ‘marriage’ has ever had a different meaning under Massachusetts law. . . . Far from being ambiguous, the undefined word ‘marriage,’ as used in G. L. c. 207, confirms the General Court's intent to hew to the term's common-law and quotidian meaning concerning the genders of the marriage partners. . . . The intended scope of G. L. c. 207 is also evident in its consanguinity provisions. . . . We conclude, as did the judge, that G. L. c. 207 may not be construed to permit same-sex couples to marry.[35]

In essence, the Court found that the Legislature when enacting c. 207 could only have understood “marriage” to be defined as existing between one man and one woman.

The Supreme Judicial Court construed the plain meaning of the words of the statute as follows::

Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, . . .We also reject the argument suggested by the department, and elaborated by some amici, that expanding the institution of civil marriage in Massachusetts to include same-sex couples will lead to interstate conflict.[36]

Relying on a foreign country’s precedent for how Massachusetts should interpret our law, the Court explained:

We face a problem similar to one that recently confronted the Court of Appeal for Ontario, the highest court of that Canadian province, when it considered the constitutionality of the same-sex marriage ban under Canada's Federal Constitution, the Charter of Rights and Freedoms (Charter). See Halpern v. Toronto (City), 172 O.A.C. 276 (2003). Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others." Id. at par. (36), quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866). In holding that the limitation of civil marriage to opposite-sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage.[37]

We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. (emphasis added) See Powers v. Wilkinson, [38] 399 Mass. 650, 661-662 (1987) (reforming common-law rule of construction of "issue"); Lewis v. Lewis,[39] 370 Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal immunity).[40]

We construe [common law] (the opinion says “civil”) marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage.[41]

Doing only what they had been asked to do – and indeed the only thing they had authority to do – the SJC “declared” that the current definition of the word “marriage” is unconstitutional; i.e., “barring” same-sex marriage is unconstitutional:

“We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.”[42]

ENDNOTES
[32]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

[33]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

[34]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

[35]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

[36]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).
[37]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

[38]    See Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming the common-law rule of construction of "issue"); Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal immunity). The SJC cited Powers v. Wilkinson, which changed the common law meaning of the word “issue,” but only for the future. "It is fundamental that a trust instrument must be construed to give effect to the intention of the donor as ascertained from the language of the whole instrument considered in the light of circumstances known to the donor at the time of its execution." Groden v. Kelley, 382 Mass. 333, 335 (1981), relying on Dana v. Gring, 374 Mass. 109, 117 (1977), and cases cited. Our review of the trust instrument confirms what is undisputed here, that the instrument itself contains no indication of the donor's intent to use the word "issue" so as to include or exclude nonmarital descendants. . . . Because nothing indicates an intent by the donor to include nonmarital issue, precedent requires us to presume that the donor intended, in accordance with the law extant at the time the instrument was executed, to exclude nonmarital descendants from the class denoted by her use of the word "issue.". . . Thus, if the rule excluding nonmarital children from judicial construction of the word "issue" was not archaic when this court reiterated it in 1947, it has become so. . . . We conclude, then, that the new rule of construction applies only to trust instruments executed after the date of this opinion. (emphasis added).” The SJC did not even impose it’s progressive viewpoint on the poor testator who put the word “issue” in his trust and expected it to have its traditional meaning, which the SJC honored by making the enforcement of the decision not retroactive but proactive in its application.

[39]    In Lewis v. Lewis, 370 Mass. 619 (1976), the SJC determined: “The fundamental basis for the common law rule of interspousal immunity was the special unity of husband and wife within the marital relationship. . . . We conclude therefore that it is open to this court to reconsider the common law rule of interspousal immunity and, having done so, we are of opinion that it should no longer bar an action by one spouse against another in a case such as the present one. . . . We have examined the reasons offered in support of the common law immunity doctrine and, whatever their vitality in the social context of generations past, we find them inadequate today to support a general rule of interspousal tort immunity.

[40]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)

41]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)

[42]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To AmericaPart III - Changing Common Law Did Not Change Chapter 207

Because common law is the lowest, not the highest, order of law in our legal system, it cannot strike down positive, legislated law. Therefore, the SJC’s act of reformulating the common law meaning of marriage did not and could not change the meaning of the term “marriage” contained within the marriage statute, Chapter 207.

“Whether a statute is wise or effective is not within the province of courts. Commonwealth v. Lammi, 386 Mass. 299, 300 (1982). "It is not for [a] court to judge the wisdom of legislation or to seek to rewrite the clear intention expressed by the statute.”[43] Mellor v. Berman, 390 Mass. 275, 283 (1983). "[D]eference to legislative judgments reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the 'undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature.'" Lammi, supra at 300, quoting Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977).” Commonwealth v. Leno, 415 Mass. 835 (1993). As Mr. Chief Justice Burger of the Supreme Court of the United States explained in his dissent in Furman v. Georgia, "in a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people."[44]

"It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the court is to enforce it according to its terms."[45] The goal in statutory construction, therefore, is to ascertain the legislative intent.[46] The duty of the court is to give the statute a reasonable construction.[47] “[S]tatutory language is the principal source of the insight into legislative purpose.” Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407, 415 (1984); see Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003). “When the words of a statute are clear, they are to be given their ordinary and natural meanings. If the meanings are unclear, the statute must be interpreted 'according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.'”[48] [In addition,] ‘a statute should be read as a whole to produce an internal consistency.'[49] [Id. at 873.].”

In interpreting the legislative intent behind the marriage statute, the Goodridge Court adhered to these principles of jurisprudence regarding the construction of the meaning of Chapter 207.[50] Indeed, the Goodridge opinion accurately gleaned the legislative intent behind the enactment of the marriage statute. Very clearly the Court acknowledged that “the Legislature did not intend that same-sex couples be licensed to marry.” The Court essentially decided that the current and traditional statutory “meaning of ‘marriage’ is ‘[t]he legal union of a man and woman as husband and wife,’ Black's Law Dictionary 986 (7th ed. 1999).”[51] The court had a duty not to negate the actual legislative intent and the Goodridge Court complied with that duty (but only regarding the construction of the statute not the Constitution, as discussed below).[52] The Court found that the marriage statute does not authorize same-sex marriage stating: “We conclude . . . that G. L. c. 207 may not be construed to permit same-sex couples to marry.”

After coming to this conclusion, the Court did not attempt to change the statute.[53] Indeed, the Court could not have done so because it does not possess that authority from the Constitution.[54] The Massachusetts Constitution explicitly prohibits the judiciary from performing a legislative function.[55] The SJC does not possess the authority to change the plain meaning of a statute’s language.[56] The SJC repeatedly has acknowledged it has “no right to read into [a] . . . statute 'a provision [extending a definition] which the Legislature did not see fit to put there."[57] Similarly, the Court has stated it will not “add words to a statute that the Legislature did not put there . . ."[58] It is the Legislature alone whose legal prerogative it is to adjust the statutes to changed conditions.[59] These principals recognize and honor our system of separation of powers.[60] .

Abiding by their constitutionally limited powers, the four justices declared that they would “reformulate the common law meaning of marriage” in Massachusetts.[61] That action, however brazen, was legally insignificant in terms of its effect on the power granted pursuant to the statute. The act of reformulating the common law meaning did not and could not change the meaning of the term “marriage” contained within the statute.[62] The common law is not the highest but the lowest form of law and, therefore, is subordinate to legislation enacted by the representatives of the people.[63]. Clearly, then, the SJC could not enlarge the statutory language in the marriage laws to include situations never contemplated by and indeed, actions considered abhorrent behavior by the original drafters of the legislation merely by changing the “common law.”[64] Their reformulation of the definition of “marriage” under the common law could not and did not change the statute.[65] The SJC acknowledged this limitation by clearly and carefully stating that they were simply doing what they had been asked to do; which was to declare the statute unconstitutional.[66]


ENDNOTES
[43]    In re Gault, 387 U.S. 1 (1967) (“[C]ourts may not substitute for the judgments of legislators their own understanding of the public welfare, but must instead concern themselves with the validity under the Constitution of the methods which the legislature has selected. See, e. g., McLean v. Arkansas, 211 U.S. 539, 547 ; Olsen v. Nebraska, 313 U.S. 236, 246 -247.”); See also Liability Investigative Fund Effort Inc. v. Mass. Medical Professional Ins. Assoc., 418 Mass. 436 (1994) (“We conclude that the better reading of the statute is that deficit recoupment is to be governed by the plan of operation in place at the time of the recoupment. This construction effectuates the Legislature's intent. . . . Commonwealth v. Leis, 355 Mass. 189, 200 (1969) (Kirk, J. concurring) ("’Every presumption is indulged in favor of the validity of a statute.’)”); Baker v. State, 744 A.2d 864, 886-88 (Vt. 1999) (“We do not purport to infringe upon the prerogatives of the Legislature to craft an appropriate means of addressing this constitutional mandate . . . .”); Compare Mass. Federation of Teachers v. Bd. of Education, 436 Mass. 763, 772 (2002) (“In reviewing a regulation, a court cannot "substitute [its] judgment as to the need for a regulation, or the propriety of the means chosen to implement the statutory goals, for that of the agency, so long as the regulation is rationally related to those goals." American Family Life Assur. Co. v. Commissioner of Ins., 388 Mass. 468, 477, cert. denied, 464 U.S. 850 (1983). "It is not our function to consider the expediency of an enactment or the wisdom of its provisions." Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 544 (1974). See Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulations, 400 Mass. 464, 467 (1987) (where question whether any conceivable ground exists to uphold regulation is fairly debatable, court cannot substitute its judgment for that of agency).

This deferential approach "is necessary to maintain the separation between the powers of the Legislature and administrative agencies and the powers of the judiciary." Borden, Inc. v. Commissioner of Pub. Health, supra at 723. Plenary review of administrative regulations "would have an unhealthy tendency to substitute the court for the agency as policymaker." Cambridge Elec. Light Co. v. Department of Pub. Utils., 363 Mass. 474, 491 (1973). Administrative agencies possess expertise in their areas of specialization, and "[r]egulations are good indicators of an agency's interpretation of a statute it is charged with administering." American Family Life Assur. Co. v. Commissioner of Ins., supra at 475. Judicial deference "also precludes the possibility that a plaintiff may frustrate administrative policy merely by amassing facts, statistics, and testimony before a judge, all of which may have little or nothing to do with the legislative facts which the administrative agency relied upon in making its regulation." Borden, Inc. v. Commissioner of Pub. Health, supra at 723. "[R]espect for the legislative process means that it is not the province of the court to sit and weigh conflicting evidence supporting or opposing a legislative enactment." Id., quoting Shell Oil Co. v. Revere, 383 Mass. 682, 687 (1981).”).

This article does not attempt to analyze how the SJC could come to the conclusion that there was no rational basis for this statute because, while baffling, it is simply not essential to the proof which I am arguing.

[44]    Furman v. Georgia, 408 U.S. 238, 383--384 (1972) (Burger, C.J., dissenting); see Mass. Const. Part I, Art. XX. (“The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.”); Mass. Const. Part I, Art. XXI. (“The freedom of deliberation, speech and debate, in either house of the legislature (is) essential to the rights of the people.”).

[45]    Massachusetts Community College Council v. Labor Relations Commn., 402 Mass. 352, 354 (1988). See also Singer, Sutherland Statutory Construction § 46.01, at 81 (5th ed. 1992), quoting from Caminetti v. United States, 242 U.S. 470, 485 (1917).

[46]    Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“The plaintiffs have asked us to interpret a statute, G. L. c. 207, § 12, and we are obliged to do so in the way our Legislature intended.”); Devine v. Board of Health of Westport, No. 05-P-428 (April 14, 2006) (“We interpret a statute "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated ... [and] the statutory language itself is the principal source of insight into the legislative purpose." Commonwealth v. Smith, 431 Mass. 417, 421 (2000), quoting from Registrar of Motor Vehicles v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981). See Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622-623 (1983). We attempt to construe the language such that all provisions will be given effect and no part rendered inoperative or superfluous. Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998).”).

[47]    Massachusetts Assn. of Cosmetology Schools Inc. v. Board of Registration in Cosmetology, 40 Mass. App. Ct. 706 (1996) (“Properly promulgated regulations such as the manicuring regulations are presumptively valid and are not to be declared void unless their provisions cannot by any reasonable construction be interpreted as in harmony with legislative mandate. Berrios v. Department of Pub. Welfare, 411 Mass. 587, 594--595 (1992), S.C., 414 Mass. 1004 (1993).”); Fifty-One Hispanic Residents of Chelsea v. School Comm. of Chelsea, 421 Mass. 598, 606 (1996) ("Constitutional analysis begins with a presumption of statutory validity.").

[48]    Telesetsky v. Wight, 395 Mass. 868, 872 (1985); Commonwealth v. Rahim, 441 Mass. 273 (2004) (“In particular, absent clear indication to the contrary, statutory language is to be given its "ordinary lexical meaning." Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 176 (1981). Randall's Case, 331 Mass. 383, 385 (1954).”); see Goodridge v. Dept. of Public Health, SJC-08860, November 18, 2003 (“We interpret statutes to carry out the Legislature's intent, determined by the words of a statute interpreted according to "the ordinary and approved usage of the language." Hanlon v. Rollins, 286 Mass. 444, 447 (1934)”).

[49]    Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“The provisions of G. L. c. 207 "must be construed, where capable, so as to constitute a harmonious whole consistent with the legislative purpose." Labor Relations Comm'n v. Selectmen of Dracut, 374 Mass. 619, 624 (1978), quoting Chief of Police of Dracut v. Dracut, 357 Mass. 492, 499 (1970). See Polaroid Corp. v. Commissioner of Revenue, 393 Mass. 490, 497 (1984) ("words of a statute must be construed in association with other statutory language and the general statutory plan"). Thus, harmony and consistency within the statutory scheme set forth in G. L. c. 207 necessitate reading §§ 11 and 12 together. See LeClair v. Norwell, 430 Mass. 328, 333 (1999) (statutory language not read in isolation).”); Telesetsky v. Wight, 395 Mass. 868, 872, 873 (1985). See also Commonwealth v. Welch, SJC-09342 (2005) (“This apparent ambiguity in the statutory language is resolved by reference to the remaining portions of the statute. See Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967), quoting Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85 (1946) ("None of the words of a statute is to be regarded as superfluous ... so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature"). See also Kargman v. Commissioner of Revenue, 389 Mass. 784, 788 (1983) ("statutes should be interpreted as a whole to constitute a consistent and harmonious provision"); Commonwealth v. Adams, 389 Mass. 265, 273 (1983) (following "basic principle of statutory construction that a statute must be read as a whole").); Kobrin v. Gastfriend, SJC-09251 (2005) (“’[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.... When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' ‘ (Citations omitted.) Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253- 254 (1992), quoting Rubin v. United States, 449 U.S. 424, 430 (1981). ‘Courts are not free to read unwarranted meanings into an unambiguous statute even to support a supposedly desirable policy not effectuated by the act as written.’ 2A N.J. Singer, Sutherland Statutory Construction § 46:1, at 129 (6th ed.2000).”).

[50]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (“The everyday meaning of "marriage" is "[t]he legal union of a man and woman as husband and wife," Black's Law Dictionary 986 (7th ed.1999), and the plaintiffs do not argue that the term "marriage" has ever had a different meaning under Massachusetts law.”); but see Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“Rather than strike down the marriage laws, however, we redefined the common law and "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . . Moreover, because Goodridge's discussion of marriage was based on ‘the undefined word 'marriage' as used in G. L. c. 207,’ id. at 319, it logically follows that Goodridge's redefinition of civil marriage applies to the entire marriage statute (G. L. c. 207).”).

[51]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)

[52]    See Adoption of Marlene, 443 Mass. 494, 497-498 (2005) (additional citations omitted). Moreover, "[w]here the draftsmanship of a statute is faulty or lacks precision, it is our duty to give the statute a reasonable construction." Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622 (1983), quoting from School Comm. of Greenfield v. Greenfield Educ. Assn., 385 Mass. 70, 79-80 (1982). Courts also have a duty to "view[ ] the statutory scheme as a whole; and [to] avoid[ ] a construction which would negate legislative intent or defeat its intended utility." Milton Commons Assocs. v. Board of Appeals of Milton, 14 Mass.App.Ct. at 116-117 (citations omitted). See generally Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass.App.Ct. 282, 286 (1996).

[53]    Commonwealth v. Sires, 413 Mass. 292 (1992) (Fn12) (“We did not, however, redefine involuntary manslaughter.”); Gilligan v. Attorney General, 413 Mass. 14 (1992) (“[W]e did not redefine the concept of appropriation or suggest that an appropriation occurs in every situation where public monies are designated to be devoted to a specific purpose.”).

ALSO SEE DISSENTING OPINIONS THAT DON’T SEEM TO GRASP THE FACT THAT THE SJC COULD NOT LEGISLATE AND IN FACT WAS NOT DOING SO.

[54]    See art. 30 of the Massachusetts Declaration of Rights ("the judicial shall never exercise the legislative and executive powers, or either of them"); see also Mitchell v. Mitchell, 312 Mass. 154 (1942) (“If the omission was intentional, no court can supply it. If the omission was due to inadvertence, an attempt to supply it by including the omitted case would be tantamount to adding to a statute a meaning not intended by the Legislature.”); Taunton Greyhound Assoc. Inc. v. State Racing Commission, 10 Mass. App. Ct. 297 (1980) (“We cannot substitute our views and judgment for those of the Legislature . . ..”); Druzik v. Bd. of Health of Haverhill, 324 Mass. 129, 138-39 (1949) (“It is only when a legislative finding cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it that a court is empowered to strike it down. Slome v. Chief of Police of Fitchburg, 304 Mass. 187, 189. If the question is fairly debatable, courts cannot substitute their judgment for that of the Legislature.”); Hancock v. Commissioner of Education & Others SJC-09267 February 15, 2005 (Indeed, Chief Justice Marshall knows that “policy choices . . . are properly the Legislature's domain.” . . . The education clause itself explicitly leaves to the legislative and executive branches responsibility for determining the form and scope of its obligations. See Part II, c. 5, § 2. Where the drafters explicitly conferred authority on only two of the branches of government, we cannot ordain the third branch "overseer."); see also Slome v. Chief of Police of Fitchburg, 304 Mass. 187 (1939) (Judicial inquiry does not extend to the expediency, wisdom or necessity of the legislative judgment for that is a function that rests entirely with the law-making department.”); Mass. Federation of Teachers v. Bd. of Education, 436 Mass. 763 (2002) (“’respect for the legislative process means that it is not the province of the court to sit and weigh conflicting evidence supporting or opposing a legislative enactment.’ Id., quoting Shell Oil Co. v. Revere, 383 Mass. 682, 687 (1981).”); ROGERS v. TENNESSEE, ___ U.S. ___ (2001) (Scalia, J. dissenting) (“It may well be that some common-law decisions of the era in fact changed the law while purporting not to. But that is beside the point. What is important here is that it was an undoubted point of principle, at the time the Due Process Clause was adopted, that courts could not "change" the law.).

[55]    CITE Massachusetts Constitution

[56]    See Bratcher v. Galusha, 417 Mass. 28 (1994) (The plaintiff's request for a liberal interpretation of the statute is essentially a request that this court rewrite or ignore the plain language of the statute. We decline to intrude on the Legislature's function or to disregard the plain meaning of the statute). Such an act would be beyond the province of the Court and therefore a violation of the separation of powers doctrine. See Commissioner of Mental Health v. Gagne, 19 Mass. App. Ct. 545 (1985) (“We recognize, however, that it is beyond our province to rewrite the statute.”); Cahill v. Commonwealth, 15 Mass. App. Ct. 914. (It is not for us to assume a legislative role and rewrite the statute. [citing] Rosenbloom v. Kokofsky, 373 Mass. 778, 780 (1977)).

[57]    Commonwealth v. Santos, 58 Mass. App. Ct. 701 (2003); Commonwealth v. Smith, 46 Mass. App. Ct. 822, 826 (1999), S.C., 431 Mass. 417, 425 (2000), quoting from King v. Viscoloid Co., 219 Mass. 420, 425 (1914).(The Court cannot disregard the legislature’s decisions in enacting statutes.); Commonwealth v. Rahim, 441 Mass. 273 (2004) (The Legislature's choice to include only "consanguinity" cannot be disregarded.); Commonwealth v. Smith, 46 Mass. App. Ct. 822 (1999) ("The scope of the authority of [an appellate] court to interpret and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body. See art. 30 of the Massachusetts Declaration of Rights." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539 (1996), cert. denied, 520 U.S. 1131 (1997). We have no right to read into the incest statute "a provision which the Legislature did not see fit to put there. ..." King v. Viscoloid Co., 219 Mass. 420, 425 (1914). To do so would amount to judicial legislation, which is forbidden by art. 30 of the Massachusetts Declaration of Rights. See Justice Qua's comments in Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945); Bronstein v. Prudentials Ins. Co. of America, 390 Mass. 701 (1984) (There is “no right to conjecture what the Legislature would have enacted if they had foreseen the occurrence of a case like this; much less can [it] read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose.”); General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999); King v. Viscoloid Co., 219 Mass. 420, 425 (1914).

[58]    Commonwealth v. Poissant, SJC-09355 (2005) citing Commonwealth v. Callahan, 440 Mass. 436, 443 (2003), quoting Commonwealth v. McLeod, 437 Mass. 286, 294 (2002), and cases cited. See Civitarese v. Middleborough, 412 Mass. 695, 700 (1992) ("We will not read into the plain words of a statute a legislative intent that is not expressed by those words").

[59]    Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945). (“We do not pretend ignorance of the controversy which has been carried on in this Commonwealth, sometimes with vehemence, over so called "literary censorship." With this background in mind it may not be out of place to recall that it is not our function to assume a "liberal" attitude or a "conservative" attitude. As in other cases of statutory construction and application, it is our plain but not necessarily easy duty to read the words of the statute in the sense in which they were intended, to accept and enforce the public policy of the Commonwealth as disclosed by its policymaking body, whatever our own personal opinions may be, and to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions. . . . . If it is thought that modern conditions require that such an exception be made, the Legislature and not this court should make it.”); Rogers v. Tennessee, ___ U.S. ___ (2001) (Scalia, J. dissenting) ("Massachusetts Chief Justice Hutchison could declare in 1767 that `laws should be established, else Judges and Juries must go according to their Reason, that is, their Will.' It was also imperative `that the Judge should never be the Legislator: Because, then the Will of the Judge would be the Law: and this tends to a State of Slavery.' " Or, as Judge Swift put it, courts "ought never to be allowed to depart from the well known boundaries of express law, into the wide fields of discretion." 2 Swift 366.” quoting 1 M. Horwitz, The Transformation of American Law 1780-1860, p. 5 (1977).).

[60]    Shell Oil Co. v. Revere, 383 Mass. 682 (1981) (“Our deference to legislative judgments reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the "undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature." Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977). Thus, it is not the court's function to launch an inquiry to resolve a debate which has already been settled in the legislative forum. "[I]t [is] the judge's duty ... to give effect to the will of the people as expressed in the statute by their representative body. It is in this way ... that the doctrine of separation of powers is given meaning." Commonwealth v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring); Commonwealth v. Gonsalves, 432 Mass. 613, 619 (2000) (“An act of one branch of government does not violate art. 30 unless the act "unduly restrict[s]" a core function of a coordinate branch. See id. "The essence of what cannot be tolerated is the creation of interference by one department with the power of another department." New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 410 (1979).”).

[61]    find citation

[62]    See Commonwealth v. Starling, 382 Mass. 423 (1981) (“Each of those proposals would redefine the elements of murder, eliminating the expression "malice aforethought." But that expression is embedded in our statutes. G. L. c. 265, § 1. G. L. c. 277,§ 39. See Commonwealth v. Desmarteau, 16 Gray 1, 9 (1860). Modernization of jury instructions on the subject, however desirable, would savor of statutory revision, a Legislative prerogative.”).

[63]    See School Committee of Lowell v. Mayor, 265 Mass. 353 ("There is, however, a slightly different but closely analogous principle which in our opinion is a bar to the maintenance of this petition. That principle is that, where a statute has been enacted seemingly intended to cover the whole subject to which it relates, including a remedy for its infraction, other provisions of the common law, including such as are remedial in nature, are thereby superseded. Many of our decisions illustrate the application of that principle."); Decker v. The Black & Decker Manufacturing Co., 389 Mass. 35 (1983) ("[C]hanges in prior law are necessary in any ordered society, and to argue that art. 11 prohibits alterations of common law rights as such, especially in the face of the specific provision to the contrary in art. 6,(fn10) . . .fn10 Part II, c. 6, art. 6, of the Massachusetts Constitution provides: "All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the Legislature;” To uphold the third-party plaintiffs' argument would be tantamount to placing "certain rules of the 'common law' ... above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and of the flexibility required for the healthy growth of the law." Freezer Storage, Inc. v. Armstrong Cork Co., 47 Pa. 270, 281 (1978), quoted with approbation in Klein v. Catalano, 386 Mass. 701, 713 (1982).”).

[64]    Dalli v. Board of Educ., 358 Mass. 753 (1971), ("To attempt to interpret this [statute] as including those in the category of the plaintiff would be to engage in a judicial enlargement of the clear statutory language beyond the limit of our judicial function. We have traditionally and consistently declined to trespass on legislative territory in deference to the time tested wisdom of the separation of powers as expressed in art. [30] of the Declaration of Rights of the Constitution of Massachusetts even when it appeared that a highly desirable and just result might thus be achieved." Id. at 759.)

[65]    Cf. Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (With a superbly ignorant understanding of the separation of powers, Judge Ireland explains that even though the SJC did not construe Chapter 207 to permit same-sex marriage, the SJC reformulated the meaning of that word, thus, changing the marriage statute. He tries to explain: “Rather than strike down the marriage laws, however, we redefined the common law and "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . . We did not reach the question whether the Massachusetts State Constitution contains a right to marry, nor did we find that G. L. c. 207 could be "construed to permit same-sex couples to marry. . . . Moreover, because Goodridge's discussion of marriage was based on ‘the undefined word 'marriage' as used in G. L. c. 207,’ id. at 319, it logically follows that Goodridge's redefinition of civil marriage applies to the entire marriage statute (G. L. c. 207).”).

[66]    See Goodridge, supra

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To AmericaPart IV- Changing Common Law Did Not Change the Constitution

The SJC’s act of reformulating the common law meaning of marriage in contradiction to the constitutional meaning of the term marriage, likewise, did not and could not change the constitutional meaning of the term and, therefore, is in and of itself an explicitly unconstitutional act. As a result it also has no legal significance.


The word “marriage” exists and therefore is already defined in our Massachusetts Constitution.[67] That word has been there since the original signing.68] Its meaning is no less capable of being defined in the Constitution than it was capable of being construed in the statute.[69] The SJC, nonetheless, ignored the word marriage in the Massachusetts Constitution.

“It is a fundamental principle of constitutional construction that every word and phrase in the Constitution was intended and has meaning. Passing public passions and emotions . . . have little to do with the meaning of the Constitution, as it is written. Commonwealth v. O'Neal, 369 Mass. 242 (1975) (TAURO, C.J., concurring). All [the] words [of the Constitution] must be presumed to have been chosen advisedly." Powers v. Secretary of Administration, 412 Mass. 119 (1992); Commonwealth v. Bergstrom, 402 Mass. 534, 541 (1988), quoting Mount Washington v. Cook, 288 Mass. 67, 70 (1934). Its phrases are to be read and construed according to the familiar and approved usage of the language. Yont v. Secretary of the Commonwealth, 275 Mass. 365 (1931), Jones v. Robbins, 8 Gray, 329, 340. Tax Commissioner v. Putnam, 227 Mass. 522, 523, 524. Attorney General v. Methuen, 236 Mass. 564, 573. Loring v. Young, 239 Mass. 349, 372. United States v. Sprague, 282 U. S. 716.).

The word “marriage,” because it exists in the Constitution, therefore contains a specific meaning; the very same meaning that the Supreme Judicial Court found that the marriage statute contains; the union between one man and one woman.[70] The only reasonable interpretation that can be given to that word is the same interpretation that was given to that word in the statute; i.e., that the Framers did not intend that same-sex couples be licensed to marry.[71]

Once it is comprehended that the word “marriage” in the Constitution has a fixed definition, the fatal flaw of the Goodridge decision becomes clear. It is an inherent logical contradiction to say that the current definition of a word (“marriage”) that exists explicitly in the Constitution since its original signing, somehow is unconstitutional because that definition violates other words in the Constitution (ensuring equal protection and due process); words that were written at the exact same time as the word in question. Such a contradiction “stands constitutional analysis on its head.”[72] It is a basic canon of . . . interpretation that "general . . . language must yield to that which is more specific." TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9 (2000) quoting Risk Mgt. Found. of Harvard Med. Insts., Inc. v. Commissioner of Ins., 407 Mass. 498, 505 (1990).

To ignore the use of the explicit term in the Constitution, while declaring its actual (and limiting) definition unconstitutional, would render the use of that word “marriage,” as it exists in the Constitution, meaningless. But “words of the Constitution cannot be ignored as meaningless.”[73] The words of the Constitution and its Amendments "are mandatory and not simply directory. They are highly important. There must be compliance with them. (emphasis added)”[74] “If the meaning of [the word] is plain and [it is] not controlled by other words or by some clear demonstration that [it is] not to be taken in a literal sense, the plain literal meaning must prevail.”[75] No word, therefore, can be construed out of the Constitution.[76] “[W]here the intention is clear there is no room for construction and no excuse for interpolation or addition."[77]

A specific, intended meaning, thus, must be attributed to the word “marriage” because it exists explicitly in the Constitution.[78] The SJC was required, but failed, to give meaning to that term in addressing the “constitutionality” of the definition of that same word as it is used in the statute, Chapter 207.[79] It was not within the power of the Court to choose to neglect that word.[80]

A statute is presumed to be constitutional, and every rational presumption in favor of its validity must be made.[81] While it is clearly within the power of the Court to interpret the Constitution,[82] “such power does not include the right to abdicate the obligation imposed on [the Court] placed on [it] by the Constitution” which is to see that its provisions and conditions are at all times faithfully observed and to interpret the words of the Constitution fairly.[83] Indeed, it was a dereliction of the Court’s Constitutional responsibility to do otherwise.[84]

“It is essential … that there be an impartial interpretation of the laws.”[85] “[J]udges are bound by the Constitution and must see that its provisions and conditions are at all times faithfully observed, they must determine that question with sole reference to the facts of the case and the language of the Constitution and without the slightest regard to their own personal views as to the desirability or otherwise of the law involved.” Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951). “[J]udges cannot look to public opinion polls or election results for constitutional meaning.” Commonwealth v. O'Neal, 369 Mass. 242 (1975) (Tauro, C.J., concurring). "A court is only to inquire into whether the Legislature had the power to enact the statute and not whether the statute is wise or efficient."[86]

Yet, the four justices improperly set aside a portion of the constitution that offended their political sensibilities; the meaning of the word marriage as it exists in the Constitution. As was explained in Marbury v. Madison:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. Marbury v. Madison, 1 Cranch 137, 177-178.

The SJC was, therefore, bound to uphold the higher law of the Constitution.[87]

In contrast, however, the SJC attempted to imaginatively “construe” the words in the Constitution to institute a revolutionary power never accepted by the people or ratified through their elected representatives; and in direct conflict with the definition of an existing word in the document. The Court’s attempt to ignore the word “marriage,” however, does not make that word legally ineffective in the Constitution.[88]

No word can be construed out of the Constitution.[89] The Court “cannot achieve by indirection what it clearly could not do directly.”[90] To change the definition of the word “marriage” that exists in the Constitution “is within the power of the people alone.”[91] “When the Constitution is thus amended, the popular will has been properly exercised; the fundamental document's principles have been altered in accordance with the procedures set forth in the compact. Only through an amendment can mass passions affect constitutional meaning and, absent an amendment, the Constitution stands as an unbreachable bulwark for the individual against those mass passions and the political power of the majority.” Commonwealth v. O'Neal, 369 Mass. 242 (1975) (Tauro, C.J., concurring) (emphasis added). This rule applies likewise to the political passions of the minority (e.g., the four SJC justices, the plaintiffs in Goodridge, and other promoters of the same-sex marriage agenda).

Once the will of the people, as expressed in the Constitution, “has been ascertained, it must prevail.” Loring v. Young, 239 Mass. 349, 376, 373 (1921). As an integral part of the whole document,[92] the word “marriage” could not be declared unconstitutional by the SJC because it is the Constitution. Words of the Constitution cannot, as the Goodridge Court claims, “violate the Constitution” because words of the Constitution cannot be unconstitutional.[93] The Goodridge decision, therefore, overstepped the limits imposed on and the authority granted to the SJC under the Constitution. To attempt to reformulate marriage under the common law using a definition that directly negates the definition of the word “marriage” as it exists in the Constitution was an unconstitutional act of the SJC in and of itself.[94]

The SJC did not have the power[95] to and, therefore, did not and could not change the definition of the term marriage under the laws of Massachusetts. The SJC’s decision to reformulate marriage and to declare the statute unconstitutional is void.[96] That illegal (and therefore powerless) decision must be revisited[97] or at the very least ignored[98] as meaningless. While being a huge victory politically for those that desire to change the concept of “family,” it has no actual legal significance.

ENDNOTES
[67]    See Massachusetts Constitution Part II, Chapter III, Article V. (“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.”); see also Cohen v. Atty. General, 357 Mass. 564 (1970) (“In Tax Commr. v. Putnam, 227 Mass. 522, 523--524 (1917), the court said: "The Constitution of Massachusetts is a frame of government for a sovereign power. It was designed by its framers and accepted by the people as an enduring instrument, so comprehensive and general in its terms that a free, intelligent and moral body of citizens might govern themselves under its beneficent provisions through radical changes in social, economic and industrial conditions. It declares only fundamental principles as to the form of government and the mode in which it shall be exercised. Certain great powers are conferred and some limitations as to their exercise are established. The original Constitution and all its Amendments together form one instrument. It is to be interpreted in the light of the conditions under which it and its several parts were framed, the ends which it was designed to accomplish, the benefits which it was expected to confer, and the evils which it was hoped to remedy. It is a grant from the sovereign people and not the exercise of a delegated power. It is a statement of general principles and not a specification of details. Amendments to such a charter of government ought to be construed in the same spirit and according to the same rules as the original. It is to be interpreted as the Constitution of a State and not as a statute or an ordinary piece of legislation. Its words must be given a construction adapted to carry into effect its purpose." . . . Again, in Attorney Gen. v. Methuen, 236 Mass. 564, 573 (1921), the court said:. Its 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.")

[68]    CITE

[69]    See Goodridge (defining the word marriage)

[70]    See Goodridge v. Dept. of Health Cordy, J. (dissenting, with whom Spina and Sosman, JJ., join) (“Limiting marriage to the union of one man and one woman does not impair the exercise of a fundamental right. Civil marriage is an institution created by the State. In Massachusetts, the marriage statutes are derived from English common law, see Commonwealth v. Knowlton, 2 Mass. 530, 534 (1807), and were first enacted in colonial times. Commonwealth v. Munson, 127 Mass. 459, 460 (1879). They were enacted to secure public interests and not for religious purposes or to promote personal interests or aspirations. (See discussion infra at--). As the court notes in its opinion, the institution of marriage is "the legal union of a man and woman as husband and wife," ante at, and it has always been so under Massachusetts law, colonial or otherwise.”).

[71]    See Compare Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (“The only reasonable explanation is that the Legislature did not intend that same-sex couples be licensed to marry.”); see also Opinion of the Justices to the Senate, 324 Mass. 746, 748-49 (1949) (“The function of a written constitution adopted by the people is to establish by their votes an objective standard of conduct by which all departments of the government, executive, legislative and judicial alike, shall be bound, until the constitution is changed by another vote of the people. In order that this function may be performed, and that the will of the people may prevail, it is necessary that the words inserted into the constitution by their votes be interpreted as they meant them to be interpreted at the time and in the circumstances of their adoption. Accordingly, this court said in Attorney General v. Methuen, 236 Mass. 564, at page 573, “An amendment to the Constitution is one of the most solemn and important of instruments. . . . Its 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.”).

[72]    Commonwealth v. Nissenbaum, 404 Mass. 575 (1989) (“Implicit in this latter approach is the thought that legislative enactments can amend the Constitution of the Commonwealth. Surely, this stands constitutional analysis on its head.”).

[73]    See Commonwealth v. Johnson, 417 Mass. 498 (1994) (the words of a Constitution "should be interpreted in the sense most obvious to the common intelligence." Bergstrom, supra at 541, quoting Opinion of the Justices, 365 Mass. 655, 657 (1974), and that "[w]ords of the Constitution cannot be ignored as meaningless" since "[a]ll [the] words [of the Constitution] must be presumed to have been chosen advisedly." Bergstrom, supra at 541, quoting Opinion of the Justices, 332 Mass. 769, 777 (1955), and Mount Washington v. Cook, 288 Mass. 67, 70 (1934). ); see also Cleaveland v. Malden Savings Bank, 291 Mass. 295 (1934).

[74]    Town of Mount Washington v. Cook, 288 Mass. 67 (1934)

[75]    Colantouni v. Selectmen of Belmount, 326 Mass. 778 (1951); Attorney General v. Methuen, 236 Mass. 564, 572—573. Cf. Teamsters v. Terry, 494 U.S. 558 (1990) (Kennedy, J., O'Connor, J., and Scalia, J., dissenting) (“If we abandon the plain language of the Constitution to expand the jury right, we may expect Courts with opposing views to curtail it in the future.”); Coleman v. Alabama, 399 U.S. 1 (1970) (Black, J., concurring) (“I can have no part in unauthorized judicial toying with the carefully selected language of our Constitution, which I think is the wisest and best charter of government in existence. . . . For one, I still prefer to trust the liberty of the citizen to the plain language of the Constitution rather than to the sense of fairness of particular judges.”); Cohen v. Hurley, 366 U.S. 117 (1961) Note 23 (“The notion that a violation of the plain language of the Constitution can gain legal stature by long-continued practice is not one I can subscribe to.”); Smith v. California, 361 U.S. 147 (1959) (Black, J., concurring) (“It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States, 116 U.S. 616, 635 . . . Censorship is the deadly enemy of freedom and progress. The plain language of the Constitution forbids it. I protest against the Judiciary giving it a foothold here.”); Dooley v. U.S., 183 U.S. 151 (1901) (Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Peckham, dissenting) (“The plain language of the Constitution should not be made 'blank paper by construction,' and its specific mandate ought to be obeyed.”).

[76]    Colantouni v. Selectmen of Belmount, 326 Mass. 778 (1951) (“The word "any" cannot be construed out of the sentence.”).

[77]    Town of Mount Washington v. Cook, 288 Mass. 67 (1934) citing Attorney General v. Methuen, 236 Mass. 564, 573, 576. Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 99. In Opinion of the Justices, 271 Mass. 582, 589; United States v. Sprague, 282 U. S. 716, at page 731 (All its words must be presumed to have been chosen advisedly. They must be given their ordinary meaning, and construed to accomplish a reasonable result. Mere words are not to be placed above the plain purpose to be achieved. The aim of all interpretation is to give effect to the dominating idea of the instrument. Statements in the Constitution and its Amendments must be given effect in consonance with the end they are designed to accomplish).

[78]    Colantouni v. Selectmen of Belmount, 326 Mass. 778 (1951) (“Meaning must be given to it.). Compare Kobrin vs. Gastfriend, ___ Mass. ___ SJC-09251 (2005) (“While the dissent makes much of the fact that the Legislature's choice of words was deliberate, see post at (Sosman, J., dissenting), it overlooks the important fact that the Legislature explicitly used the phrase "right of petition under the constitution" in the statute, thus expressly implicating the term's constitutional meaning. See G.L. c. 231, § 59H. The constitutional "right of petition" is a term of art that the Legislature did not adopt casually or accidentally. The Legislature's decision to refer to the right of petition secured in the Federal and State Constitutions must be accorded significance in order to effectuate the legislative intent.”). Cf. Levin v. Wall, 290 Mass. 423 (1935) (“The word “tender” had, at the time when the statute in question was originally enacted, "acquired a peculiar and appropriate meaning in law . . . and therefore, in the construction of that statute, must be given such meaning." G. L. (Ter. Ed.) c. 4, § 6, Third. We are therefore bound in the construction of the statute to give the word that meaning. DOES THAT CASE ADDRESS THIS ISSUE RE THE CONSITUTION; NOT LEGISLATION-àààààààSparhawk v. Sparhawk, 10 Allen, 155, 157. Commonwealth v. Greenwood, 205 Mass. 124, 126. Newman's Case, 222 Mass. 563, 566.”).

[79]    Commonwealth vs. Rahim, SJC-09031, (March 22, 2004)

[80]    Bowe v. Secretary of the Commonwealth , 320 Mass. 230 (1946) (“The people by the Constitution created the legislative branch of government as well as the executive and judicial branches, and conferred and at the same time limited the powers of each of them. Each must act pursuant to the Constitution and within the authority conferred by it.”). Compare Commonwealth vs. Rahim, 441 Mass. 273 (2004) (in construing the words of the statute, the Court explained: “The Legislature's choice to include only [the word] "consanguinity" cannot be disregarded.”); Commonwealth v. Smith, 46 Mass. App. Ct. 822 (1999) (“Finally, the Commonwealth argues that because the defendant's alleged conduct is so shocking and abhorrent, we should extend the definition of "sexual intercourse" to include such conduct. Of course, the defendant's conduct, if true, is shocking and abhorrent. However, "[t]he scope of the authority of [an appellate] court to interpret and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body. See art. 30 of the Massachusetts Declaration of Rights." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539 (1996), cert. denied, 520 U.S. 1131 (1997). We have no right to read into the incest statute "a provision which the Legislature did not see fit to put there. ..." King v. Viscoloid Co., 219 Mass. 420, 425 (1914). To do so would amount to judicial legislation, which is forbidden by art. 30 of the Massachusetts Declaration of Rights. See Justice Qua's comments in Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945).”)

[81]    See St. Germaine v. Pendergast, 416 Mass. 698, 703 (1993); American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 190 (1978); Commonwealth v. Leis, 355 Mass. 189, 200 (1969) (Kirk, J. concurring).

[82]    McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 600 (1993) ("Without in any way attempting to invade the rightful province of the Legislature to conduct its own business, we have the duty, certainly since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803), to adjudicate a claim that a law and the actions undertaken pursuant to that law conflict with [or fall short of] the requirements of the Constitution. 'This,' in the words of Mr. Chief Justice Marshall, 'is of the very essence of judicial duty.'" Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 553 (1979). See Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 642 (1981). See also Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 244 (1946).”).

[83]    Cf. McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 600 (1993) (While it is clearly within the power of the Commonwealth to delegate some of the implementation of the duty to local governments, such power does not include a right to abdicate the obligation imposed on magistrates and Legislatures placed on them by the Constitution.); Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945) (“As in other cases of statutory construction and application, it is our plain but not necessarily easy duty to read the words of the statute in the sense in which they were intended, to accept and enforce the public policy of the Commonwealth as disclosed by its policymaking body, whatever our own personal opinions may be, and to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions.”); see also Prigg v. Pennsylvania, 41 U.S. 539 (1842) (“We must take the constitution as we find it! Our duty is to construe, not to legislate! And we are told by good authority, that in the construction of constitutions, the argumentum ab inconvenienti will not answer; we dare not use it. The ita scripta rule is enough for us. If the constitutional provision be defective, there is a constitutional mode to amend it: let us then rather apply to that, than violently wrest the instrument by construction.”).

[84]    McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 607 (1993)

(“. . . the words [of the Constitution] are not merely aspirational or hortatory, but obligatory.”).

[85]    Part I, Art. XXIX, Mass. Const. Also, of relevance, but not absolutely necessary to the argument presented in this article, is the apparent bias of Chief Justice Margaret Marshall of the Supreme Judicial Court which makes the faith in the validity of the Goodridge decision entirely questionable. It is the duty of the Court to be impartial in actions and appearances. In the Matter of Brown, 427 Mass. 146 (1998) (“Judges wield an awesome and final power over the liberty and property of their fellow citizens. This power is the more awesome because in this Commonwealth, as in the Federal system, we are neither elected nor subject to recall or retention elections. This power is tolerable in a democracy because judges speak only for reason and the law. As stated in The Federalist No. 78 (Alexander Hamilton), we have "neither force nor will, but merely judgment." For every litigation at least one-half of those involved are likely to come away sorely dissatisfied, and every citizen has reason to apprehend that one day he might be on the losing side of our exercise of judgment. Therefore, this arrangement requires an exacting compact between judges and the citizenry. It is not enough that we know ourselves to be fair and impartial or that we believe this of our colleagues. Our power over our fellow citizens requires that we appear to be so as well. How else are ordinary citizens to have the faith in us that we have in ourselves and Justice Brown's colleagues testified that they have in him? An impartial manner, courtesy, and dignity are the outward signs of that fairness and impartiality we ask our fellow citizens, often in the most trying of circumstances, to believe we in fact possess. Surely it is arrogance for us to say to them that we may not seem impartial, but we know we are, and so they must submit. Precisely because the public cannot witness, but instead must trust, what happens when a judge retires to the privacy of his chambers, the judiciary must behave with circumspection when in the public eye.”); In the Matter of Edward Desaulinier, 360 Mass. 787 (1972) (“It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit." . . .Every Massachusetts judge should be aware, as a matter of tradition and instinct, that there exist standards governing his judicial conduct. Some of these standards, such as the duty of honesty, fairness, impartiality, integrity of decision and reasoning, independence, and diligence, hardly need to be stated. These are affirmative standards and duties which, if observed, go far to preserve the courts from scandal or corruption. . . . "[p]ublic confidence in the judiciary is eroded by irresponsible or improper conduct by judges. The judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen, and he should do so freely and willingly. . . ."). Commonwealth v. O'Neal, 369 Mass. 242 (1975) (“The great responsibility of a judge is to exercise his best judgment in applying his interpretation of the law to the facts. No judge should ever be concerned with whether his decision will be popular or unpopular. He does his job always with complete awareness that political considerations of the day, contemporary public emotions (no matter what their motivation), and personal philosophies are completely foreign and irrelevant to the exercise of his Judicial power. This is the very essence of judicial duty---no less should be given and no more should be required.”).

As has been pointed out by some of the people of Massachusetts, Margaret Marshall was extremely biased and the news media has ignored her improper conduct. On May 7, 1999, then Associate Justice Marshall appeared as a keynote speaker at the annual fundraiser for the Massachusetts Lesbian & Gay Bar Association. See http://www.article8.org/docs/general/marshall.htm (“Chief Justice Margaret Marshall Violated the Code of Judicial Conduct: Supreme Judicial Court Chief Justice Margaret Marshall, the prime mover behind the same-sex marriage ruling and author of the official decision, seriously violated the Massachusetts Code of Judicial Conduct. She was the keynote speaker at a fundraiser for a major homosexual legal advocacy group prior to hearing the Goodridge case. At that event she publicly advocated for extensions of homosexual rights.

According to published reports by the event's organizers, Marshall noted that "open advocacy for equal rights on behalf of people who have been discriminated against on the basis of sexual orientation has become a powerful piece of the general move for civil liberties of all people." [direct quote from Marshall] The Massachusetts Lesbian and Gay Bar Association (MLGBA) also wrote on their website that "The Justice encouraged those lawyers in attendance to pay attention to the growing body of gay-friendly international jurisprudence."

The Massachusetts Code of Judicial Conduct clearly states that judges may not participate in fundraising events, even for non-profit organizations. Furthermore, judges are required to disqualify themselves whenever they have an acknowledged bias on an issue.

To quote Canon 5, Section B of the Code of Judicial Conduct (CJC, effective 1998):

Civic and Charitable Activities. A judge should not solicit funds for any educational, religious, charitable, fraternal, or civil organization, or use or permit the use of the prestige of his office for that purpose … He should not be a speaker or the guest of honor at an organization's fund raising events, but he may attend such events.

From Canon 2, Section B:

[A judge should not] convey or permit others to convey the impression that they are in a special position to influence him.

From Canon 3, Section B(5):

A judge shall perform judicial duties without bias or prejudice.

Additionally, Marshall was in violation of the later version of the Code in effect at the time of the Goodridge ruling (November 18, 2003), which she herself approved. Since she clearly had a publicly acknowledged bias in the case, she should have disqualified herself from hearing the case. As the commentary to Section 3D of the updated Code (effective October 10/1/03) outlines:

Judges are required by this Section to participate actively in maintaining and preserving the integrity of the judicial system…. Other Code violations by a judge … require appropriate action by the judge who has knowledge of them. Examples include but are not limited to: speaking or being the guest of honor at an organization's fund-raising event…

From Section 3E(1), Disqualification:

"A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."

From the Commentary of the above section:

"A more than de minimis interest … may include non-financial interests, as an example, support by the judge of an organization advocating a particular position, where the interests of the organization could be substantially affected by the outcome of the proceeding.”

[86]    St. Germaine v. Pendergast, 416 Mass. 698, 703 (1993). See Leibovich v. Antonellis, 410 Mass. 568, 576 (1991).

[87]    Schaffer v. Leimberg, 318 Mass. 396 (1945) (“[T]he courts are bound to enforce the higher law of the Constitution in case of conflict. Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Railway, 284 U. S. 370, 388. Pearson v. Walling, 138 Fed. (2d) 655, 658.”).

[88]    Cf. Slome v. Chief of Police of Fitchburg, 304 Mass. 187 (1939) (“As the judgment of the Legislature, that the regulation of the price signs will prevent deception to the public, cannot be pronounced irrational, the individual citizen cannot substitute his judgment for it and show that the signs, which he maintains contrary to the terms of the statute, do not mislead the public. He must conform to the statutory standard. Commonwealth v. Schaffner, 146 Mass. 512. Commonwealth v. Russell, 162 Mass. 520. Commonwealth v. Pear, 183 Mass. 242; affirmed sub nomine Jacobson v. Massachusetts, 197 U. S. 11. Commonwealth v. Wheeler, 205 Mass. 384. Commonwealth v. Phelps, 210 Mass. 109. Commonwealth v. Moore, 214 Mass. 19.); see Commonwealth v. O'Neal, 369 Mass. 242 (1975) dissent (“It is inconceivable to me that the framers intended to end capital punishment by the Amendment. Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power."); Bureau of Old Age Ass. of Natick v. Comm'r of Public Welfare, 326 Mass. 121 (1950) (“But an administrative board or officer has no authority to promulgate rules and regulations which are in conflict with the statutes or exceed the authority conferred by the statutes by which such board or office was created.”); Massachusetts Municipal Wholesale Electric Co. v. Energy Facilities Siting Council, 411 Mass. 183 (1991) (“Since the enabling statute clearly endorses the concept of joint forecasts, any attempt by the council to restrict or to eliminate joint forecasts exceeds the council's legislative mandate and is void. . . . [A]n administrative agency has no authority to promulgate rules or regulations that conflict with the statutes or exceed the authority conferred by the statutes by which the agency was created. Simon v. State Examiners of Electricians, 395 Mass. 238, 241 (1985).”); Commonwealth v. Johnson Wholesale Perfume Co. Inc., 304 Mass. 452 (1939) (“When a subject has been fully regulated by statute an administrative board cannot further regulate it by the adoption of a regulation which is repugnant to the statute.”); Borggaard v. Dept. of Public Works, 298 Mass. 417 (1937) (“The plaintiff is entitled to relief against any attempt to enforce the rule in question.”).

[89]    Colantouni v. Selectmen of Belmount, 326 Mass. 778 (1951) (“The word "any" cannot be construed out of the sentence.”).

[90]    Commonwealth v. Taylor, 428 Mass. 623 (1999) (“There is nothing to suggest that the judge granted this continuance for any other reason than to impede the Commonwealth's prosecution of the case. This was an error of law. . . . We therefore decline to permit judges to achieve by indirection what they clearly cannot do directly.”).

[91]    Commonwealth v. Lee, 324 Mass. 714 (1949) (As was said by our predecessors in Opinion of the Justices, 220 Mass. 613, at page 618, "Even the facts stated do not warrant a stretching of the Constitution beyond its fair meaning in order to accomplish an end which at present may be regarded as desirable. The Constitution must be interpreted according to the reasonable import of its words. The principles established by it cannot be varied to meet real or fancied exigencies, but must be applied without modification to new conditions as they arise. The Constitution as framed is the only guide. To change its terms is within the power of the people alone."); see also Mazzone v. Attorney General, 432 Mass. 515, 528 (2000) (“Citizens may overrule a decision based on State constitutional grounds, but may do so only by constitutional amendment.”).

[92]    Lincoln v. Secretary of the Commonwealth, 326 Mass. 313 (1950) (“General Provisions, II, is not to be viewed as an isolated sentence, but the amendment of which it is a part should be read as a whole.”).

[93]    Even the Canadian Court understood this basic principle of Constitutional Law. See Halpern v. Canada, ___ ____ ____ ____ (“The Association also relies on New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at 373, where McLachlin J. stated: “It is a basic rule...that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution.”).

[94]    Cohen v. Atty. General, 357 Mass. 564 (1970) (“We are bound only by "the Constitution of 1780 and its amendments ... [which constitute] the fundamental law," the "great charter," "the final statement of the rights, privileges and obligations of the citizens and the ultimate grant of the powers and the conclusive definition of the limitations of the departments of State and of public officers." Loring v. Young, 239 Mass. 349, 376, 377 (August 8, 1921). Opinion of the Justices, 233 Mass. 603, 611 (January 20, 1920).”); Commonwealth v. Leis, 355 Mass. 189, 200 (1969) (Kirk, J. concurring) (an unconstitutional overreaching by the judiciary is an act that is “not only not warranted but, indeed, [is] precluded”); see also New Engalnd Merchants Nat'l Bank of Boston v. Frost, 357 Mass. 158 (1970) (“It would make article Ninth self-contradictory or self-defeating in that a non-beneficiary would not merely block an expressly intended beneficiary but would produce an intestacy. We decline to adopt such a construction.”); Anderson v. Secretary of Com., 255 Mass. 366, 368 (1926) (“The Constitution as amended is the direct and fundamental expression of the sovereign will of the citizens of the Commonwealth. . . . It controls as it is written until changed by the authority by which it was established.”).

[95]    Macdonald v. Macdonald, 407 Mass. 196 (1990) (“Our system of government is premised upon subservience to the rule of law. If a judge in the exercise of judicial power loses sight of these principles, the result is autocratic rule by lawless judicial action." Reserve Mining Co. v. Lord, 529 F.2d 181, 188 (8th Cir. 1976). "[T]he right to an impartial decision-maker is required by due process." Arnett v. Kennedy, 416 U.S. 134, 197 (1974) (White, J., concurring in part and dissenting in part). Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (an impartial decision maker is essential).”).

[96]    Unconstitutional actions by any branch of government are void. See Luscomb v. Bowker, 334 Mass. 468 (1956) ("[L]iving under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity with the Constitution; and if they have not been, to treat their acts as null and void."); World-Wide Volkswagen Corp., ___ U.S. ___, 291 (19 ) ("A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere"); Cf. Smith v. Commissioner of Transitional Ass., 431 Mass. 638 (2000) (“A Superior Court judge correctly concluded that 106 Code Mass. Regs. § 203.210(A), promulgated by the Department of Transitional Assistance, was void as contrary to the plain language and purposes of the Welfare Reform Act, St. 1995, c. 5, § 110”); McCracken v. Sears, Roebuck & Co., 51 Mass. App. Ct. 184 (“A void judgment, that is, a 'total want of jurisdiction[,] must be distinguished from an error in the exercise of jurisdiction. . . . Only in the rare instance of a clear usurpation of power will a judgment be rendered void.' Harris v. Sannella, 400 Mass. [392,] 395 [1987], quoting from Lubben v. Selective Serv. Sys., supra." O'Dea, 30 Mass. App. Ct. at 455.”); Compare Somerville v. Somerville Municipal Employees Assoc., 418 Mass. 21 (1994) ("Those portions of an arbitrator's award which exceed the arbitrator's authority are void and may be vacated by a court." Id. at 411.”); Harris v. Sannella, 400 Mass. 392 (1987) (“’A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. . . . A judgment is void if the court from which it issues lacked jurisdiction over the parties, lacked jurisdiction over the subject matter, or failed to provide due process of law. United States v. 119.67 Acres of Land, 663 F.2d 1328, 1331 (5th Cir. 1981).”).

[97]    See Bd. of Assessors of Boston v. Suffolk Law School, 295 Mass. 489 (1936) (“Consent or waiver by the parties cannot confer upon a court or administrative tribunal jurisdiction over a cause which is not vested therein by the law. It is the duty of an appellate court to consider on its own motion whether a cause was within the jurisdiction of the court or tribunal from which the appeal was taken. Santom v. Ballard, 133 Mass. 464. Levangie's Case, 228 Mass. 213, 216--217. Eaton v. Eaton, 233 Mass. 351, 364, and cases cited. And the question of jurisdiction of a cause can be raised by the parties at any stage of the proceedings. Cheney v. Boston & Maine Railroad, 227 Mass. 336, 337--338. Morse v. O'Hara, 247 Mass. 183, 185. Lonergan v. American Railway Express Co. 250 Mass. 30, 40.”); Hancock v. Commisioner of Education, SJC-09267 February 15, 2005, Marshall, C.J. ([Justice Greaney] would nonetheless have us adhere uncompromisingly to a decision which, from its genesis, overstepped the limits imposed on this court by our Constitution. . . . However, when we are called on to revisit a decision, no matter how recently decided or thoughtfully drafted, that is plainly wrong in an area of such constitutional significance as our separation of powers doctrine, we must not let our desire for consistency overpower our commitment to the intellectual honesty of our jurisprudence. . . . Payne v. Tennessee, 501 U.S. 808, 827 (1991), quoting Smith v. Allwright, 321 U.S. 649, 665 (1944) ("when governing decisions are unworkable or are badly reasoned, 'this Court has never felt constrained to follow precedent' "); Vasquez v. Hillery, 474 U.S. 254, 266 (1986) (recognizing exception to stare decisis for precedents that have proved "unworkable, or otherwise legitimately vulnerable to serious reconsideration"). "Stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision.' ... This is particularly true in constitutional cases...." Payne v. Tennessee, supra at 828, quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940). Were stare decisis an absolute rule, we would not have the benefit today of many landmark Supreme Court decisions that vindicated cherished rights after centuries of neglect and corrected misguided judicial decisions to conform to the dictates of the Constitution. Perhaps the most well-known example was the Supreme Court's opinion in Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954), squarely overruling the "separate but equal" doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896). Also of note is Gideon v. Wainwright, 372 U.S. 335 (1963), which overruled Betts v. Brady, 316 U.S. 455 (1942), and established that the constitutional right to counsel under the Sixth Amendment to the United States Constitution was applicable to the States through the Fourteenth Amendment to the United States Constitution. In Mapp v. Ohio, 367 U.S. 643 (1961), the Court determined that evidence obtained by an unconstitutional search was inadmissible in State prosecutions, rejecting its earlier opinion in Wolf v. Colorado, 338 U.S. 25 (1949). And there are other examples. See, e.g., United States v. Darby, 312 U.S. 100 (1941) (holding that Congress has power to exclude products made in violation of wage and hour limits from interstate commerce and overruling Hammer v. Dagenhart, 247 U.S. 251 [1918], among other cases); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (overruling Adkins v. Children's Hosp. of D.C., 261 U.S. 525 [1923], and finding minimum wage laws are not an unconstitutional burden on the right to contract). My belief that the McDuffy opinion should be limited in no way disparages the Supreme Court's decision in Brown v. Board of Educ. of Topeka, supra. To the contrary, I would honor the Brown Court's understanding that, where the Constitution commands it, stare decisis must yield.).

Indeed, “the public has a right to expect the Supreme Judicial Court to correct any abuse of judicial power.” Commonwealth v. Taylor, 428 Mass. 623 (1999) quoting Commonwealth v. Amirault, 415 Mass. 112, 115 n.4 (1993).

[98]    Vasquez, petitioner, 428 Mass. 842 (1999) (“Perhaps if Oregon's requisition were egregiously devoid of even a colorable claim of legislative jurisdiction, the Governor should not have honored it and, if he had, we should not allow it to stand as a basis for depriving a person of his liberty. But that is far from being the case here.” (emphasis added)).

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To AmericaPart V - Changing the Common-law is Legally Insignificant

The SJC’s decision to reformulate the “common law” meaning of marriage is likewise of no legal significance because, unlike Canada, common law marriage is not a recognized legal relationship in Massachusetts.

The SJC’s act of “reformulating” the common law meaning of marriage, also, is of no legal significance; for two reasons. First, common law marriage does not exist in Massachusetts.[99] Second, as already discussed, the common law is subordinate to the marriage statute and to the Massachusetts Constitution.

The SJC, in an unorthodox approach to determining the law of Massachusetts, arrived at its decision to reformulate the definition of marriage and to declare the statute unconstitutional, by relying on a case from Canada, a foreign jurisdiction.[100] The SJC explained that it was relying on the decision in Halpern v. Toronto (City), 172 O.A.C. 276 (2003), by:

“. . . the Court of Appeal for Ontario, the highest court of that Canadian province, when [Canada] considered the constitutionality of the same-sex marriage ban under Canada's Federal Constitution, the Charter of Rights and Freedoms (Charter). See Halpern v. Toronto (City), 172 O.A.C. 276 (2003). Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others." Id. at, quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866). In holding that the limitation of civil marriage to opposite- sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. See Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming the common-law rule of construction of "issue"); Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal immunity).”

While citing Halpern, as authority to institute same-sex “marriage” in Massachusetts, the SJC failed to explain the many and distinct factual differences that make any reliance on that foreign case utterly misplaced.

First of all the Canadian case, was not about the issuance of marriage licenses pursuant to a statutory scheme. The Halpern case was about “common law marriage[101]” that, unlike Massachusetts, exists in some form in Canada. Indeed, the Halpern court specifically addressed this important distinction twice acknowledging that they would not be able to do what they were doing had a statute been at the center of the controversy:

[B]ecause this appeal involves a challenge to a common law, judge-made rule, the analysis involves somewhat different considerations than would apply to a challenge to a legislative provision. Given that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken.

And a little later on in the opinion:

[T]he argument . . . that we should defer to Parliament once we issue a declaration of invalidity is not apposite in these circumstances. Schachter provides that the role of the legislature and legislative objectives is to be considered at the second step of the remedy analysis when a court is deciding whether severance or reading in is an appropriate remedy to cure a legislative provision that breaches the Charter. These considerations do not arise where the genesis of the Charter breach is found in the common law and there is no legislation to be altered. Any lacunae created by a declaration of invalidity of a common law rule are common law lacunae that should be remedied by the courts, unless to do so would conflict with the principles of fundamental justice.

Second, in stark contrast to the SJC’s decision that the term “marriage” in Massachusetts had a fixed meaning, the Canadian court in Halpern found the exact opposite, stating: “In our view, “marriage” does not have a constitutionally fixed meaning.” It’s only definition, according to the Court had come from a common law ruling, and so the Court felt free to “reformulate’ marriage giving it a revolutionary meaning putting itself well outside the realm of jurisprudence and into the policy-making role of a legislature, but at least retaining the claim that it was doing so without violating either a constitution or any ratified statute.

Third, the Canadian approach to Constitutional interpretation is what they referred to as a progressive[102] approach where words are “capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.” This progressive approach to construction of the words of the Constitution is diametrically opposed to the Massachusetts approach to constructing statutory and constitutional meaning. Massachusetts’ law, as revealed by the SJC through case precedent, mandates that the intent of the framers at the time the Constitution was written[103] be revealed by looking at the plain meaning of the Constitution’s words (and that the intent of the legislature in writing the word into the statute be gleaned in the same manner[104]).

Fourth, unlike the Canadian Court, where revolutionary policy-making judges, by turning on its head the definition of marriage in the common law “legalized” same-sex common law marriages there,[105] reformulating the common law definition of marriage in Massachusetts did not legalize same-sex marriages in Massachusetts because Massachusetts does not allow “common law marriage.”[106] Indeed, Massachusetts has a long and consistent history, preceding even the Massachusetts Constitution, of decisions and statutes that clearly establish there is no right to “common law marriage.”[107]

Therefore, unlike in Halpern, the SJC’s reformulation of the term “marriage” in common law did not and could not change the definition of the word “marriage” in the statute nor in the document of the Constitution because the common law is subordinate to statutory law,[108] which is subordinate to Constitutional law.[109]

The Halpern situation and the factual scenario in the Goodridge case are so completely different that it was outright trickery to cite Halpern as persuasive authority for what the Goodridge Court was doing. Like Halpern, the Goodridge Court was reformulating the common law definition of marriage, but given the fact that both legislative wording was at the center of the controversy in Massachusetts (and not in Canada), Halpern clearly could not be relied upon as persuasive authority for establishing the definition of marriage under Massachusetts law. The choice of the SJC to shamelessly ignore these remarkable differences and to disregard the explicit admonition of Halpern is brazen judicial chicanery in the service of a mission to violate sacred oaths of office and to elevate themselves above the law itself.

In attempting to justify its claim to, like Halpern, reformulate common law language, the court relied on two previous Massachusetts cases establishing the authority of the SJC to reinterpret and re-define words in common law. The Court cited: “Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming the common-law rule of construction of "issue") and Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing the common-law rule of certain interspousal immunity).”[110] In stark contrast to the Goodridge facts, neither of those two cases involved the definition of a word that exists in either a “statute’ or in the Massachusetts Constitution. Therefore, once again, the value as precedent of the two citations was of no consequence as support for what the SJC was doing in Goodridge.

In the first of the two cases cited, Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987), the SJC had reinterpreted the word “issue” in a will, but made that reinterpretation prospective out of respect for the principle in law that says that the testator’s intent is what matters when interpreting the words of a will. In a just and fair decision, the SJC decided not to change that word in that document (the testator’s will) because doing so would have changed the intent of the testator.[111] In an effort to avoid that negative consequence, the SJC made its decision prospective for anyone else executing a will from that day forward. There were no statutory or Constitutional words at issue in the Powers case; just the words of a will which due to principles of fairness was not changed in that case but the use of that term in wills written after that decision was published would include the reformulated meaning.

In the second of the two cited cases, Lewis v. Lewis, 370 Mass. 619, 629 (1976), the SJC abrogated the common law doctrine of interspousal immunity. Again, there was no statutory or Constitutional construction required, simply the redefinition of a word defined originally by a judge in the common law. This was exactly like the Halpern situation in which the previous definition was judge made. But this situation was completely unlike the Goodridge scenario and, therefore, should have been of no persuasive value to justify the Goodridge outcome.

Because the Goodridge case was about the issuance of marriage licenses pursuant to a statutory scheme (not, as in Halpern, a judge-made rule), because the word marriage in Massachusetts law had a “fixed meaning” (both in the statute as well as the Constitution), because “common law marriage” does not exist in Massachusetts, and because the common law is subordinate to the statutory and Constitutional law, the Supreme Judicial Court’s decision to reformulate the word “marriage” in the common law is a meaningless, powerless act.[112] Indeed, it is the "imperative duty" of the judicial branch of government to say what the Constitution requires, when the question is properly presented. Horton v. Attorney Gen., 269 Mass. 503, 507 (1929). See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).”[113] The SJC, therefore, abdicated its imperative duty “to say what the Constitution requires.” Their reformulation is of no legal significance.

ENDNOTES

[99]    See note 24 supra.

[100]    But see Barnes v. Secretary of Administration, 411 Mass. 822 (“[W]hen directed to the law of other jurisdictions, . . . we prefer, "to rely on, and to be guided by, [the Constitution’s] history and language," when confronted with an issue concerning the meaning or application of [the Constitution]. Attorney Gen. v. Administrative Justice of the Boston Mun. Court Dep't of the Trial Court, 384 Mass. 511, 515 n.3 (1981). See Opinion of the Justices, 384 Mass. at 827.”).

[101]    In M. v. H., (cite) the Supreme Court of Canada had previously decided that same-sex partners would also be included in common law relationships

[102]    Halpern v. Toronto, ___________, (“Second, to freeze the definition of marriage to whatever meaning it had in 1867 is contrary to this country’s jurisprudence of progressive constitutional interpretation. This jurisprudence is rooted in Lord Sankey’s words in , [1930] A.C. 124 at 136 (P.C.): “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Dickson J. reiterated the correctness of this approach to constitutional interpretation in , [1984] 2 S.C.R. 145 at 155: Edwards v. A.G. Canada Hunter v. Southam Inc. The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a or a , for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Bill Charter of Rights [43] In, looseleaf (Scarborough: Carswell, 1997) at 15-43 to 15-44, Professor Peter W. Hogg explained that Canada has changed a great deal since Confederation, and “[t]he doctrine of progressive interpretation is one of the means by which the has been able to adapt to the changes in Canadian society.” Constitutional Law of Canada Constitution Act, 1867.”).

[103]    McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 600 (1993) (Statements by legislators and magistrates made long after the adoption of the Constitution, unlike those made at the time of the Constitution's adoption or shortly thereafter, have little probative value as indications of the contemporary understanding of the Constitution in 1780 . . . what is proper to examine, however, is “the intention of the framers, the language and the structure of the Constitution, the ratification process by the towns and also the words, acts, and deeds of contemporaries of that time, and, especially the views, addresses, and statutes of early Governors (magistrates) and the Legislatures.”); Opinion of the Justices to the Senate, 324 Mass. 746, 748-49 (1949) (“The terms of the statute, in the light of the Constitution, express decisions, universal understanding, and unbroken practice, forbid any other view. The trial by jury of the common law and that contemplated by both the Constitution of this Commonwealth and that of the United States were by a jury of twelve composed exclusively of men. . . . Statutes are to be interpreted, not alone according to their simple, literal or strict verbal meaning, but in connection with their development, their progression through the legislative body, the history of the times, prior legislation, contemporary customs and conditions and the system of positive law of which they are part, and in the light of the Constitution and of the common law, to the end that they be held to cover the subjects presumably within the vision of the Legislature and, on the one hand, be not unduly constricted so as to exclude matters fairly within their scope, and, on the other hand, be not stretched by enlargement of signification to comprehend matters not within the principle and purview on which they were founded when originally framed and their words chosen.”); Levin v. Wall, 290 Mass. 423 (1935) (“The word had, at the time when the statute in question was originally enacted, ‘acquired a peculiar and appropriate meaning in law.’ G. L. (Ter. Ed.) c. 4, § 6, Third. We are therefore bound in the construction of the statute to give the word that meaning.”).

[104]    Commonwealth vs. Pagan, SJC-09332 (September 14, 2005) ("When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.... We derive the words' usual and accepted meaning from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." Commonwealth v. Campbell, 415 Mass. 697, 700 (1993), quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). (emphasis added)”).

[105]    See Egan v. Canada, [1995] 2 S.C.R. 513, 536-37 (“But many of the underlying concerns that justify Parliament’s support and protection of legal marriage extend to heterosexual couples who are not legally married. Many of these couples live together indefinitely, bring forth children and care for them in response to familial instincts rooted in the human psyche. These couples have need for support just as legally married couples do in performing this critical task, which is of benefit to all society. Language has long captured the essence of this relationship by the expression ‘common law marriage.’ . . . Parliament cannot force people to get married, and I see no reason why it should not take the necessary means to promote the basic social interests and policies that inform the institution of legal marriage through other instrumentalities.”).

[106]    See Wilcox v. Trautz, 427 Mass. 326 (Massachusetts [does] not recognize common law marriage); Heistand v. Heistand, 384 Mass. 20 (1981) (“The ceremonial exchange of vows between the plaintiff and David Lowry was a legal nullity in this Commonwealth, as the judge below acknowledged. Massachusetts does not recognize common-law marriage.”).

[107]    CITE case that goes through history . . . CITE

[108]    See Decker v. The Black & Decker Manufacturing Co., 389 Mass. 35 (1983) (“To uphold the third-party plaintiffs' argument would be tantamount to placing "certain rules of the 'common law' ... above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and of the flexibility required for the healthy growth of the law." Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 281 (1978), quoted with approbation in Klein v. Catalano, 386 Mass. 701, 713 (1982).”); Pinnick v. Cleary, 360 Mass. 1 (1971) (“Article 6 provides for the continuation in the Commonwealth of the great body of the common law as amended by statute prior to the colonial immigration. Commonwealth v. Churchill, 2 Met. 118, 123. Crocker v. Justices of the Superior Court, 208 Mass. 162, 171. It explicitly contemplates the "... [alteration] or ... [repeal] by the legislature" of such prior existing law, as indeed it would have to in order to avoid freezing outmoded rules of law into our jurisprudence by placing them beyond the reach of the Legislature. See Holden v. Pioneer Bdcst. Co. 228 Ore. 405, 411--412.”).

[109]    See Armburg v. Boston & Maine Railroad, 276 Mass. 418 (1931) (“The rules of law relating to contributory negligence and assumption of the risk and the effect of negligence by a fellow servant were established by the courts, not by the Constitution, and the Legislature may change them or do away with them altogether as defences (as it has to some extent in the employers' liability act) as in its wisdom in the exercise of powers entrusted to it by the Constitution it deems will be best for the 'good and welfare of this Commonwealth.' Const. Mass. c. 1, § 1, art. 4. See Missouri Pacific Railway v. Mackey, 127 U. S. 205; Minnesota Iron Co. v. Kline, 199 U. S. 593." To the same effect are New York Central Railroad v. White, 243 U. S. 188, 200, and cases cited, and Silver v. Silver, 280 U. S. 117, 122.”); see also Bowe v. Secretary of the Commonwealth , 320 Mass. 230 (1946) (“The power to hold statutes unconstitutional is the logical and inevitable result of the existence of law-making power at different levels of authority. Anglo-American law has long been familiar with the principle that the enactments of an inferior law-making body, such as ordinances, by-laws and administrative regulations, are inoperative when they conflict with the enactments of Parliament, Congress or the General Court, as the case may be. The King v. Company of Barber Surgeons, 1 Ld. Raym. 584. The King v. Miller, 6 T. R. 268. Shannon v. Mayor of Cambridge, 231 Mass. 322, 324. Kane v. School Committee of Woburn, 317 Mass. 436, 438. Hestonville, Mantua & Fairmount Passenger Railroad v. Philadelphia, 89 Penn. St. 210, 218, 219. People v. Gilbert, 68 Misc. (N. Y.) 48. The people of America have added to that long established principle nothing but the concept of a law still higher than any made by the legislative branch of government, namely, the fundamental and supreme law made by the people themselves and embodied in a written Constitution. The people by the Constitution created the legislative branch of government as well as the executive and judicial branches, and conferred and at the same time limited the powers of each of them. Each must act pursuant to the Constitution and within the authority conferred by it. Once the idea of enactments at different levels of authority is grasped, it becomes clear that a provision contained in a statute cannot have any force as law if it conflicts with any provision contained in the higher law of the Constitution.

In deciding constitutional questions courts perform a judicial function not different in kind from that which they habitually perform in cases that involve no constitutional question. In every case before it a court must determine what the law is, and must apply that law to the facts. When one party relies on some provision of a statute, and the other relies on some provision of the higher law of the Constitution, with which, it is alleged, the statute conflicts, the court, in order to determine what the law really is, must first decide whether there is conflict. If there is, its duty is to apply the higher law of the Constitution, and disregard the statute. Schaffer v. Leimberg, 318 Mass. 396, 400, 401. Adkins v. Children's Hospital, 261 U. S. 525, 544. United States v. Butler, 297 U. S. 1, 62, 63. Carter v. Carter Coal Co. 298 U. S. 238, 296, 297. . . . "The limitations on the legislative power of the general court in the constitution shall extend to the legislative power of the people as exercised hereunder." Commonwealth v. Higgins, 277 Mass. 191, 193. The people acting by means of the initiative, like the General Court, can enact measures that violate the fundamental and supreme law of the Constitution and that consequently have no force or effect. But no court can interfere with the process of legislation, either by the General Court or by the people, . . . . Horton v. Attorney General, 269 Mass. 503, 514. Opinion of the Justices, 309 Mass. 571, 580. Prentis v. Atlantic Coast Line Co. 211 U. S. 210, 228, 230. The judiciary is barred from the legislative field just as it is from the executive. Art. 30 of the Declaration of Rights. Rice v. Governor, 207 Mass. 577. Stretch v. Timilty, 309 Mass. 267. . . . "Constitutional freedom means liberty regulated by law. ... Liberty is immunity from arbitrary commands and capricious prohibitions, but not the absence of reasonable rules for the protection of the community." Commonwealth v. Karvonen, 219 Mass. 30, 32. See also Decker v. The Black & Decker Manufacturing Co., 389 Mass. 35 (1983) ("[C]hanges in prior law are necessary in any ordered society, and to argue that art. 11 prohibits alterations of common law rights as such, especially in the face of the specific provision to the contrary in art. 6,(fn10) . . .fn10 Part II, c. 6, art. 6, of the Massachusetts Constitution provides: "All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the Legislature;” To uphold the third-party plaintiffs' argument would be tantamount to placing "certain rules of the 'common law' ... above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and of the flexibility required for the healthy growth of the law." Freezer Storage, Inc. v. Armstrong Cork Co., 47 Pa. 270, 281 (1978), quoted with approbation in Klein v. Catalano, 386 Mass. 701, 713 (1982).”).

[110]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

[111]    Regarding the legal construction of the testator’s intent under a will, see New Engalnd Merchants Nat'l Bank of Boston v. Frost, 357 Mass. 158] (“These controverted issues concern the construction to be given to George's will. We keep in mind the rule of construction stated by Qua, J., in Goodwin v. New England Trust Co. 321 Mass. 502, 504: ‘The court cannot add to, or improve upon, the will of the testator. It must derive his intent from the words he used. But it must look at all of his words and must consider them in the light of known circumstances with the sole purpose of discovering his true meaning and must not be diverted from this object by lack of correct and formal legal structure and methods of expression. This rule of construction is fully set forth in the leading case of Metcalf v. First Parish in Framingham, 128 Mass. 370, at page 374, and in Fitts v. Powell, 307 Mass. 449, at page 454. Sometimes in this way it will clearly appear that the testator intended something that he has not expressly stated.’ In the present case, as in the Goodwin case, the will appears to be the work of a person of intelligence but not a skilled practitioner. We also must be mindful that, ‘A construction of a will resulting in intestacy is not to be adopted unless plainly required, and it is to be presumed that when a will is made the testator intended a disposition of all his property and did not intend to leave intestate estate.’ Anderson v. Harris, 320 Mass. 101, 104--105, and cases cited.”).

[112]    It had no effect on the statutory meaning of the word marriage. Even if the SJC could have reformulated the word “marriage” in the Constitution (which it could not), that constitutional change would not have had any effect on the meaning of the word in the statute. See Commonwealth v. Welosky, 276 Mass. 398 (1931) (in upholding the legitimacy of a trial of a female defendant by an all male jury, the Supreme Judicial Court determined whether the constitutional change (through the Nineteenth Amendment which now allowed women to vote) would change the meaning of the word “persons” in the statute. The court explained that the statute which allowed “persons” who can vote to be on a jury, only permitted males because women were never contemplated at the time of enacting the statute as being a “person” allowed to vote . . . The terms of the statute, in the light of the Constitution, express decisions, universal understanding, and unbroken practice, forbid any other view. The trial by jury of the common law and that contemplated by both the Constitution of this Commonwealth and that of the United States were by a jury of twelve composed exclusively of men. Commonwealth v. Dorsey, 103 Mass. 412, 418; Capital Traction Co. v. Hof, 174 U. S. 1, 13. . . . Statutes are to be interpreted, not alone according to their simple, literal or strict verbal meaning, but in connection with their development, their progression through the legislative body, the history of the times, prior legislation, contemporary customs and conditions and the system of positive law of which they are part, and in the light of the Constitution and of the common law, to the end that they be held to cover the subjects presumably within the vision of the Legislature and, on the one hand, be not unduly constricted so as to exclude matters fairly within their scope, and, on the other hand, be not stretched by enlargement of signification to comprehend matters not within the principle and purview on which they were founded when originally framed and their words chosen. . . . according to sound principles of statutory construction, it cannot rightly be held that the scope of R. L. c. 176, § 1, the statute in force on August 26, 1920, now G. L. c. 234, § 1, was extended by the ratification of the Nineteenth Amendment so as to render women liable to jury duty. To reach that result would be directly contrary to every purpose and intent of the General Court in enacting that law.”).

[113]    Bates v. Dir of the Office of Campaign and Political Finance, 436 Mass. 144, 168 (2002)

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To AmericaPart VI - C.207 Continues to Prohibit Same-Sex "Marriage"

Notwithstanding the Court’s declaration that Chapter 207 is unconstitutional, since the SJC did not strike down the Massachusetts marriage statute and the legislature has not changed or repealed it, the marriage statute is still in effect and continues to prohibit same-sex marriages.

As recently as 2005, the SJC explained exactly what happens when it determines a statute to be “unconstitutional.” See Peterson v. Commissioner of Revenue, SJC-09362 (April 26, 2005). Chief Justice Marshall, Justices Greaney, Ireland, Spina, Cowin, Sosman, and Cordy were all present for the Peterson case which involved a dispute over a tax law. In Peterson, the Court said that when a statute is found to be unconstitutional, the Court will either strike the portion of the statute that is unconstitutional, leaving the rest of the statute in tact . . . or if it cannot identify that the Legislature would have intended that the statute be severed, it will strike down the entire statute as unconstitutional.” See Peterson v. Commissioner of Revenue, SJC-09362 (April 26, 2005) (emphasis added).[114] The Court explained its duty as follows: "When a court is compelled to pass upon the constitutionality of a statute and is obliged to declare part of it unconstitutional, the court, as far as possible, will hold the remainder to be constitutional and valid, if the parts are capable of separation and are not so entwined that the Legislature could not have intended that the part otherwise valid should take effect without the invalid part." Boston Gas Co. v. Department of Pub. Utils., 387 Mass. 531, 540 (1982), quoting Opinion of the Justices, 330 Mass. 713, 726 (1953). See Massachusetts Wholesalers of Malt Beverages, Inc. v. Commonwealth, 414 Mass. 411, 420 (1993). See also Del Duca v. Town Adm'r of Methuen, 368 Mass. 1, 13 (1975). If, however, "the court is unable to know whether the Legislature would have enacted a particular bill without the unconstitutional provision, it will not sever the unconstitutional provision, but will strike the entire statute." Murphy v. Commissioner of the Dep't of Indus. Accs., 418 Mass. 165, 169 (1994), quoting Mayor of Boston v. Treasurer s.Receiver Gen., 384 Mass. 718, 725 (1981) (emphasis added).[115]

What the SJC did in Goodridge is unlike what happened in Roe v. Wade, 410 U.S. 113 (1973). In Roe, reading into the constitution words and rights that do not explicitly exist, the United States Supreme Court struck down the Texas abortion statute as violative of the U.S. Constitution. In contrast, the SJC in Goodridge, did not choose either of those two options (sever a portion of the statute and strike it, or strike the entire statute). In a rather unusual episode (and for the first time in the history of American jurisprudence), the SJC declared the statute unconstitutional, yet left it completely intact and in place. The SJC intentionally chose not to strike the so-called “unconstitutional,” marriage statute saying:

“Here, no one argues that striking down the marriage laws is an appropriate form of relief. Eliminating civil marriage would be wholly inconsistent with the Legislature's deep commitment to fostering stable families and would dismantle a vital organizing principle of our society.”[116]

But the truth is that striking the statute in its entirety would have produced negative consequences that the SJC did not want to create. Striking down the marriage laws would have ended “marriage” in Massachusetts completely and the blame for such an outrageous happening would first have fallen on the SJC and second on same-sex couples. See Halpern v. Toronto, (City), 172 O.A.C. 276 (2003) (“[A] declaration of invalidity, by itself, would not achieve the goals of s. 15(1). . . . [A] declaration of invalidity alone leaves same-sex couples open to blame for the blanket denial of the benefits of the legal institution of marriage, a result that does nothing to advance the goal of s. 15(1) of promoting concern, respect and consideration for all persons.”). Such negativity would have undermined the political power of their decision.

Instead of rewriting the statute (i.e., legislating from the bench),[117] and indeed, in respecting and acknowledging the legislative role of the body responsible for making any needed changes to the marriage statute, the SJC left the remedy in the hands of the Legislature.[118] The Court said:

We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. See, e.g., Michaud v. Sheriff of Essex County, 390 Mass. 523, 535-536 (1983).” While the Court may suggest appropriate steps that the legislature can take, the Court has no authority to tell the legislature how to act. [119]

Since November 17, 2003, when the Goodridge Court urged the Legislature to change the marriage statute, the state Legislature, acting within its constitutional authority, has not done so.[120] To the contrary, the legislature approved the first part of a constitutional amendment in April of 2004???? (which they later quashed in 2005). Currently there are two bills pending before the house judiciary committee that address the exact opposite positions. One HB_____ would codify the traditional meaning of marriage (in direct contradiction to the SJC decision. The other HB ______would define marriage to include same-sex couples. There also is a pending citizen’s petition initiative to amend the Constitution (to define marriage as between one man and one woman) awaiting action in a Constitutional Convention.[121]

In summary, the Legislature has never changed the wording of the statute to permit same-sex marriage, nor has it repealed the law, thus, the law of Massachusetts has never changed.[122] The Massachusetts Marriage Statute (Ch. 207) is still in effect because the SJC did not strike it down.[123] “Aside from an entry of the Court's judgment declaring that the lack of provision in the law for same-sex marriage is unconstitutional, nothing more . . . [resulted].”[124] All that the Court did was to “declare” the statute unconstitutional, which is all they had been asked to do.[125] Therefore, the plain meaning of the language of c. 207 has always and continues to prohibit same-sex marriage. As the SJC ruled in Goodridge:

The only reasonable explanation is that the Legislature did not intend that same-sex couples be licensed to marry. We conclude . . . that G.L. c. 207 may not be construed to permit same-sex couples to marry.

Logic demands, therefore, the following conclusion: a statute that prohibits same-sex marriage that the legislature has never amended nor changed and that has not been stricken by the Court, remains the law of Massachusetts,[126] notwithstanding it’s unpleasant circumstance of having been “declared” unconstitutional by the SJC. That declaration, however, wants for the substance that the swindlers lacked in their claim to the Emperor, in the well known Hans Christian Andersen children’s story, that they had woven him a new suit.[127] There is currently no legal authority that permits town clerks to violate Chapter 207 and issue same-sex marriage certificates, nor any authority allowing justices of the peace to solemnize those relationships. Despite the boundless naiveté of the traditional marriage movement in Massachusetts and conservatives around the country, and despite the strange, public chagrin of the “reluctant, law enforcing” governor in whose office “homosexual marriages” were conjured from thin air, they remain what they have always been under Massachusetts law: legal nullities. The nuptial equivalent of Confederate currency.

ENDNOTES
[114]    If the statute is not unconstitutional, it must be upheld. Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“Where, as here, the statute lays out clear, objective criteria for its enforcement that are not unconstitutional, we must uphold the statute on its own terms.”).

[115]    As to all statutes in the Commonwealth, the Legislature has announced its own preference in favor of severability. "The provisions of any statute shall be deemed severable, and if any part of any statute shall be adjudged unconstitutional or invalid, such judgment shall not affect other valid parts thereof." G.L. c. 4, s.6, Eleventh. . . . [E]ven without an express severability clause in the enactment itself, there is a "well-established judicial preference in favor of severability," as well as the Legislature's codification of that same general preference, which [the Court] must respect. Murphy v. Commissioner of the Dep't of Indus. Accs., supra at 169 n. 3.

The ultimate question on severability, however, is the intent of the Legislature. . . . We must seek to ascertain whether the Legislature would "have enacted [the] particular bill without the unconstitutional provision," Mayor of Boston v. Treasurer s.Receiver Gen., supra at 725, or whether, in the absence of the unconstitutional provision, the Legislature would have preferred that the bill have "no effect at all," Massachusetts Wholesalers of Malt Beverages, Inc. v. Commonwealth, supra at 420. See Route One Liquors, Inc. v. Secretary of Admin. s.Fin., 439 Mass. 111, 119 (2003); Murphy v. Commissioner of the Dep't of Indus. Accs., supra at 170-171. . . . The Legislature, but not [the] court, may decide that the current fiscal climate, the administrative difficulties [and other policy and practical decisions, demand severance or not.] CITE??? See also Moore v. Election Comm'rs of Cambridge, 309 Mass. 303 (1941) (“This court is concerned only with the power of the Legislature to enact laws, the question of their expediency or the policy behind them being matters purely within the legislative discretion. . . . It was said by Mr. Justice Hughes in Chicago, Burlington & Quincy Railroad v. McGuire, 219 U. S. 549, at page 569: 'The scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative considerations in dealing with the matter of policy. Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.'").

[116]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)

[117]    Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Cordy J. dissenting) (“Although it may be desirable for many reasons to extend to same-sex couples the benefits and burdens of civil marriage (and the plaintiffs have made a powerfully reasoned case for that extension), that decision must be made by the Legislature, not the court.”).

[118]    See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)

[119]    Commonwealth v. Gonsalves, 432 Mass. 613 (2000) (“Of course, any attempt by this court to compel the Legislature to make a particular appropriation for the payment of rule 15 (d) attorney's fees and costs would violate art. 30. See Bromfield v. Treasurer & Receiver Gen., 390 Mass. 665, 670 n.9 (1983).”); Lowell v. Kowalski, 380 Mass. 663 (1980) (“In light of the views expressed in this opinion, the Legislature may conclude that a revision of the statutes concerning the right of an illegitimate child to inherit from his or her natural father would be appropriate.”); Hancock v. Commissioner of Education, 443 Mass. 428 (2005) (“The courts should be most hesitant in instructing the General Court when and how to perform its constitutional duties. Mandamus is not available against the Legislature.... Th[e] principles [of separation of powers] call for the judiciary to refrain from intruding into the power and function of another branch of government." quoting LIMITS v. President of the Senate, 414 Mass. 31, 35 (1992)”); see also Pielech v. Massasoit Greyhound, Inc. (SJC-09080) (2004); Christopher McKnight, 406 Mass. 787, 792 (1990) (“[A] court has the right to order [another branch of government] to do what it has a legal obligation to do. Id. Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624, 629--630 (1985). Where the means of fulfilling that obligation is within the discretion of [the other branch], the courts normally have no right to tell [the other branch] how to fulfill its obligation. Id. at 630. See Bradley v. Commissioner of Mental Health, 386 Mass. 363, 365 (1982). Only when, at the time a judicial order is entered, there is but one way in which that obligation may properly be fulfilled, is a judge warranted in telling [the other branch] precisely how it must fulfill its legal obligation. See Guardianship of Anthony, supra at 727; Attorney Gen. v. Sheriff of Suffolk County, supra at 630.”); Commonwealth vs. Carrara, 58 Mass. App. Ct. 86, (2003) (“[T]he judge lacked the authority to enter the order in question . . . the judge's mandate that the defendant be escorted at all times when on the hospital's grounds "constitutes an impermissible 'poaching by the judicial branch on executive . . . territor[y].'" Guardianship of Anthony, 402 Mass. 723, 727 (1988), quoting from Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624, 631 (1985).”) (“In Pielech I, this court declared G. L. c. 151B, § 4 (1A), unconstitutional. Subsequently, the Legislature amended the statute, including a provision to make the amendment retroactive.”).

[120]    See Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640 (1978)(“Part II, c. 6, art. 6, of the Constitution of the Commonwealth which, as adopted in 1780 and as remains un-amended today, provided: "All the laws which have heretofore been adopted, used and approved, in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution.’”).

[121]    Other than as a process or method for getting this question placed squarely before the people of the Commonwealth, amending the Constitution to state what it already states, is blind foolishness. It is a testament either to how well the SJC executed its trickery or to how highly uneducated the populous is about the legal process in which it engages. Cf. HANCOCK & others (fn1) vs. COMMISSIONER OF EDUCATION & others SJC-09267, February 15, 2005 (“For its effective functioning, democracy requires an educated citizenry.”). If the Constitution already contains the word marriage in it, if that word is confined to its traditional meaning, and if words of the Constitution are highly important and are to be complied with, then the Constitution already has marriage properly defined within it. Thus, it needs no further iteration; a constitutional amendment would be redundant. Furthermore, what is to stop the SJC from claiming that the Constitutional amendment violates the constitution or what could stop the SJC from simply “reformulating” the word man to include woman and the word woman to include man?

[122]    Part II, c. 6, art. 6, of the Massachusetts Constitution provides: "All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the Legislature; such parts only excepted as are repugnant to the rights and liberties contained in this Constitution."

[123]    Druzik v. Bd. of Health of Haverhill, 324 Mass. 129, 138-39 (1949) (“All rational presumptions are made in favor of the validity of every legislative enactment. Enforcement is to be refused only when it is in manifest excess of legislative power. Perkins v. Westwood, 226 Mass. 268, 271. Lowell Co-operative Bank v. Co-operative Central Bank, 287 Mass. 338, 343. Howes Brothers Co. v. Unemployment Compensation Commission, 296 Mass. 275, 284. Moore v. Election Commissioners of Cambridge, 309 Mass. 303, 311. It is only when a legislative finding cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it that a court is empowered to strike it down. Slome v. Chief of Police of Fitchburg, 304 Mass. 187, 189. If the question is fairly debatable, courts cannot substitute their judgment for that of the Legislature. Simon v. Needham, 311 Mass. 560, 564. Foster v. Mayor of Beverly, 315 Mass. 567, 572. 122 Main Street Corp. v. Brockton, 323 Mass. 646, 649.”); see also Slome v. Chief of Police of Fitchburg, 304 Mass. 187 (1939) (“It is only when a legislative finding cannot be supported upon any rational basis of fact that can be reasonably conceived to sustain it that a court is empowered to strike down the enactment. We cannot say that the instant statute is entirely lacking in such support. Perkins v. Westwood, 226 Mass. 268, 271. Lowell Co-operative Bank v. Co-operative Central Bank, 287 Mass. 338, 343. Howes Brothers Co. v. Unemployment Compensation Commission, 296 Mass. 275, 284. Standard Oil Co. v. Marysville, 279 U. S. 582, 584. Cincinnati Soap Co. v. United States, 301 U. S. 308.”).

[124]    http://www.boston.com/news/special/gay_marriage/blogs/chrisfunnell1.html (Scroll 2/3 of the way down the page to the May 14 entry)

[125]    See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)

[126]    See Part II, c. 6, art. 6, of the Massachusetts Constitution ("All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the Legislature.”).

[127]    CITE EMPEROR’S NEW CLOTHES

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To AmericaPart VII - Mass. Same-Sex "Marriages" Are Legally Void

Massachusetts same-sex “marriages” are, therefore, legally void and Governor Romney was and remains under a Constitutional and sworn duty to acknowledge this reality.

“Massachusetts since 1780 has been governed by a written Constitution, wherein the various organs of government are enumerated and their powers defined. The people themselves and all branches of their government, legislative, executive, and judicial alike, are bound by it and owe to it implicit obedience. . . . Since the people have themselves adopted the Constitution with its amendments for their government, they are bound by the provisions and conditions which they themselves have placed in it[. For instance,] when they seek to enact laws by direct popular vote they must do so in strict compliance with those provisions and conditions.” Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951). Likewise, when the SJC and the Governor act, they must (not unlike the people) “do so in strict compliance” with the words of the Constitution.[128]

“[I]t is always to be presumed that a coordinate branch of the government has acted within the limits of its constitutional authority, until the contrary shall clearly and satisfactorily appear.” [129] When any one of the branches of government acts outside its Constitutional authority, those unlawful actions are null and void.[130] For example, the legislature cannot supplant the judicial function.[131] Similarly, the executive cannot perform a legislative function.[132] The same applies to unconstitutional acts of the Judiciary[133] as well. Exceeding the scope of legal authority granted to or overreaching the jurisdiction bestowed upon a court, is a nullity.[134] It is quite clear that the act of granting a license must be annulled when the law does not permit its issuance.[135]

Simply because the SJC ignored the explicit words of the Constitution in no way required Governor Romney to do the same.[136] Article 30 creates a separation of powers among the branches of government[137] and our democracy depends on this separation.[138] No branch of government is required to seek from another branch permission to assert its Constitutional duties.[139] To the contrary, when one branch of government attempts to perform an unconstitutional function that it has no right to perform, as the SJC has done in Goodridge, it is the duty of the other branches to check that power and prevent its misuse and usurpation.[140] Even the doctrine of stare decisis does not require the Court to be bound by its own prior illogical decisions.[141]

For separation of powers to mean anything then, it is fully within the discretion and authority of the Governor to not honor (i.e., ignore) the void and unconstitutional actions of the other branches of government – in the very same way that the SJC ignores the legislature’s unconstitutional actions as well as the illegal actions of the executive branch.[142] The SJC cannot, through the use of an unauthorized/unconstitutional declaration, prevent the Governor from performing his responsibilities to the people to execute the laws of the Commonwealth.[143]

Each branch is separate, and each is equal. Separation of powers is not some meaningless, abstract, wishful thought free of any practical application.[144] Rather when observed, it ensures that we remain a government “of the people, by the people, for the people.”[145] Each branch may and sometimes must act independently.[146] Otherwise the doctrine of separation of powers is a meaningless concept.[147]

This is self-evident, but the Court’s majority was confident that neither the Legislature, nor the press, nor the civic culture of the Commonwealth would have the will or desire to call their bluff. Nor, as it turned out, would the governor, who was bound by his oath to the Constitution to reject the Goodridge ruling as meaningless, at the very least until the Legislature rescinded the existing marriage law in order to please the court. But only a very small minority of legislators were willing to even consider voting to establish homosexual marriage. Thus when Governor Romney ordered state officials to begin issuing marriage licenses to homosexual couples, he was going far beyond what the Court, the Legislature, and the people expected him to do. More than that, he was violating the Constitution he had sworn to defend. Not even the Marshall court majority implied in even the faintest way that it fell upon the governor as chief executive to ignore the still binding law of the Commonwealth and issue orders that violated that law and violated the Constitution’s Separation of Powers. To the constitutionally ignorant (which now includes Justice Roderick Ireland of the Massachusetts Supreme Judicial Court),[148] the governor’s actions had and have today the appearance of being forced by the Goodridge ruling. Governor Romney’s public statements have repeatedly cloaked his unconstitutional actions as a mere carrying out of the law. In fact, it is not possible to even argue such, since Massachusetts law to this day defines marriage just as it has for well over two centuries.

Governor Romney acquiesced in the SJC decision and actively authorized same-sex “marriage.” Resembling what the Emperor saw in the mirror, Romney’s reliance on the SJC’s decision to justify his subsequent actions, therefore, was based on nothing.

Although he does not like to take credit for it, on April 26, 2003, Governor Romney, without being authorized by the legislature ordered the terms on the official marriage certificate changed[149] and in May he ordered the town clerks, even ones with religious conscience concerns, to solemnize the marriages.[150] In so doing, Governor Romney failed “to act in strict compliance with the words of the Constitution” and failed to execute the laws of the Commonwealth. He also placed the public officials in criminal jeopardy, but for the fact that he will not enforce the marriage statute, which prohibits the certification of and solemnization of marriages that violate the marriage statute.

The truth is, Governor Romney knew the SJC had violated the Constitution.[151] In a Wall Street Journal editorial he said:

With the Dred Scott case, decided four years before he took office, President Lincoln faced a judicial decision that he believed was terribly wrong and badly misinterpreted the U.S. Constitution. Here is what Lincoln said: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal." By its decision, the Supreme Judicial Court of Massachusetts circumvented the Legislature and the executive, and assumed to itself the power of legislating. That's wrong.[152]

Romney, therefore, also knew he had no duty, nor any legal power, to change the documents or issue marriage certificates. Indeed, his duty was to uphold the laws of the Commonwealth and, therefore, to do the exact opposite of what he did.[153]

So then, what is the legal status of the licenses that have allegedly been certified and the “marriages” that have purportedly been solemnized without legal authority? The answer lies in the venerable legal principle that one can only receive the title (power, authority, ownership) that one has been given; that is, a person can stand in no greater position, nor obtain greater ownership than that which was transferred.[154] Nemo dat qui non habet (“You cannot give what you do not have”). Thus, no matter how many licenses the town clerks churn out, neither the statute, nor the Constitution permit same-sex “marriage.” Governor Romney’s lack of power and his failure to execute the laws of Massachusetts means that “no valid [marriage certificate] has been issued.[155] . . . Only by preserving this fundamental principle can constitutional government be preserved and orderly progress assured.”[156] “It would be astonishing and intolerable if the [words] so carefully inserted in the [Constitution] could be disregarded by [the Supreme Judicial Court and the Governor] without consequence and so in effect turned into mere admonitions and recommendations. The Constitution is not ordinarily treated in that manner.” Sears v. Treasurer and Reciever General, 327 Mass. 310, 321-22 (1951).

The power the Governor lacked (both because the SJC had no authority to authorize any “marriage” that contradicts the word embedded in the Constitution and because the statute continues to prohibit same-sex “marriage” since it has not been changed, nor repealed), makes the “marriage” certificates, that have been and are being handed out by town clerks to same-sex couples, void. They were void from their inception because there was and there continues to be no legal authority to issue them.[157] Couples holding those same-sex “marriage” licenses hold nothing because issuing “marriage” certificates (pursuant to Chapter 207) to same-sex couples is a legal impossibility.[158] There was no authority to issue the certificates nor to solemnize the relationships and, therefore, they are void.[159]

ENDNOTE
[128]    Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951); See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 247--248.

[129]    Moore v. Election Comm'rs of Cambridge, 309 Mass. 303 (1941), quoting Chief Justice Shaw, in Commonwealth v. Blackington, 24 Pick. 352, 355—356.).

[130]    See Pennoyer v. Neff, 95 U.S. 714 (1877) ('Any exertion of authority of this sort beyond this limit,' says Story, 'is a mere nullity, and incapable of binding.”); Luscomb v. Bowker, 334 Mass. 468 (1956) ("The house of representatives is not the final judge of its own powers and privileges in cases in which the rights and liberties of the subject are concerned; but the legality of its action may be examined and determined by this court. . . . living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity with the Constitution; and if they have not been, to treat their acts as null and void."). See also Vasquez, petitioner, 428 Mass. 842 (1999) (citing World-Wide Volkswagen Corp., supra at 291 ("A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere"). . . . The petitioner's claim is more properly viewed as an argument that Oregon has no legislative jurisdiction to criminalize acts that occur outside the boundaries of the State.”); Commonwealth v. Vascovitch Jr., 40 Mass. App. Ct. 62 (“Article 30 creates a separation of powers among the branches of government giving the prosecutor broad discretion in determining whether to prosecute a case. Shepard v. Attorney Gen., 409 Mass. 398, 401 (1991). . . . the record reflects that the Commonwealth objected and that there was no independent legal basis for the dismissal, and, therefore, the dismissal cannot stand. The judge's dismissal also unconstitutionally usurped the Legislature's power to prescribe punishment for criminal conduct.”); See e.g., Bottomly v. Kabachnick, 13 Mass. App. Ct. 480 (1982) (“The manner in which the notice of the proposed sale shall be given is one of the important terms of the power and a strict compliance with it is essential to the valid exercise of the power." McGreevey v. Charlestown Five Cents Sav. Bank, 294 Mass. 480, 483--484 (1936). Tamburello v. Monahan, 321 Mass. 445, 447 (1947). According to this line of cases, the first foreclosure sale now in issue must be viewed as a nullity; it is as if no such sale had been made. See Montague v. Dawes, 96 Mass. 369, 374 (1867); Moore v. Dick, 187 Mass. at 212. Cf. Bernhardt v. Atlantic Fin. Corp., 311 Mass. 183, 191 (1942). Because the first foreclosure sale was void as matter of law, the defendant cannot be found liable to the plaintiffs for breach of contract. See Levenson v. Cambridge Sav. Bank, 258 Mass. 468, 469 (1927).”); Casieri's Case, 286 Mass. 50 (1934) (“The final decree ... was a judgment of a court. The Legislature cannot exercise judicial powers. That is prohibited by the clear words of art. 30 of the Declaration of Rights of our Constitution. Any legislative attempt to that end would be a nullity.”).

[131]    Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 321 (1951) ("The question whether or not the requirements of the Constitution have been observed and a valid law has been enacted is a justiciable question to be determined in the last analysis by the judicial department of the government . . .it would be clear that the Legislature attempted to define the bounds of the constitutional right to trial by jury. Article 30 prohibits the Legislature from performing this judicial function. It is the exclusive function of the judiciary to determine this. Under art. 30, the Legislature may not supplant our decision.”); Commonwealth v. Sheehy, 412 Mass. 235 (1992) (“It is the judiciary's role to be the final arbiter of the essence of the rights guaranteed by our State Constitution. See, e.g., Opinions of the Justices, 387 Mass. 1201, 1206 (1982) (provision in school prayer bill stating that bill does not establish religion invades judicial province)”).

[132]    See Mass. Bay Transportation Authority Advisory Bd. v. Mass. Bay Transportation Authority, 382 Mass. 569 (1981) (“The Governor could not by executive order, in the absence of legislative authority, suspend the operation of G. L. c. 161A, § 5 (i).”).

[133]    See Mass. Bay Transportation Authority Advisory Bd. v. Mass. Bay Transportation Authority, 382 Mass. 569 (1981) (“The Governor could not by executive order, in the absence of legislative authority, suspend the operation of G. L. c. 161A, § 5 (i). . . . Nor could we.”) (emphasis added). See also Comm'r of Public Health v. The Bessie M. Burke Memorial Hospital, 366 Mass. 734 (1975) (“When one takes into account the historical basis of art. 20 in the attempts of the Crown to suspend the laws or operation of the laws without consent of Parliament,(fn13) one must agree with the occasional remarks in the decided cases that the core meaning of art. 20 is that only the Legislature, not the Executive or Judicial branches, may suspend an existing law.); Hancock v. Commissioner of Education, 443 Mass. 428 (2005).

[134]    See e.g., Guardianship of Anthony, 402 Mass. 723, 727 (1988) (“[I]n appropriate circumstances, a court may direct a public official to carry out a statutory duty, and, when there is only one way in which that can be accomplished, to order the official to proceed in that one way. But . . . , the circumstances of this case are not appropriate for such an order. No statute requires the department or its agents to conduct medical tests for AIDS. Moreover, there are no findings, and there is nothing in the record which would support findings, that permit the conclusion that testing for AIDS is an appropriate, let alone the only, means by which the department may fulfill any of its statutory duties. Thus, the judge's order constitutes an impermissible "poaching by the judicial branch on executive and legislative territories. . . . However, the order subject to this review was not the product of the judge's focus "with an eye single to the welfare of the ward." Rather, the genesis of the order appears to be the judge's perception that the order was appropriate to meet a threat to the health of the Templeton Colony. Thus, the order was not within the court's jurisdiction based on guardianship. . . . the judge's order constitutes an impermissible "poaching by the judicial branch on executive and legislative territories," Attorney Gen. v. Sheriff of Suffolk County, supra at 631. The order is vacated, and the case is remanded to the Probate and Family Court for such further guardianship proceedings as may be appropriate.”); see also Commonwealth v. Cheney, 440 Mass. 568 (2003) (“Thus, when a judge, "[w]ithout any legal basis . . . preempt[s] the Commonwealth's presentation of its case [t]hat action effectively usurp[s] the decision-making authority constitutionally allocated to the executive branch." . . . Burlington v. District Attorney for the N. Dist., 381 Mass. 717, 721 (1980) ("virtual exclusion of judicial intervention to check or correct the district attorney in the [decision to nol pros] . . . follows from Part I, art. 30 of the Massachusetts Constitution declaring a separation of powers"); Commonwealth v. Hart, 149 Mass. 7, 8 (1889) ("Only an attorney authorized by the Commonwealth to represent it has authority to declare that he will not further prosecute a case in behalf of the Commonwealth. A court is not a prosecuting officer, and does not act as the attorney for the Commonwealth. Its office is judicial, -- to hear and determine between the Commonwealth and the defendant").”); Matter of McKnight, 406 Mass. 787, 792 (1990) ("The guardianship, however, did not invest the Probate Court with the authority to order the department to do anything that the department was not willing to do or required to do as a matter of law. A court, of course, may not properly exercise the functions of the executive branch of State government.”); Commonwealth v. Gordon, 410 Mass. 498, 500 (1991) (a court has no power to dismiss an indictment or complaint).

[135]    See Werner v. Bd. of Appeals of Harwich, 2 Mass. App. Ct. 647, 650 (1974) (“The decision of the board granting the special permit must be annulled because the Harwich zoning by-law does not allow the issuance of a special permit for the construction of nonconforming buildings additional to, and separate from, existing nonconforming buildings.”); see also Goodwin v. Bd. of Selectmen of Hopkinton, 358 Mass. 164, 169 (1970) (“Formerly the zoning enabling statute was the only source of municipal authority to regulate the removal of material from the land. Such regulation could not be accomplished by an ordinance or by-law other than a zoning ordinance or by-law.”); Planning Bd. of Easton v. Koenig, 12 Mass. App. Ct. 1009, 1010 (1981) (“We conclude only that the zoning board of appeals was without jurisdiction to grant a building permit to the Koenigs and that its decision to do so is void.”); Quinlan v. Mealey, 270 Mass. 284, 286 (1930) (“When the contract was made the conservator had no legal authority to use or dispose of the property of his ward in any manner other than he was authorized to do by the Probate Court. Performance of the agreement at the death of the husband, while then possible in fact, was impossible within limits legally possible when the agreement was made and ever after. The legal impossibility was apparent on the face of the attempted contract. The contract was void, and the plaintiff was not entitled to damages for the defendant's refusal to perform it.”); Mealey v. Fegan, 274 Mass. 599] (“This court held that such a contract was void as "the conservator had no legal authority to use or dispose of the property of his ward in any manner other than he was authorized to do by the Probate Court," and sustained a directed verdict for the defendant. Quinlan v. Mealey, 270 Mass. 284, 286.”).

[136]    See O'Coin's Inc. v. Treasurer of the County of Worcester, 362 Mass. 507 (1972) (“It was certainly never intended that any one department, through the exercise of its acknowledged powers, should be able to prevent another department from fulfilling its responsibilities to the people under the Constitution.”); Alliance, AFSCME/SEIU, AFL-CIO v. Secretary of Administration, 413 Mass. 377 (1992) (the Court cannot compel the Governor to act).

[137]    Part I, c.1, Article XXX (“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”); See Commonwealth v. Pellegrini, 414 Mass. 402 (1993) (Under our system of government, Courts are to give deference to legislative judgments. Shell Oil Co. v. Revere, 383 Mass. 682 (1981). This “reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the ‘undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature.’ Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977).” Shell Oil Co. v. Revere, 383 Mass. 682 (1981). Thus, it is not the court's function to launch an inquiry to resolve a debate which has already been settled in the legislative forum. "[I]t [is] the judge's duty ... to give effect to the will of the people as expressed in the statute by their representative body. It is in this way ... that the doctrine of separation of powers is given meaning." Commonwealth v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring). Shell Oil Co. v. Revere, 383 Mass. 682 (1981).

[138]    McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 607 (1993) (John Adams “offered that "there is no good government but what is republican." Thoughts on Government, in 4 Works of John Adams 194 (C.F. Adams ed. 1851). He described the requirements of a Constitution for a republican government. He prescribed a tripartite system of government in which the executive, legislative, and judicial branches are independent of one another . . .”); See also Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Cordy, J. dissenting) (“The "time tested wisdom of the separation of powers" requires courts to avoid "judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539, 540 (1996), cert. denied, 520 U.S. 1131 (1997), quoting Commonwealth v. A Juvenile, 368 Mass. 580, 595 (1975).”); 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.”); Commonwealth v. Sheppard, 387 Mass. 488 (1982) (Liacos, J., concurring, with whom Abrams, J., joins) (“One need only turn to history to recognize the dangers to society if the judiciary cannot, or will not, diligently and carefully protect the rights of individuals.”).

[139]    Although the Massachusetts legislature sought permission from the SJC to assert its separate constitutional authority. See CITE

[140]    Christopher McKnight, 406 Mass. 787, 792 (1990) (“A court, of course, may not properly exercise the functions of the executive branch of State government. See Guardianship of Anthony, 402 Mass. 723, 727 (1988).”).

[141]    See Stonehill College v. Massachusetts Commission Against Discrimination, 441 Mass. 549 (2004) (“Adherence to the principle of stare decisis provides continuity and predictability in the law, but the principle is not absolute. No court is infallible, and this court is not barred from departing from previous pronouncements if the benefits of so doing outweigh the values underlying stare decisis. See Franklin v. Albert, 381 Mass. 611, 617 (1980); Lewis v. Lewis, 370 Mass. 619, 628-629 (1976).”); See also City Of Boerne v. Flores, Archbishop Of San Antonio, ___ U.S. ___ (1997) (O'Connor, J., dissenting) (“`[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience[; i.e., when the precedent] has not engendered the kind of reliance on its continued application that would militate against overruling it.”); Cf. Stonehill College v. Massachusetts Commission Against Discrimination, 441 Mass. 549 (2004) (Sosman, J., concurring) (In order to overrule a prior case, it is not enough that some or all of the Justices of this court have some intellectual or academic disagreement with the earlier analysis of the issue. There must be something more, above and beyond such a disagreement, that would justify some exception to the doctrine of stare decisis. “While perhaps it is more important as to far-reaching juridical principles that the court should be right, in the light of higher civilization, later and more careful examination of authorities, wider and more thorough discussion and more mature reflection upon the policy of the law, than merely in harmony with previous decisions . . . it nevertheless is vital that there be stability in the courts in adhering to decisions made after ample consideration. Parties should not be encouraged to seek re-examination of determined principles and speculate on a fluctuation of the law with every change in the expounders of it." (Citation omitted.) Mabardy v. McHugh, 202 Mass. 148, 152 (1909).”).

[142]    Vasquez, petitioner, 428 Mass. 842 (1999) (“Perhaps if Oregon's requisition were egregiously devoid of even a colorable claim of legislative jurisdiction, the Governor should not have honored it and, if he had, we should not allow it to stand as a basis for depriving a person of his liberty. But that is far from being the case here.”). It is not that each and every time that the SJC arguably acts beyond its authority, the Governor is required to ignore their misguided decision. See e.g., Levy v. The Acting Governor, 436 Mass. 736 (2002) (CORDY, J. dissenting, with whom Marshall, C.J., and Sosman, J., join) (where arguably the SJC ignored case precedent regarding removal 'for cause' and reinstated two members of the Massachusetts Turnpike Authority.”); Parklane Hosiery Co.. v. Shore, 439 U.S. 322 (1979) (Rehnquist, J. dissenting) (“[T]he principle of separation of powers was not incorporated by the Framers into the Constitution in order to promote efficiency or dispatch in the business of government.”). There certainly are times when the governor’s disobedience would do more harm to our system of government than simple compliance. When, however, there exists, as there does here, explicit words of the Constitution that contradict the SJC’s declaration, a statute prohibiting what the SJC declared, and where the authority of the governor to act emanates solely through that statute, then the governor has only two choices. Act without statutory authority in violation of the current laws of Massachusetts (and therefore in violation of the governor’s duty to enforce the law), as he has done, – that is in acquiesce in the SJC’s unconstitutional declaration –or execute the laws of the Commonwealth by enforcing the statute and ignoring the SJC’s unauthorized declaration.”)’ Pennoyer v. Neff, 95 U.S. 714 (1877) (“[A] judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullity, . . . is not entitled to any respect in the State where rendered.”); See also A BRIEF HISTORY OF EXECUTIVE PRIVILEGE, FROM GEORGE WASHINGTON THROUGH DICK CHENEY, By MICHAEL C. DORF, Wednesday, Feb. 06, 2002, (“For example, in 1796, President Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.”).

[143]    Barnstable v. Commonwealth, 410 Mass. 326 (1991) (“We stated that "implicit in the constitutional grant of judicial power is 'authority necessary to the exercise of ... [that] power'" (emphasis in O'Coin's). Id. at 510, quoting Opinion of the Justices, 279 Mass. 607, 609 (1932). We also observed that the use of inherent judicial power to obtain necessary facilities is not contrary to the doctrine of separation of powers because "[i]t was never intended that any one department, through the exercise of its acknowledged powers, should be able to prevent another department from fulfilling its responsibilities to the people under the Constitution." Id. at 511.”); Commonwealth v. Amirault, 415 Mass. 112 (1993) (“By allowing a motion to revise or revoke sentences when the parole board does not act in accordance with a judge's expectations, the judge is interfering with the executive function. The judge cannot nullify the discretionary actions of the [executive branch].”); Clark, petitioner, 34 Mass. App. Ct. 191 (1993) (“’Parole is a ‘wholly executive function.’’ Stewart v. Commonwealth, 413 Mass. 664, 669 (1992), quoting from Baxter v. Commonwealth, 359 Mass. 175, 179 (1971), and, therefore, such action would "effectively usurp the decision-making authority constitutionally allocated to the executive branch." . . . The agreement is illegal and, therefore, void.”); Shepard v. Atty. General, 409 Mass. 398 (1991) (“Judicial review of decisions which are within the executive discretion of the Attorney General "would constitute an intolerable interference by the judiciary in the executive department of the government and would be in violation of art. 30 of the Declaration of Rights." Ames v. Attorney Gen., supra at 253. . . . discretionary executive decisions made by the Attorney General are beyond judicial review.”); compare United States v. Nixon, 418 U.S. 683 (1974) (“Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government.”).

[144]    Buckley v. Valeo, 424 U.S. 1 (1976) (“[T]he principle of separation of powers was not simply an abstract generalization in the minds of the Framers . . . “).

[145]    See http://www.law.ou.edu/ushistory/gettysburg.shtml, The Gettysburg Address (“It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”).

[146]    AIRPORTS AUTH. v. CITIZENS FOR NOISE ABATEMENT, 501 U.S. 252 (1991) (“[A]s James Madison recognized, . . . ‘It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.’”).

[147]    Commonwealth v. Gonsalves, 432 Mass. 613, 619 (2000) (“An act of one branch of government does not violate art. 30 unless the act "unduly restrict[s]" a core function of a coordinate branch. See id. "The essence of what cannot be tolerated is the creation of interference by one department with the power of another department." New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 410 (1979).”); O'Coin's Inc. v. Treasurer of the County of Worcester, 362 Mass. 507 (1972)

[148]    See Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (With a clearly ignorant understanding of the separation of powers, Judge Ireland explains that even though the SJC did not construe Chapter 207 to permit same-sex marriage, the SJC reformulated the meaning of that word, thus, changing the marriage statute. He says: “Rather than strike down the marriage laws, however, we redefined the common law and "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . . We did not reach the question whether the Massachusetts State Constitution contains a right to marry, nor did we find that G. L. c. 207 could be "construed to permit same-sex couples to marry. . . . Moreover, because Goodridge's discussion of marriage was based on ‘the undefined word 'marriage' as used in G. L. c. 207,’ id. at 319, it logically follows that Goodridge's redefinition of civil marriage applies to the entire marriage statute (G. L. c. 207).”).

[149]    http://www.buddybuddy.com/mar-mass.html; In Defense of the Family, by Maggie Gallagher, June 25, 2004, http://www.nationalreview.com/comment/gallagher200406250924.asp (“Romney points out that small things have already begun to change, foretelling the bigger, sadder changes to come. First, the marriage licenses change so they no longer read husband and wife but ‘Party A’ and ‘Party B.’”); see also Birth certificate policy draws fire, Change affects same-sex couples, by Michael Levenson, Globe Correspondent, July 22, 2005 http://www.sbministries.org/blog/index.php?m=2005 (“Governor Mitt Romney's administration is advising hospitals to cross out the word father on birth certificates for the children of same-sex couples and instead write the phrase ''second parent," angering gay and lesbian advocates and city and town clerks who warn that the altered documents could be legally questionable. Eric Fehrnstrom, Romney's spokesman, said yesterday that the Department of Public Health, which the governor oversees, has been has been advising hospitals to alter the documents since last year, when the first children were born to same-sex married couples were born. Fehrnstrom insisted that the practice is legal. But city and town clerks, who register and store birth records, argue that the cross-outs on the birth certificates could make them open to challenges by passport agents, foreign governments, and other officials. They have repeatedly asked Romney to create a new birth certificate for the children of same-sex parents that would include gender-neutral nomenclature. But Romney has resisted, arguing that the Legislature must first pass a law authorizing such a change. . . . In February, Romney, on a political trip to South Carolina, told a Republican group that he was dismayed by the clerks' effort to have birth certificates revised for the children of gay couples. ''Some [same-sex couples] are actually having children born to them," Romney said. ''It's not right on paper; it's not right in fact," he said. ''Every child has a right to a mother and a father." Gay couples and their children protested the remarks outside the governor's office, accusing Romney of exploiting them for political gain. Yesterday, Fehrnstrom said the governor believes that hand-altered birth certificates are valid. ''As long as they're recorded, they're valid," Fehrnstrom said. He argued that the Supreme Judicial Court ruling that legalized same-sex marriage put the onus on the Legislature to change the birth certificates. Fehrnstrom cited a passage in the SJC decision that postponed the start of gay marriages for 180 days from when the ruling was issued in November 2003 ''to permit the Legislature to take such action as it may deem appropriate in light of this opinion." Nevertheless, the administration did not wait for the Legislature to act when it rewrote marriage certificates for gay couples to say ''Party A" and ''Party B," gay rights advocates said. . . . Fehrnstrom argued that the administration's decision to rewrite marriage certificates and not birth certificates was consistent with the court ruling on same-sex marriage, known as Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003). ''The Goodridge decision addressed the issue of marriage, and the case with the marriage certificates goes to the heart of the court's ruling," he said. ''With respect to any ancillary issues, we are proceeding cautiously in the absence of legislative guidance.").

[150]    See http://www.beliefnet.com/story/145/story_14580_1.html, For Some Justices of Peace, Conflict in Carrying Out Gay Weddings, By William Bole, Religion News Service, May 11, 2003 (“Despite his personal opposition to gay marriage, Republican Gov. Mitt Romney has given an ultimatum to justices of the peace, who number more than 1,200 in Massachusetts. He says they will have to perform gay marriages or turn in their appointments, by order of the state's Supreme Judicial Court.”).

[151]    "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." -- Thomas Jefferson.

[152]    One Man, One Woman; A citizen's guide to protecting marriage, The Wall Street Journal, Thursday, February 5, 2004 12:01 a.m. EST (http://us.f351.mail.yahoo.com/ym/ShowLetter?MsgId=8762_4725788_33451_1558_103735_0_370_200864_3227027655&Idx=0&YY=45812&inc=25&order=down&sort=date&pos=0&view=a&head=b&box=Inbox)

[153]    Governor Romney has violated his duty to enforce the laws of the Commonwealth by failing to uphold the statutory law, Chapter 207, that has prohibited and continues to prohibit same-sex “marriages.” The Governor cannot, under a Constitution that creates his office and, therefore, his authority and which explicitly employs the word “marriage” in its text, authorize the certification of and solemnization of relationships that flout that very word. Nor can he, where the statute clearly prohibits the conduct and has yet to be repealed, enforce the opposite of what it prescribes under his duties as Chief Executive. In fact, the act of solemnizing a marriage without authority under the laws of the Commonwealth is a criminal act. See Chapter 207: Section 48. Solemnization of marriage without authority (“Whoever, not being duly authorized by the laws of the commonwealth, undertakes to join persons in marriage therein shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year, or both.”).

[154]    See Russell v. Secretary of Commonwealth, 304 Mass. 181, 187 (1939) (“A suggestion of the death of the petitioner on September 22, 1939, has been filed in each case by his administratrix. She has also filed motions that she be substituted as party petitioner in each case. Those motions are allowed. She, however, has no greater rights than her intestate had, and the motions to dismiss filed by the respondents are allowed, and in each case the petition is dismissed.); Lawson v. Rowley, 185 Mass. 171, 172-173 (1904) (statute expressly gave to justices of peace the power to punish contempt by a fine, but without an express grant to punish in any other way, that power is limited to punishment by fine); compare Cleaveland v. Malden Savings Bank, 291 Mass. 295 (1934) (“The plaintiff did not ratify and confirm the deed to her son, but on the contrary, on recovering her sanity, successfully proceeded in equity against him to set aside the deed on the ground that it was a void instrument because of her mental incapacity at the time it was executed. . . . [T]he deed was void from its inception. If the mental incompetency of the plaintiff is established in a proceeding by which the defendant is bound, the defendant as an innocent purchaser for value from the son to the extent of its mortgage stands no better than the son and acquired no title to the land. Brewster v. Weston, 235 Mass. 14, 17. Since the deed of the plaintiff to the son has been declared void, she has been in truth the owner of the land at all times here material.”) Keville v. Mckeever, 42 Mass. App. Ct. 140 (1997) (“The judge found that the Harvard Avenue deed was forged and, accordingly, the Porsche Realty Trust mortgage was void. ... If the mental incompetency of the plaintiff is established in a proceeding by which the defendant is bound, the defendant as an innocent purchaser for value from the son to the extent of its mortgage stands no better than the son and acquired no title to the land. Since the deed of the plaintiff to the son has been declared void, she has been in truth the owner of the land at all times here material." (Citations omitted.).”); Commonwealth v. Johnson Wholesale Perfume Co. Inc., 304 Mass. 452 (1939) (“When a subject has been fully regulated by statute an administrative board cannot further regulate it by the adoption of a regulation which is repugnant to the statute.”); Mass. Federation of Teachers v. Bd. of Education, 436 Mass. 763 (2002) ("[A] regulation that is irreconcilable with an agency's enabling legislation cannot stand." quoting Quincy v. Massachusetts Water Resources Auth., 421 Mass. 463, 468 (1995).” . . . The agency may not exceed those powers and obligations expressly conferred on it by statute or reasonably necessary to carry out the purposes for which the statute was enacted).

[155]    Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951) (“Massachusetts since 1780 has been governed by a written Constitution, wherein the various organs of government are enumerated and their powers defined. The people themselves and all branches of their government, legislative, executive, and judicial alike, are bound by it and owe to it implicit obedience. By that Constitution, until the adoption by the people in 1918 of art. 48 of the Amendments, all power to enact laws was vested in the Legislature. By that amendment provision was made whereby in a carefully prescribed manner and with certain precisely defined safeguards designed to make certain that there should exist a wide popular demand, to prevent hasty action, to promote wide publicity, and to acquaint the voters with the proposed laws and with the arguments for and against them, laws could be enacted by direct popular vote, except in relation to certain "excluded matters." Since the people have themselves adopted the Constitution with its amendments for their government, they are bound by the provisions and conditions which they themselves have placed in it, and when they seek to enact laws by direct popular vote they must do so in strict compliance with those provisions and conditions. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 247--248. Failure to comply will mean that no valid law has been enacted, no matter how great the popular majority may have been in its favor. Only by preserving this fundamental principle can constitutional government be preserved and orderly progress assured. The question whether or not the requirements of the Constitution have been observed and a valid law has been enacted is a justiciable question to be determined in the last analysis by the judicial department of the government whenever the question arises in a proper proceeding in court. And since the judges are bound by the Constitution and must see that its provisions and conditions are at all times faithfully observed, they must determine that question with sole reference to the facts of the case and the language of the Constitution and without the slightest regard to their own personal views as to the desirability or otherwise of the law involved.

It is proper to observe at this point that we cannot agree with the argument of the respondents that because the new c. 118A has actually been voted upon and certified by the Secretary of the Commonwealth it is conclusively presumed to be valid whether or not the requirements of the Constitution have been followed. This is a misapplication of the principle that the enrollment of a statute is conclusively presumed to embody the action taken by the Legislature upon it. Field v. Clark, 143 U. S. 649. That principle rests both upon the respect due to the legislative branch of the government and upon the confusion which would result if the courts were obliged to inquire as to all statutes into the legislative proceedings prior to enrollment. The first reason has no application whatever to initiative laws and the second reason has little, if any, force in relation to such laws. It would be astonishing and intolerable if the safeguards so carefully inserted in art. 48 could be disregarded without consequences by individual State officers and so in effect turned into mere admonitions and recommendations. The Constitution is not ordinarily treated in that manner. See Cooley, Constitutional Limitations (8th ed.) 159--164. The case of Field v. Clark was explained in Wilkes County v. Coler, 180 U. S. 506, 521--524. In the latter case it was held that failure to observe a requirement of the Constitution of a State that a vote by yeas and nays be entered on the journal of the Assembly rendered a law invalid. See Kay Jewelry Co. v. Board of Registration in Optometry, 305 Mass. 581, 584; Prescott v. Secretary of the Commonwealth, 299 Mass. 191, 196; Scullin v. Cities Service Oil Co. 304 Mass. 75, 83--84; Opinion of the Justices, 99 Mass. 636, 637; Opinion of the Justices, 135 Mass. 594, 600. The great variety of view that exists, even where the question relates to the passage of an act of the Legislature, is indicated by the cases collected in 40 L. R. A. (N. S.) 1.”).

[156]    Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951)

[157]    If a “marriage” between a man and his mother is void because it is not permitted by c. 207, and if a “marriage” between a man and an underage female is void because it is not permitted by c. 207, and if a “marriage” between a male and a female (one of whom has communicable syphilis) is void because it is not permitted by c. 207, and if a “marriage” where the person presiding over it is not a person with authority to solemnize a marriage is void because it is not permitted by c. 207, and a marriage between three people is not permitted by c. 207 (even if not explicitly addressed in the words of the statute), then a same-sex marriage would be void ab initio under the statute as well, since as the SJC pointed out, the framers of the statute never intended it to permit same-sex “marriage.” See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003). Compare Heistand v. Heistand, 384 Mass. 20 (1981) (“The ceremonial exchange of vows between the plaintiff and David Lowry was a legal nullity in this Commonwealth, as the judge below acknowledged. Massachusetts does not recognize common-law marriage.”); see also Callow v. Thomas, 322 Mass. 550 (1947) (“We are of opinion that the exception recognized in these cases is sound and that the present case falls within it. At the time of the accident the parties were husband and wife for all intents and purposes. Had no proceedings been brought to annul the marriage, this status would have endured until the marriage was terminated by death or divorce. In other words, the marriage here was voidable and not void and was valid until it was set aside by the decree of nullity. It is to be observed that this is not a case of a marriage prohibited by law such as a bigamous marriage or one prohibited by reason of consanguinity or affinity between the parties. Such a marriage is no marriage at all and is "void without a decree of divorce or other legal process." While it doubtless is true that a decree of nullity ordinarily has the effect of making a marriage, even one which is voidable, void ab initio, this is a legal fiction which ought not to be pressed too far. To say that for all purposes the marriage never existed is unrealistic. Logic must yield to realities. Public policy requires that there must be some limits to the retroactive effects of a decree of annulment.”).

[158]    See Commonwealth v. Miranda, 441 Mass. 783 (2004) (“The Appeals Court concluded that the amended indictment was a "legal impossibility" and vacated the defendant's conviction as a repeat offender. Commonwealth v. Miranda, 59 Mass. App. Ct. 378, 381, 388 (2003).”); Commonwealth v. Miranda (2003) (“Before commencing trial on indictment no. 1281, the judge purported to amend the indictment on which there had just been a verdict, no. 1280, by engrafting the repeat-offender portion of no. 1281 onto 1280 as a second count. But this amendment was a legal impossibility. . . . The postverdict amendment of indictment no. 1280, engrafting the repeat-offender portion of indictment no. 1281 as a second count, was therefore fundamentally defective, and the subsequent trial based on that amendment was a legal nullity. See Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 456, S.C., 430 Mass. 517 (1999), cert. denied sub. nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000) ("if the [repeat-offender] indictment is legally deficient, the court is without jurisdiction to try the case"). . . . the defendant was convicted of an offense for which he was not indicted by a grand jury,”); Commonwealth v. Fenton, 395 Mass. 92 (1985) (“[O]ur decision in Commonwealth v. Rhodes, 389 Mass. 641, 644 (1983), mandated that, as an adult,(fn2) [the defendant’s] conviction for carrying a carbon dioxide (CO2) powered revolver was a legal impossibility because an air gun is exempted from the operation and penalties of G. L. c. 269, § 10 (a) (4).(fn3) A Superior Court judge denied the defendant's motion [to the same effect]. The defendant appealed and the Appeals Court reversed the conviction holding that "Rhodes excludes all types of air guns from the operation of G. L. c. 269, § 10 (a), and ... the gun in question comes within a common lexical definition of the term 'air gun' or 'air rifle.'" Commonwealth v. Fenton, 18 Mass. App. Ct. 537, 538 (1984). . . . Possession of "any type of air gun," by either an adult or a minor is regulated exclusively by G. L. c. 269, § 12B. We therefore conclude that, because § 12B imposes no penalties for possession of an air gun by an adult, the defendant's conviction under G. L. c. 269, § 10 (a), is erroneous.”); Partnership Equities Inc. v. Marten, 15 Mass. App. Ct. 42 (1982) (“[U]nder the subscription contract, the defendants enjoyed the status of limited partner upon making their first payments and, according to financial information appearing in the record, would have enjoyed substantial benefits by way of passed through losses. Compare Goodisson v. North American Sec. Co., 40 Ohio App. at 89, 93--94, where the subscriber was not yet a stockholder of record and delivery of the shares subscribed to had become a legal impossibility.”); Commonwealth v. Carson, 349 Mass. 430, 435 (1965) (“If the jury found the defendant embezzled some or all of the shares (including the trust certificates representing the class A stock), as they must have found, we think a finding of guilty on the "proceeds" indictment, since it may have related to some or all of the shares within the "stock" indictment, is inconsistent and results in two convictions for a single crime. It is well settled that "a prosecution for embezzlement may follow money embezzled through a dozen reinvestments, so long as it is in the embezzler's hands." . . . In the leading case of Commonwealth v. Haskins, 128 Mass. 60, the . . . court held that the attempt of the Commonwealth to enter a nolle prosequi on one of the counts after the convictions was of no avail and that "although, as a legal effect of a conviction upon each count it cannot be said strictly that it is an acquittal upon the other, yet the finding of guilty upon both is inconsistent in law, and is conclusive of a mistrial." Id. at 61. . . . We conclude, therefore, that the judgments on the indictments for larceny of stock and larceny of money proceeds from the sale of stock must be reversed.); Quinlan v. Mealey, 270 Mass. 284, 286 (1930) (“When the contract was made the conservator had no legal authority to use or dispose of the property of his ward in any manner other than he was authorized to do by the Probate Court. Performance of the agreement at the death of the husband, while then possible in fact, was impossible within limits legally possible when the agreement was made and ever after. The legal impossibility was apparent on the face of the attempted contract. The contract was void, and the plaintiff was not entitled to damages for the defendant's refusal to perform it.”).

[159]    See footnote 2

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To AmericaPart VIII - We the People . . . Still Have Authority

If the Governor is unwilling to enforce the law, the people must.

Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;--let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap--let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;--let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.
Abraham Lincoln, The Lyceum Address

Governor Mitt Romney, referring to the above speech, said:

that Abraham Lincoln made [the Lyceum Address] when he was 28 years old. [Lincoln] said that America has a political religion and that people who are elected to office subscribe to this political religion, which is to place the oath of office, an oath to abide by a nation of laws and the Constitution, above all others,

claimed during a Sunday morning television interview on FOX News Channel (during an inquiry about his plans to run for President of the United States), that:

there's no question that as I take the oath of office as governor, and have, that I make [the Constitution] my primary responsibility.

However, as Chief Executive, Governor Romney is under a continuing constitutional and sworn duty, day after day, year after year, to comply with his oath and to uphold the laws of the Commonwealth regarding same-sex “marriage.” So far, however, he has chosen not to do so. He could be sued for mandamus. Sadly then, it was not the SJC, but rather Governor Romney’s acquiescence in the SJC’s unconstitutional conduct that has brought same-sex “marriage” to America. Without his complicity, not one fraudulent “marriage” license would ever have been issued.

The Governor’s duty is to uphold the law. The law has not changed in Massachusetts. He literally had to ignore the marriage statute as it currently exists to order the issuance of “marriage” certificates to same sex couples. The Governor’s acquiescence in this fraud, however, does not confer upon the Court the Constitutional power that it lacks.

When the SJC violates the Constitution, as it has here, if the government is unwilling to correct the illegality, it is the duty of the people to rectify it. "Statutes and constitutions do not protect judicial independence -- people do." When the Governor fails to act to uphold the laws of the Commonwealth, it is the duty of the people instead to take action and uphold them. “Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. Olmstead v. U.S., 277 U.S. 438 (1928) (Brandeis, J., dissenting). Because the Goodridge decision exceeded the SJC’s constitutional authority, it is an illegal decision and that decision is, therefore, always open to review.

Whether the SJC set out to change the statute, the Constitution, or the will of the people is irrelevant. What is relevant is that neither the statute, nor the Constitution, nor the will of the people have been followed. The Court chose a course of action in an area in which they had no discretion. Because “[g]overnments are instituted among [the people,] deriving their just powers from the consent of the governed,” the Court should not be allowed to thwart the will of the people. The people have the right, and cannot permit the SJC by refusing to comply with the explicit words of the Constitution, to frustrate that right to implement those words. When our very democracy is in jeopardy, the people must not permit themselves to be silenced by longwinded legal opinions, nor by political pressure to be “more tolerant and accepting” of a minority group and to suppress legitimate open debate of the issue.

The people ought never, as Abraham Lincoln said, “tolerate the violation of law by others.” This is especially true when those others are the very public officers entrusted with the responsibility of enforcing and sworn to uphold the law.

Thankfully, the people of the Commonwealth of Massachusetts are not remaining entirely silent. Some have begun to take action to correct the fraud from becoming entrenched precedent. Pursuant to Article 8 of the Massachusetts Constitution, the people have started the process to remove the four SJC judges responsible for this illegal behavior. "[A] fundamental principle of our representative democracy . . . [is]`that the people should choose whom they please to govern them,"' The people have also begun implementing the initial stages for a citizen’s petition to amend the Constitution.

In addition, the people of the Commonwealth have the right, like the Governor, to disregard the SJC decision as non-precedent every single opportunity that arises. While acting morally and with the highest respect for the law, doing so will inevitably subject them to fines, endless litigation, and civil and criminal contempt. The people of other states in the United States, similarly, have an enormous obligation to protect their own citizens from being poisoned by this illegality. When cases arise that call upon those States to recognize the full faith and credit of Massachusetts law, they should truthfully exclaim the Goodridge case to be unlawful and the marriage certificates void and against public policy, not simply because of the judicial activism (in finding no rational basis), but equally as important because of the blatant disregard of the Constitution by the Supreme Judicial Court and by the Governor of Massachusetts. When Goodridge is cited as authority, people both within and outside of Massachusetts must know it is neither binding nor persuasive precedent because of its fraudulent genesis.

In the end, whether the Governor’s religion really is the religion of the Constitution, as he claims, will be determined not by his political rhetoric, but rather by whether he is able to look in the mirror and admit that he does not possess (and never did) the legal authority to issue even one same-sex marriage license; something the Emperor could never do. Regardless, what is vitally important is not his admission, but whether the people will let him get away with not making it. It will take honesty, courage, and a confession of naïveté for most of us to admit that there is an obvious and gaping lack of authority that makes same-sex “marriage” in Massachusetts null and void.

But he has nothing on at all,” said a little child at last. “Good heavens! Listen to the voice of an innocent child,” said the father, and one whispered to the other what the child had said. “But he has nothing on at all,” cried at last the whole people. That made a deep impression upon the emperor, for it seemed to him that they were right; but he thought to himself, “Now I must bear up to the end.” And the chamberlains walked with still greater dignity, as if they carried the train which did not exist.