Constitutional Challenge to Goodridge
122. The Constitution of the Commonwealth of Massachusetts delegates to the Legislature the authority to regulate marriage.
123. Chief Justice Marshall in the majority opinion writes: (Emphasis added with bold type.) In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.
124. Consistent in Goodridge, beginning in the written decision by Superior Court Justice Connolly has been the acknowledgement by judges, both in Superior Court and the SJC, that the Constitution of the Commonwealth of Massachusetts delegates to the Legislation, not the judiciary the authority to regulate marriage.
125. Justice of the Superior Court, Thomas E. Connolly writes twice in his decision that allowing same-sex couples to marry is a matter for the legislature. (Emphasis added with bold type.)
126. Justice Connolly 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
127. Justice Connolly 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.
128. Chief Justice Marshall 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).
129. The Legislature’s Constitutional authority to regulate marriage was acknowledged by Chief Justice Marshall in the Goodridge decision when in the majority opinion she writes (Emphasis added with bold type): 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.
130. PART THE FIRST A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts. Article XVIII provides in relevant part: and they have a right to require of their lawgivers and magistrates, an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.
131. PART THE FIRST A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts. 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.
132. PART THE SECOND The Frame of Government. Chapter I. THE LEGISLATIVE POWER. SECTION 1. The General Court. Article IV provides in relevant part: And further, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, . . . so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth . . ."
133. PART THE SECOND The Frame of Government Chapter III. JUDICIARY POWER. 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."
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