Saturday, June 17, 2006

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

Part 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]

[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)