The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To America
Part V - Changing the Common-law is Legally Insignificant
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. 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. 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” 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 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 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).
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, 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.” 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.”
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, which is subordinate to Constitutional law.
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).” 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. 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. 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).” The SJC, therefore, abdicated its imperative duty “to say what the Constitution requires.” Their reformulation is of no legal significance.
 See note 24 supra.
 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.”).
 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
 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 ,  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 ,  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  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.”).
 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.”).
 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)”).
 See Egan v. Canada,  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.”).
 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.”).
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 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.”).
 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).”).
 Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).
 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.”).
 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.”).
 Bates v. Dir of the Office of Campaign and Political Finance, 436 Mass. 144, 168 (2002)