First in an Exclusive Series about 'Marriage' and 'Gay Marriage'

First in an Exclusive Series about ‘Marriage’ and ‘Gay Marriage’— Where Are We Headed?

From the Only Massachusetts Lawyer with First-Hand Knowledge
May 12, 2003

Transcript of May 9 Oral Argument: Massachusetts Citizens for Marriage v. Secretary of the Commonwealth

There was an historic confrontation last Friday before six Justices of the SJC. But a casual observer would never have realized it and no newspaper will report it, because most newspapers don't even know it happened. This series will be found only in MassNews.

The event was historic because no other lawyer in the history of the Commonwealth, to our knowledge, has ever appeared before the SJC to tell them they are breaking the law.

The confrontation occurred as the Court was hearing arguments on a lawsuit filed by Atty. J. Edward Pawlick on January 2, 2002, as he had promised, after Senate President Thomas Birmingham and Gov. Swift failed to follow the law last year — even though the SJC told them on Dec. 20, 2002, that they were required by the state Constitution to hold a vote on the Protection of Marriage Amendment.

SJC Judges Warned Not to Follow Disastrous Route of Sen. Birmingham and Shannon O'Brien in Imposing Gay Marriage

Six of the seven judges of the Supreme Judicial Court listened to Atty. J. Edward Pawlick as he warned them on Friday not to follow the disastrous route of Sen. Thomas Birmingham and Shannon O'Brien, who were soundly defeated at the polls last November after they advocated gay marriage.

"I ask you to consider," Pawlick cautioned, "that Senator Birmingham and Shannon O'Brien both went down to defeat because they opposed the Protection of Marriage Amendment and I would hate to see this Court get a stain on its face by doing the same -- making the same mistake. So I would ask you to consider that you and we both want what the people want. But we don't know what the people want [because they have not been allowed to vote as required by the state Constitution]."

Pawlick told the Justices that the best thing that could happen for conservatives would be for them to impose gay marriage on the state because that would cause a "seismic revolution" in Massachusetts politics.

"Actually," Pawlick said, "for you to do nothing at this point [in answer to his request to send the Protection of Marriage Amendment on to the new Legislature] may be the best thing for the conservative movement because over 60% of the people in this state oppose gay marriage and if this is imposed upon them, there is going to produce a seismic revolution that will forever have a tremendous effect upon the politics of this state.

"And this is not something that just right wing conservatives look at. I mean, people such as Robert Reich, Michael Dukakis, Senator Kerry and [Jill Stein of the Green Party] and many other people were dismayed and disheartened by what happened here last year at that scandal, and it's hard to understand why no one in this Court appears to have that same feeling."

The judges were advised that Atty. Pawlick's client and wife, Sarah McVay Pawlick, has been laughed at because she has not believed that the SJC would allow the law to be broken in order to impose gay marriage on the state, disregarding the wishes of the citizens.

"My client has been laughed at by many people because she has told them, and she has told national groups out there, that Massachusetts will come through. The people of Massachusetts are good; the courts are good; the judges are good; and in the end, they're going to come through. But she has been laughed and scoffed at, both here in this state and outside this state, for taking that position.

"They [the scoffers] believe you will not change because this case has an obvious direct impact on the Goodridge case. And you are now deciding the Goodridge case. My client was very much shocked and surprised to read the transcript of the Goodridge case because it gave an indication that at least some of the judges in this Court are going to overturn the definition of marriage or vote to overturn it. We don't know how many or whether the Court is going to do it, but at least some of the judges appear determined to do that, overturn the most basic unit of our society, which is the family."

The attorney reminded the judges that this was the fourth time he had appeared before them since October 2002, and it had become painfully obvious that he was going to have to go to federal court in order to get some relief for the citizens of the state.

"What we're really debating today is whether this case should be adjourned to a courtroom down on the Harbor [in the new federal courthouse]. It seems that that's what we're going to do because there are many issues that are before the Court concerning the U.S. Constitution. Probably the most important one at this time is Article 4, Section 4, which says that the U.S. Constitution guarantees to every state a republican form of government. And a republican form of government means representative. We're deciding today whether a federal court has to sit on this case because we've lost our ability to convene a representative state government."

Atty. Pawlick said they could argue whether or not that is because the law of Massachusetts is defunct in not providing a satisfactory procedure to protect the citizens of the state or whether the SJC has been derelict in not understanding the tremendous scandal that has occurred — or whether the SJC is so intent on imposing gay marriage upon the state that they will also break the law in order to do so.

But he said that the cause of the scandal is unimportant. "Regardless of what the cause is, the State no longer has a republican form of government. I don't see how anyone can gainsay that, and most citizens out there believe that you are not going to correct this matter."

Justice Cordy was confused by the addition of another Amendment that has been proposed this year by the Massachusetts Family Institute. He questioned the Asst. Attorney General and was told that there is such a new Amendment. To this the Judge replied by asking what was the status of the Protection of Marriage Amendment, which prompted the following colloquy with the Asst. Attorney General:

"Because the Legislature into which it was introduced, the 2001-2002 Legislature, did not give it at least 25% approval of the joint session."

Atty. Pawlick tells MassNews that the question from Justice Cordy is the type of thing that is totally frustrating. The judge's questions were all explained in the brief which Pawlick spent weeks preparing, but none of the judges ever appear to read anything that is presented to them in this case.

Pawlick will write about this and much more for our readers in the continuing installments of this series.