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Is Massachusetts A Lawless Society?
by Robert P. Kiley
30 March 2004

The Massachusetts Supreme Court is not the only institution that abdicated its responsibility in the gay marriage fiasco.

We just might be witnessing the collapse of a once great society, not from an invading army, but from decay within.  As a conservative, I am routinely labeled by those that disagree with me.  I suspect upon reading the following, a new label might make the list -- paranoid. Maybe so, but I will leave that for you to decide.

Several years ago, 1986 to be precise, the Massachusetts legislature passed a mandatory seat-belt law.  Citizens led a successful repeal effort to have the issue placed on the ballot, and the law was soundly defeated.  Before the celebration for personal liberty had concluded, the legislature passed a new seat-belt law.  As I think back to what crossed my mind at the time, I remember thinking that while the will of the people had been ignored by our “representatives,” it’s dumb not to wear a seatbelt.  What was the big deal, I thought.  No harm, no foul.

By the summer of 2003, our “representatives” struck again.  A divided Massachusetts legislature voted to water down the state’s new English Immersion law.  The most controversial measure allowed schools to continue and even expand bilingual programs for elementary school students, defying a voter backed mandate intended to restrict such courses to older children.

In November of 2002, voters passed Question 2 on the state ballot with a 68 percent majority.  The new law ended three decades of bilingual education by placing immigrant students in a one year English Immersion program before moving them to mainstream courses.  Or so the voters thought.  Once again, the will of the Bay State voter was thwarted.  State Senator Jarrett T. Barrios insisted that the legislature was merely “tuning up” the law while Shawn Feddeman, a spokesperson for the Governor, stated that elected officials “seemed confused about the way democracy works.”  Confused indeed Shawn.  This time, I was not so casual toward the actions of my government.  This time, I was concerned.

I began to wonder what else was going on behind the scenes – what other rules were being ignored – exactly how many of my rights were being violated “while the people slept.”  Could all three branches of government in the Commonwealth be turning their backs on the Constitution?  Maybe so, but I will leave that for you to decide.

On November 18, 2003, the Supreme Judicial Court of Massachusetts (SJC) issued its decision entitled Goodrich vs. Department of Public Health.  Liberals hailed it as a step forward in civil rights and the gay community began to plan Spring weddings.  Conservatives blasted the decision as harmful to the institution of marriage.  As I began to look deeper at the case, I can sum up my opinion regarding the ruling’s determination on homosexual marriage this way – I don’t care.  Why?  The governor, the legislature and the SJC are in violation of the Constitution.  That’s all that matters, and unfortunately, that reality has gone virtually ignored.

The debate over homosexual marriage has been simmering for some time in Massachusetts.  The Constitution was first violated on July 17, 2002 when the legislature adjourned without taking a vote on the Marriage Amendment.  In a December 20, 2002 ruling, the SJC noted that the July 17 vote (or non-vote) was not the “final action” required by Article 48 of the Massachusetts Constitution.  In a footnote, the court expressed its displeasure that then Governor Jane Swift waited until December to address the court.  Not only did the legislature violate the Constitution by not voting on the Marriage Amendment, but the Governor violated it as well by not recalling the legislature to force a vote.  After the collection of 130,000 signatures, the Protection of Marriage Amendment was killed by an unconstitutional maneuver by the senate, and a deliberate delay by the governor.  The will of the people was ignored – again.

By the time Goodrich vs. Department of Public Health ruling came down on November 18, 2003, in retrospect, one should have only assumed that since the legislature and governor had violated the Constitution, the SJC would do the same.  They did.  I will not address the minutia of the ruling because, quite frankly, it makes me sick.  The majority opinion boils down to the “evolving paradigm” of marriage and relies quite heavily on recent changes to Canadian law.  Yes, I said Canadian law.  Feel free to find and examine the details on your own.

My primary concern and focus is the Massachusetts Constitution under “Judiciary Power” Chapter III, Article V which states that “...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.”  Clearly, the Constitution of the Commonwealth grants jurisdiction over marriage solely to the governor and the legislature.  Period.  Stop.   Do not pass GO and do not collect $200.

In the 4-3 ruling which will result in gay marriage on May 17, 2004, I should add that Chief Justice Marshall had no authority to break a 3-3 tie.  Honestly though, since a friend of the court brief which highlighted Chief Justice Marshall’s advocacy for gay marriage, and her friendship with plaintiff’s attorney Mary Bonauto went ignored, I don’t know why I bother to mention this tid bit.  One would think that since Chief Justice Marshall should have recused herself from the case, the vote of the justices was a tie, and the decision written by the Chief Justice is a nullity.  As a result, the Massachusetts legislature is not required to revise its laws with respect to same-sex couples.  Unfortunately, given the track record of the legislature, I cannot assume that it will act within the boundaries of the Constitution.

For years, Massachusetts government has violated the will of the people.  For years, government has ignored the Constitution.  While I was not paying attention, I fear my state has become a lawless society.  I can only hope that come May 17, 2004 when homosexual marriage will become legal, Governor Romney will have the courage to site the Constitution he took an oath to defend and protect, and retain jurisdiction over marriage.  I say again, marriage is not the issue here – respect for the rule of law is.   So, have I overreacted?  Am I paranoid?  Maybe so, but I will leave that for you to decide.  If we have become a state without law, just don’t tell the bad guys – that is, if you can figure out who the bad guys are.

Robert P. Kiley is a Chief Financial Officer for the hospitality and real estate development industry in Southeastern Massachusetts.

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