Transcript of Oral Argument

Massachusetts Citizens for Marriage
v.
Secretary of the Commonwealth
No. SJC-08966

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

May 9, 2003

ATTY. PAWLICK: May it please the Court. I'm Ed Pawlick, Attorney for the Plaintiff in this case. I would first like to express my appreciation to the Court for giving us time in your busy schedule. We really did appreciate your doing that.

I have great affection for this Court because they have served the people of this State for many hundreds of years, protected the freedom and liberty of those people. But I feel sad today because I don't think we're addressing the issues that are before the Court.

This case is not about arcane . we could make it about arcane state procedure and state law, but so far the Court has struck away all those things. So we're going to have to look at this now as a U.S. Constitution case. And hearing the previous cases [which were about millions of dollars involving large insurance companies or other large corporations, about which the judges appeared to be well prepared] makes me wonder whether we'd be doing better if we had couched this in monetary terms. We're talking about over two million dollars, not of big corporate money, but of small people. Over two million dollars spent and the money has been just thrown away. And we're told that we can come back next year and try again and maybe somebody will obey the law if we spend another two million dollars and three more years of our time. We got 130,000 signatures and this went to the Legislature for their vote, but they refused to allow a vote to be taken.

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.

Now we can argue whether or not that is because of the law in Massachusetts. We can certainly not disagree that both the Legislature and the Governor have violated that law. We could argue whether the law is there and this Court has just failed to find it, or we could say that this State has no republican form of government for this particular form of initiative procedure. But 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.

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 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.

Actually, for you to do nothing at this point [in answer to our 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 be 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 I don't know the name of the woman who is the Green Party, but they and many other people were dismayed and disheartened by what happened here last year at that scandal and they can't understand why no one in this Court appears to have that same feeling. Everybody seems, appears to ...

CHIEF JUSTICE MARGARET MARSHALL: Mr. Pawlick?

ATTY. PAWLICK: Yes.

CHIEF JUSTICE MARSHALL: Excuse me, the case we have before us, you are allowed a very liberal range of arguments, but the issue before us is the appropriateness of the order of the Single Justice, correct?

ATTY. PAWLICK: Yes. So I will close then. I will ask you to consider 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 and 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]. I would like to go just to the brief of the Attorney General. I think this sums up the entire thing. His last paragraph sums up his whole argument, on page 33. He says that if you do what we suggest — I'm quoting here — "this will defeat the purpose of the legislative minority check on initiative amendments which was to insure that the initiative petitions submitted to the people for approval have at least a reasonable amount of support as reflected by the favorable votes of at least one-fourth of the Legislators elected to the General Court."

But this [procedure] has already been "defeated" by the Legislature. It really wouldn't be us who defeat it. They [the Legislature and the Governor] already defeated it because how can we possibly show an approval by the favorable votes of at least one-fourth if there is no vote? So the summation by the Attorney General here is ludicrous.

We just ask that you — hope and pray that you consider this very carefully, and the Goodridge case, before forcing us, all of us, into Federal Court.

Thank you for your time.

CHIEF JUSTICE MARSHALL: Thank you Mr. Pawlick.

Mr. Sacks?

PETER SACKS, ASST. ATTORNEY GENERAL FOR THE SECRETARY: Peter Sacks, Asst. Attorney General for the Secretary.

We've laid out two reasons in our Brief why the complaint failed to state a claim on which relief can be granted. I believe those grounds are set forth adequately in the Brief and unless the Court has particular questions about those grounds or any other issue in this case, I think we will submit on a Brief.

JUSTICE CORDY: May I ask one question? This issue was back before the Legislature this year?

ATTY. SACKS: There has been a Legislative Amendment introduced by a Legislator that would define marriage. It is not precisely the same in text as the amendment that's at issue in this case.

JUSTICE CORDY: So the amendment that's at issue in this case is where?

ATTY. SACKS: Essentially dead, Your Honor.

JUSTICE CORDY: And that's because?

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

JUSTICE CORDY: And the Constitution does require such a vote?

ATTY. SACKS: Yes.

JUSTICE CORDY: And it did not occur?

ATTY. SACKS: Yes.

JUSTICE CORDY: And there is no remedy? And there is no remedy in Court?

ATTY. SACKS: There is not a judicial remedy. This Court has previously said that there [are] essentially two remedies. The Governor can call a joint session if the joint session has not performed its duty of taking a vote on a proposed initiative amendment, unless the Governor makes a judgment that such a call would be futile; and then a second remedy which this Court identified in the Limits Case is the political remedy, at the ballot box, for the voters to elect legislators who will do their duty under Article 48. But as the Court said in Limits, where Article 48 identified a remedy or a role for the Governor in enforcing Article 48, but did not identify any such role for the Court, that decision was intentional. The Court therefore did not grant any relief in Limits, which was a similar situation.