By Ed Oliver
December 4, 2002

The attorney for the sponsors of the Protection of Marriage amendment appeared before the whole Supreme Judicial Court on Dec. 3 to urge the judges to enforce the state Constitution and to see that it is obeyed.

The case started in July, two weeks after the Legislature adjourned without voting on the Amendment.

The court took the case under advisement.

The attorney, J. Edward Pawlick recommended that the judges just tell the Secretary of State to send the Amendment on to the next Legislature which begins in January, just as though it had been approved.

It was pointed out to the full Court that Justice Greaney had written an opinion in 1992 where the court did that in a referendum for a new law, where the legislature had failed to act.

"They [the Court at that time] were not going to argue with them," Attorney J. Edward Pawlick advised.

"They were not going to send it back or issue a writ of mandamus. They just told the Secretary of State that the legislature had forfeited their right. Just move it on. Let's have a vote. And we realize [that a people's petition for] a law is different from a Constitutional Amendment, but it's not really different. The Secretary of State also has a duty in a Constitutional Amendment when he sends it to the Legislature, to watch it.

"He can not ignore it and let it die and let it fade away. He has a duty to see what happens and to watch that too. And when nothing comes back, he has a duty the same as happened in the 1992 case to see what happened to that initiatve [referendum]. When he sees that they haven't followed through on it, the same thing should happen. It should just go on to the next legislature and that is not a very drastic step because it's still in the legislature. It's just gone to the next session.

"But they still have the chance in this one to act properly, to follow the Constitution, to obey it, to have a debate and have a vote. If they don't like it, they can turn it down, but they can do it by following the Constitution, which is what they're required to do."

SJC Should Stay in Charge of Constitution

Pawlick was visibly disturbed with attempts by Asst. Attorney General Peter Sacks to paint the Governor as the one in charge of seeing that the Senate President obeys the Constitution, just because she is given the duty of calling them back if they failed to obey the Constitution.

Pawlick told the justices that was "hogwash!"

"As far as the role that is given to the Governor," Pawlick said, "there's nothing in there that says because they've involved the Governor in this process, that [means] they've taken away your right, the right of the Supreme Court to monitor the Constitution and what is done. No! Nowhere by giving the role to the Governor, have they taken away [pause] are you going to allow them to take away your judicial function? That's [long pause] hogwash."

Important for Future

"It's really not important how they rule as far as our case goes because we are going to win it in the political arena," Pawlick told MassNews. "What we're concerned with is that this whole mechanism for amending the Constitution that was devised in 1918 is broken because of past actions of the Court. It won't be used anymore unless the Court takes charge now. There is a big difference in the way the SJC has been treating a referendum for new laws or for a referendum for a new Constitutional Amendment.

"This court has a duty to make this clear and correct the mistakes of the past. Nobody will propose any further Amendments if something isn't done. They are killing the whole process," said Pawlick.

The travails of the Marriage Amendment present a classic case of why Article 48 was written in the first place, Pawlick contends. Supreme Court Justice Greaney wrote in 1992 that Art. 48 is a "people's process," which gave the people a direct opportunity to enact laws regardless of legislative opposition.

In a separate but related development yesterday, Governor Swift asked the SJC for the court's opinion on whether she is required to call the legislature back into session to finish their Constitutional business on three ballot initiatives, including the Marriage Amendment.

Events came to a head last July 17, when a Constitutional Convention led by Senate President Thomas Birmingham failed to vote as required on a proposed Marriage Amendment, voting instead to let it die without debate or vote on the measure itself.

Two weeks after they adjourned on July 31, the president of Mass. Citizens for Marriage, Sarah McVay Pawlick, sued Sen. Birmingham and sought clarification from the SJC about the duties of elected officials in the Article 48 initiative process on amending the Constitution.

In October, a single justice dismissed the suit without addressing the legality of Birmingham's actions and other substantive issues because he said that she was just another citizen and had no right to sue a legislator.

Yesterday the full court heard the appeal from his decision. The parties were allowed only ten minutes apiece to argue their case.