The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To America
Part VI - C.207 Continues to Prohibit Same-Sex "Marriage"
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). 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).
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.”
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), 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. 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. 
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. 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.
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. The Massachusetts Marriage Statute (Ch. 207) is still in effect because the SJC did not strike it down. “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].” All that the Court did was to “declare” the statute unconstitutional, which is all they had been asked to do. 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, 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. 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.
 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.”).
 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.'").
 Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)
 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.”).
 See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)
 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.”).
 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.’”).
 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?
 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."
 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.”).
 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)
 See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)
 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.”).
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