What Will Happen? May 24, 2007
What will happen should Goodridge be overturned or suspended? Goodridge the legal decision to allow same-sex (gay) marriage was ruled on the lowest level of legal scrutiny. The SJC rejected the plaintiffs arguments for a decision based on strict judicial scrutiny. It did not address homosexuals being a member of a suspect class and it did not find a marriage to be a fundamental right. The Goodridge decision may be read at www.state.ma.us/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html
Where a statute implicates a fundamental right or uses a suspect classification, we employ strict judicial scrutiny.
Because the statute does not survive rational basis review, we do not consider the plaintiffs arguments that this case merits strict judicial scrutiny.
The Goodridge decision was conditional and limited in its ruling, which was that the Department of Public Health did not adequately justify the law, and the law itself did not set forth the grounds on which it is based. The defendants the Commonwealth of Massachusetts, represented by the Attorney General’s office failed to present a strong case. Therefore, the SJC left open the possibility that the present marriage status could have been adequately supported by clearer evidence. Thus, allowing for the possibility in a future legal challenge the Goodridge decision may be overturned or suspended.
Consistent in Goodridge, the legal challenge for same-sex/gay marriage beginning in the written decision by Suffolk Superior Court Justice Connolly has been the acknowledgement by judges, both in Superior Court and the Supreme Judicial Court, that the Constitution of the Commonwealth of Massachusetts delegates authority to the Legislation, not the judiciary to regulate marriage.
Justice Connolly (Emphasis added with bold type) writes: While this court understands the reasons for the plaintiffs’ request to reverse the Commonwealth’s centuries-old legal tradition of restricting marriage to opposite-sex couples, their request should be directed to the Legislature, not the courts.
Justice Connolly (Emphasis added with bold type) writes: This court acknowledges the inherent contradiction that the Commonwealth allows same-sex couples to establish legal relationships with their children but not with each other. Adoption of Tammy, 416 Mass. 205 (1993); Adoption of Susan, 416 Mass. 1003 (1993); E.N.O. v. L.M.N., 429 Mass. 824, cert. Denied, 528 U.S. 1005 (1999). Furthermore, the Legislature amended the adoption laws to allow adoption of children by same-sex couples. See Acts & Resolves 1999, 3 * 15. The Commonwealth’s elected representatives, not courts, should resolve this paradox. See Connors, 430 Mass at 43 (excluding the word spouse to exclude domestic partners). While this court understands the plaintiffs efforts to be married, they should pursue their quest on Beacon Hill.
Chief Justice Marshall of the Supreme Judicial Court in the majority opinion in Goodridge (Emphasis added with bold type) writes: Civil marriage is created and regulated through exercise of the police power. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983) (regulation of marriage is properly within the scope 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” (citations omitted). Opinion of the Justices, 341 Mass. 760, 785 (1960). [FN12] See Commonwealth v. Alger, 7 Cush. 53, 85 (1851).
It leaves intact the Legislature’s broad discretion to regulate marriage. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983)."
A member of the Massachusetts Legislature upon entering office takes an oath of office. In this oath they swear to support and uphold the Constitution and Laws of the Commonwealth of Massachusetts.
Under the Constitution and Laws of the Commonwealth and of the United States every person chosen or appointed to any office, civil or military, under the government of this Commonwealth, before he enters on the duties of his office, is required to take and subscribe the following oath or affirmation: (Commonwealth of Massachusetts the Manual for the General Court 1997-1998, pg. 239).
THE OATH OF OFFICE
I,_______________________, do solemnly swear that I will bear true faith and allegiance to the Commonwealth of Massachusetts and will support the Constitution thereof. So help me, God.
I,_______________________, do solemnly swear and affirm that I will faithfully and impartially discharge and perform all the duties incumbent on me as ___________, according to the best of my abilities and understanding, agreeably, to the rules and regulations of the constitution, and the laws of this Commonwealth - So help me God.
The current proposed amendment to the Massachusetts Constitution to maintain the status quo that marriage is a relationship between one man and one woman requires a second successful vote in a Constitutional Convention to allow the citizens of the Commonwealth of Massachusetts to vote and participant in the governing of the Commonwealth of Massachusetts. Likewis,e this proposed amendment has past constitutional, judicial, and legal scrutiny in two legal challenges to it that have reached the Supreme Judicial Court of Massachusetts. The first ruling was that the amendment is going forward and thereby is not an attempt overturn a previous SJC ruling in the 2003 Goodridge case. In a side note of possible interest, the lead plaintiff couple Hilary and Julie Goodridge, in the legal challenge to allow same-couple to marry married in May of 2004 and separated in July of 2006. The second ruling addressed the responsibility of the Massachusetts Legislature to vote on proposed Constitutional Amendments. The SJC ruled they had no authority to demand the Legislature to take a vote. But in strongly worded language encouraged the Massachusetts State Legislature to uphold their oath of office to support the Constitution of Massachusetts and exercise the authority delegated to them in the Massachusetts Constitution to regulate marriage by voting on the proposed marriage amendment to the Massachusetts Constitution. The Legislature followed the advice of the SJC by taking a vote on January 2, 2007, a vote of approval, thus requiring a second vote.