Posted on 12/26/2003 9:49:17 AM PST by pabianice
Excerpt 3 - Chapter 27
Gay Marriage Was a 3-3 Tie, with Marshall Casting Deciding Vote
Everyone who disagrees with Margaret Marshall is a "prejudiced bigot," according to her. When Marshall wrote that in her opinion, was she including the three Associate Justices who say she had no right to do what she did?
This was a 3-3 tie with Marshall casting the deciding vote. She had been unable to convince even her three most capable associates. They say she had no power to do what she did. No wonder she was so nervous at oral argument and is now trying to hurry this along in the legislature before anyone has a chance to think about it.
The following is excerpted from the book by Atty. Pawlick.
* * * * * * *
When Margaret Marshall saw the opinions of her fellow justices about gay marriage, she must have cringed. The judges have prided themselves upon working as a body, with few dissents. It now appears that those days may be over These were not the words of "right wing kooks" in those dissents, but her fellow Justices.
-- "Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent." Justice Francis X. Spina"
-- "[T]he case stands as an aberration. To reach the result it does, the court has tortured the rational basis test beyond recognition." Justice Martha B. Sosman
-- "Whether the court is correct in its assumption is irrelevant. What is relevant is that such predicting is not the business of the courts." Justice Robert J. Cordy
All the pundits appear to have missed the significance of the above quotations. But, then again, it's almost impossible for any newspaper reporter to have grasped this significance within their deadline. This insight does not come when you're in a frenzy to make "deadline."
The words of the dissenters show that we finally have an "intelligent discussion" in process in Massachusetts, which is what I have been attempting for five years. This should have a profound effect upon what happens here in the next six months that the court has given the Legislature to do something. The only problem will be informing the citizens about what these Justices have said. Obviously, The New York Times Company, including its two subsidiaries in the state, the Boston Globe and the Worcester Telegram, will be working to see that they never discover the truth. In their story written in the Times on November 19th, our old friend, Pam Bullock, did not go into any depth.
If Pinch was angry to see Sally's referendum come out of nowhere [the Protection of Marriage Amendment], think what he will do when he discovers this book you're holding.
One's heart must go out to Margaret Marshall. When you look at the picture of the idealistic young woman who arrived here in 1968 eager to help the world, it is sad to see her going down the road that many seem to follow when they become entwined with the Times.
Although Pinch will do his best to keep her reputation intact, for a while, he will not care when she no longer serves his purpose. Her dream of a happy SJC working together under her leadership has been shattered. That might explain her uncivilized behavior at the oral argument last spring. She knows she is not making sense.
When I first appeared before the seven judges in 2002, none of them seemed interested in listening to me. They were occupied with other things. It was readily apparent and discouraging that no one had had the time to read my briefs. Now it appears that we may finally have a court that will forego consensus and debate issues contentiously, but with respect, which is why they are there. But it seems doubtful that Margaret Marshall will be able to do that.
Cordy Was Fired Up Justice Cordy wrote the longest opinion of all and Marshall felt compelled four times to answer him, only him, by name in her opinion, which is highly unusual. She obviously realized the sagacity of his remarks. Justice Cordy was so passionate about the matter that he wrote 9210 words, as compared to 9021 for Marshall.
If lawyers in other states or academics want to understand this issue, the three dissenting opinions are the place to begin. They are better than any law review article will ever be.
I knew at the end of my last session before the SJC in May 2003 that I had gotten Justice Cordy's attention. He asked Assistant Attorney General Peter Sacks if it was correct that the only option that Massachusetts Citizens for Marriage had was to spend another $1.7 million, try again and hope that someone in the Legislature would follow the Constitution the next time. Attorney Sacks, who is only a "hired gun," as is every attorney and is required to represent his client whether they are right or wrong, replied with some skewed information and I was not allowed any time to respond. However, it appeared to me at the time that Justice Cordy had been awakened.
Here's a short sampling of Cordy's opinion. (If you wish to read more, the entire opinion is easily found. If you do not know where to go, you can use the website of the legal newspaper I used to own at www.lawyersweekly.com. All three dissenting judges joined in each other's opinion, so all three agree with what you are reading.)
Justice Cordy Explains Why We Have Marriage "[T]he institution of marriage has existed as one of the fundamental organizing principles of human society. ... Marriage has not been merely a contractual arrangement for legally defining the private relationship between two individuals (although that is certainly part of any marriage). Rather, on an institutional level, marriage is the 'very basis of the whole fabric of civilized society,' ... and it serves many important political, economic, social, educational, procreational, and personal functions.
"Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. ... [A]n orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism. ...
"The marital family is also the foremost setting for the education and socialization of children. Children learn about the world and their place in it primarily from those who raise them, and those children eventually grow up to exert some influence, great or small, positive or negative, on society. The institution of marriage encourages parents to remain committed to each other and to their children as they grow, thereby encouraging a stable venue for the education and socialization of children. ... More macroscopically, construction of a family through marriage also formalizes the bonds between people in an ordered and institutional manner, thereby facilitating a foundation of interconnectedness and interdependency on which more intricate stabilizing social structures might be built. ...
"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. ...
"Taking all of this available information into account, the Legislature could rationally conclude that a family environment with married opposite-sex parents remains the optimal social structure in which to bear children, and that the raising of children by same-sex couples, who by definition cannot be the two sole biological parents of a child and cannot provide children with a parental authority figure of each gender, presents an alternative structure for child rearing that has not yet proved itself beyond reasonable scientific dispute to be as optimal as the biologically based marriage norm. ... Working from the assumption that a recognition of same-sex marriages will increase the number of children experiencing this alternative, the Legislature could conceivably conclude that declining to recognize same-sex marriages remains prudent until empirical questions about its impact on the upbringing of children are resolved. ...
"As long as marriage is limited to opposite-sex couples who can at least theoretically procreate, society is able to communicate a consistent message to its citizens that marriage is a (normatively) necessary part of their procreative endeavor; that if they are to procreate, then society has endorsed the institution of marriage as the environment for it and for the subsequent rearing of their children; and that benefits are available explicitly to create a supportive and conducive atmosphere for those purposes. If society proceeds similarly to recognize marriages between same-sex couples who cannot procreate, it could be perceived as an abandonment of this claim, and might result in the mistaken view that civil marriage has little to do with procreation: just as the potential of procreation would not be necessary for a marriage to be valid, marriage would not be necessary for optimal procreation and child rearing to occur. In essence, the Legislature could conclude that the consequence of such a policy shift would be a diminution in society's ability to steer the acts of procreation and child rearing into their most optimal setting. ...
"The court recognizes this concern, but brushes it aside with the assumption that permitting same-sex couples to marry 'will not diminish the validity or dignity of opposite-sex marriage,' and that 'we have no doubt that marriage will continue to be a vibrant and revered institution.' Whether the court is correct in its assumption is irrelevant. What is relevant is that such predicting is not the business of the courts. A rational Legislature, given the evidence, could conceivably come to a different conclusion, or could at least harbor rational concerns about possible unintended consequences of a dramatic redefinition of marriage
"The Legislature is the appropriate branch, both constitutionally and practically, to consider and respond to it. It is not enough that we as Justices might be personally of the view that we have learned enough to decide what is best. So long as the question is at all debatable, it must be the Legislature that decides. ...
"While the courageous efforts of many have resulted in increased dignity, rights, and respect for gay and lesbian members of our community, the issue presented here is a profound one, deeply rooted in social policy, that must, for now, be the subject of legislative not judicial action."
Justices Sosman and Spina Disagree with Marshall Both Sosman and Spina also used tough language in their opinions. Sosman wrote: "Today, rather than apply that test, the court announces that, because it is persuaded that there are no differences between same-sex and opposite-sex couples, the Legislature has no rational basis for treating them differently with respect to the granting of marriage licenses....
"
(Excerpt) Read more at massnews.com ...
Well, doesn't that beat all? This woman is incapable of good judgement. Who in their right mind would marry that digusting and rude Anthony Lewis?
Heretofore, I had thought Ann Lewis, the ugly sister of Barney Frank, was thee Mrs. Anthony Lewis.
Well, doesn't that beat all? This woman is incapable of good judgement. Who in their right mind would marry that digusting and rude Anthony Lewis?
Heretofore, I had thought Ann Lewis, the ugly sister of Barney Frank, was thee Mrs. Anthony Lewis.
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