Same-sex marriage licenses are null & void

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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


AND THEN . . . AFTER MAY 17, 2004,

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

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

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

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

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

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

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

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

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

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

Introduction - The Demolition of Democracy

Part I - Legal Authority

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

Part III - Changing Common Law Did Not Change Chapter 207

Part IV - Changing Common Law Did Not Change the Constitution

Part V - Changing the Common-Law Is Legally Insignificant

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

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

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

IntroductionThe Demolition of Democracy[1]

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

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

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

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

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

ENDNOTES

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

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

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

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

5   find a citation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Goodridge Court Declared the Massachusetts Marriage Statute Unconstitutional

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

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

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

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

The Supreme Judicial Court explained that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[55]    CITE Massachusetts Constitution

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

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

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

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

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

[61]    find citation

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

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

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

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

[66]    See Goodridge, supra

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[68]    CITE

[69]    See Goodridge (defining the word marriage)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From Canon 2, Section B:

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

From Canon 3, Section B(5):

A judge shall perform judicial duties without bias or prejudice.

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

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

From Section 3E(1), Disqualification:

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

From the Commentary of the above section:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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