Saturday, June 17, 2006

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

Part 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.

[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 (“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)).