Constitution for the Commonwealth of Massachusetts (August 10, 2005)
Constitution for the Commonwealth of Massachusetts: This handout will discuss information from the Constitution for the Commonwealth of Massachusetts and the Goodridge vs. the Department of Public Health court case. It is the third handout in a series with information that may be useful in a possible legal challenge to gay marriage in Massachusetts. What is granted by judicial decree is often a fragile victory. What is granted by judicial decree may later be overruled in a subsequent legal challenge. Such is the case with same-sex marriage or what is often referred to as gay marriage. Without assurances by securing through the legislative process the gains made through the court case Goodridge vs. Department of Public Health may be lost in a new legal challenge. Those who raise a legal challenge to gay marriage will be presenting their arguments against gay marriage and it will be the responsibility of the Attorney General’s office to overcome them in defending the State of Massachusetts allowing gay marriage.
The first two articles quoted are from the Constitution for the Commonwealth of Massachusetts in the section titled Part the First: A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts. The first article, Article XX, quoted addresses the legislature and the power of suspending or the execution of the laws. Article XXX refers to separation of powers among the three branches of state government, legislative, executive, and judicial.
Article 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. [See Amendments, Arts. XLVIII, I, Definition and LXXXIX.] (www.mass.gov/legis/const.htm)
Article XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men. (www.mass.gov/legis/const.htm)
This next article, Article VI, quoted is from the section titled Part the Second: The Frame of Government Chapter VI. Oaths and Subscriptions; Incompatibility of and Exclusion From Offices; Pecuniary Qualifications; Commissions; Writs; Confirmation of Laws; Habeas Corpus; The Enacting Style; Continuance of Officers; Provision for a Future Revisal of the Constitution, etc. It also addresses the role of the legislature and the laws of the State of Massachusetts.
Article VI. All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution. (www.mass.gov/legis/const.htm)
In majority opinion written by Chief Justice Marshal she acknowledges, it is the Legislature’s power to enact rules to regulate conduct.
"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)." (www.state.ma.us/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html)
It leaves intact the Legislature’s broad discretion to regulate marriage. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983). (www.state.ma.us/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html)
How does granting same-sex or gay marriage by judicial decree fulfill the Legislature’s broad discretion to regulate marriage that was acknowledged by Chief Justice Marshal in the majority opinion?
Where in Chief Justice Marshall’s opinion is the following article, Article V, from the section
Part the Second: The Frame of Government Chapter III Judiciary Power addressed?
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. (www.mass.gov/legis/const.htm)
The Constitution for the Commonwealth of Massachusetts contains provisions for it being amended by the citizens of the Commonwealth through popular initiative and popular referendum. They are included in the section Articles of Amendment Article XLVIII. Definition. Was this acknowledged in the majority opinion written by Chief Justice Marshal? These two provisions require longer a period of time then the 180 day stay of the judgment in the case of Goodridge vs. Department of Public Health.
"Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. See, e.g., Michaud v. Sheriff of Essex County, 390 Mass. 523, 535-536 (1983)." (www.state.ma.us/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html)