By J. Edward Pawlick,
Attorney for Massachusetts Citizens for Marriage
July 21, 2003

Will gay marriage be imposed upon Massachusetts by our Supreme Judicial Court in the Goodridge case?

As the lawyer who has appeared before the Court four times since last October arguing for traditional marriage in our state (twice before a Single Justice and twice before all the Justices), I have some feelings about what is happening.

If the judges decide to leave the definition of marriage that has always existed in Massachusetts, it will be a wonderful day for all Massachusetts citizens, both homosexuals and heterosexuals.

It will be a great day for heterosexuals because the SJC will not be intruding upon their right to make that most basic decision.

It will be a great day for homosexuals because their small number -- about 3% of citizens -- will quietly be able to do their thing without being bossed by militant activists. The average homosexual knows that if the court does impose homosexual marriage, it will highlight every one of them for scrutiny by every "nut-cake" in the state. It will make their lives unbearable.

If the SJC does not force a change upon us, we will finally be able to get beyond this manufactured "crisis" and go back to the really important issues for everyone.

After the Court delayed its decision for a day or two last week, most of us had our first ray of hope - that the judges were not going to intrude upon this basic decision about governing ourselves. But most of us were cautious, believing that the Court might be frantically rewriting their opinion to include the recent U.S. Supreme Court case about sodomy in Texas.

But it shouldn't take this long to re-structure a court opinion. The longer the SJC waits, the more it appears there is discord on the bench. This Court likes to do things as a group; they do not like dissent. It appears that they might not have unanimity on this subject.
It looks as though they are trying to reach as much unanimity as possible.

So who will back down?

At the oral argument of the case on March 3, it appeared as though the Court was hell-bent on changing the law. But a closer analysis showed that it was mainly two judges -- Chief Justice Margaret Marshall and the longest-serving, John Greaney, who gave that impression. Those two appropriated 82% of the time that had been allocated to the Assistant Attorney General, Judith Yogman, to present her case against changing the laws of marriage in Massachusetts.

Although Margaret Marshall hopes to ride this case to her own personal fame and a seat on the U.S. Supreme Court, it is a dangerous step, particularly if there is a strong dissent. She would be most hesitant if she has only a 4-3 majority. She is a political person. Although she has the New York Times/Boston Globe complex solidly behind her since she married their most powerful columnist, Anthony Lewis, they have their own serious problems with credibility nowadays.

Only two people, both lawyers, were allowed by the SJC to give any testimony at all about this measure or to debate it, unlike hearings that are held by legislatures. The total time allowed to both was 37 minutes and 11 seconds to discuss the merits of this momentous matter. Atty. Yogman had been talking for only 8 seconds when Justice Marshall first interrupted her with a contentious question. Yogman was kept busy answering questions and was given practically no time to make her points. When she requested 30-seconds more at the end to finish a thought, Marshall snapped, "I'm afraid your time is up." Marshall had just finished telling Yogman she could have "a few minutes to sum up," but then the Chief closed down the charade after only 28 seconds.
Judge Greaney assured the lawyer for the plaintiffs, Mary Bonauto, that she will win the case. He told her, "…if you win, and I'm certain you would…"

Who is Margaret Marshall?

Margaret Marshall is in her late fifties and is married to Anthony Lewis, former premiere columnist for the New York Times, who is twenty-years her senior. She apparently has no children and some say that as a result, she has no appreciation for the feelings of women who do. They say she has never had any experience with a family and has focused only on her career.

The Globe lobbied heavily for her appointment in its Editorial, opinion and news pages. The appointment was strongly opposed by many. In a "news story" on Oct. 12, 1999, titled "Rulings show nominee a moderate jurist with progressive views," the first sentence of the Globe story was:

"Sex offenders have rights. … Modern families no longer mean just mom, dad, and the kids."

The paper cited some of those "moderate" rulings by Justice Marshall:

o The Globe wrote: "When the SJC last August ruled that anyone convicted of a sex crime is entitled to a hearing before being listed on the state's sex-offender registry, Marshall wrote: 'The burden will be on the sex offender board to establish at the hearing that the offender poses a risk to vulnerable populations.'"

o Concerning an opinion where Marshall had struck down a Boston ordinance creating domestic partners because it was clearly forbidden by state law, the Globe wrote:
"Marshall urged state lawmakers to craft legislation that acknowledges the place of nontraditional families in modern life.' We recognize that . . . [a] "family" may no longer be constituted simply of a wage-earning father, his dependent wife, and the couple's children,' Marshall wrote. Nonetheless, 'Adjustments in the legislation to reflect these new social and economic realities must come from the Legislature.'" (The foregoing text appeared in the Globe exactly as printed here.)

The news article also claimed: "An examination of her rulings and the comments of colleagues indicate a moderate jurist who tempers some of her progressive views with judicial restraint and an awareness of the powers and limits of the courts. In the tradition-bound court that convenes in a high-rise on Pemberton Square, Marshall, the controversial chief justice nominee, has also added energy and spice to a frequently bland bench."

Marshall graduated from college in her South African homeland in 1966 and came here two years later for a master's degree from Harvard. After Yale Law School, she became a partner in the prestigious firm of Choate, Hall and Stewart, leaving there to become General Counsel for Harvard University. She was appointed to the SJC in 1996 and then elevated by Gov. Cellucci to Chief in 1999.

Most People Believe Sarah McVay Pawlick Is Wasting Her Time Appealing to the Courts

The President of "Massachusetts Citizens for Marriage" still believes that the courts are basically fair, although some judges are not, as is true with people everywhere.

Her attorney and husband, J. Edward Pawlick, says, "Sally lost me back at the time of oral argument." Despite her confidence, he wondered at that time if they had a chance.

He wasn't the only one. The woman who is leading the fight for traditional marriage in Massachusetts, Sarah McVay Pawlick, has been told by most people that she is wasting her time appealing to the courts or to anyone else in this state.

Her lawyer says that many citizens, together with others on the national scene, have been pointing to this gay marriage case which seeks to impose gay marriage on our state. "Most people appear to have already decided that the Court will hold in favor of gay marriage. They know that the Protection of Marriage Amendment would not permit gay marriage and that is why they believe Sally will never win in this court."

Atty. Pawlick filed his second suit in the SJC on January 2, 2003, asking it to send the Amendment directly to the new legislature because last year's legislature under Senate President Tom Birmingham violated the Constitution by voting to adjourn without a vote on the measure. The SJC had held on Dec. 20, after a suit brought last year by Pawlick, that the law had been violated. But neither Birmingham nor Swift took any action to comply with the judges' instructions.

Attorney Pawlick said that his wife points out to everyone that she has not seen unfairness in the legal cases she has observed in the last few years.
"There's no question, however, that she has her head on the chopping block, ready to be ridiculed and laughed at if she is proven wrong," he told the Court.

"Her greatest concern is that she will be turned away without any answer as to who can sue. In particular, she is unable to understand why everyone appears to be able to sue the Secretary of the Commonwealth except her. Regardless of whether she is right or wrong about the merits of her suit, why would she be estopped from raising the issues? If she is not allowed to sue, who can?"

The lawyer wrote in his 33-page brief that the other side argues that MCM should just try again. That means, he says, that they are allowed to spend another three years of their lives and $1.7 million -- only to be laughed at once more in 2005! "Can anyone deny that if that is true, we have lost our republican form of government in Massachusetts?"

SJC Still Has Not Ruled on 'Protection of Marriage' Amendment

The SJC still has not ruled on the suit concerning the Protection of Marriage Amendment which was filed by MCM on January 2, 2003, with oral argument held in May. The suit asks the Court to send the Amendment on to the current legislature with a vote by the people at the polls in November 2004.

Lawsuit for Libel Against New York Times Company by Sponsors of Marriage Amendment Is Moving Forward

A lawsuit that was filed for libel in April in federal court in Boston against The New York Times Company by Massachusetts Citizens for Marriage and its President, Sarah McVay Pawlick, is moving forward.
The defendant, The New York Times Company, requested the plaintiffs to agree to extensions of 14 days, 21 days and 3 days, a total of 38 extra days, for it to research the matter before filing a responsive pleading. That was agreed to by the plaintiffs.

Judge Patti Saris has been appointed to hear the case and she assented to the continuances.

The main thrust of the defendant's response is that the service of the suit on The New York Times Company is not valid because that company is merely the owner of the Boston Globe and has no control over its management.

The plaintiffs will be responding to that claim within the next few weeks.
The two plaintiffs are seeking damages in excess of $1.7 million plus punitive damages and emotional distress.

"Most lawyers will say that we do not stand a chance in this lawsuit," says Atty. J. Edward Pawlick.

"But they do not understand the egregious facts in this case," he continued. "This is the classic case of a 'bully in the schoolyard,' which the Times claims to be against, but they are the biggest bully of all. At the very least, many more people will come to understand that. When these facts are exposed, I believe a lot of people will be surprised. We may start to see much more awareness of the power structure and of the many changes that are necessary in our state."

The lawsuit says that the Globe and the Times have the right to oppose the Amendment and to urge that the courts impose homosexual marriage in the state -- which would not be permitted if the Amendment is approved.

However, states the suit, "Both the Times and the Globe have gone far beyond the ethics of journalistic standards and have used their news columns to promote their beliefs, including false and libelous statements about Pawlick and MCM."

The suit says that the claims of "Save Our Horses," which have been heavily publicized by the Globe since November 21, 2001, "gave the impression that Pawlick and MCM were lying and using deceptive practices, particularly in regard to those who wanted to sign the horse petition and had been 'tricked' into signing the plaintiffs' petition instead."
The suit goes on to say that the New York Times newspaper jumped in on Sunday, April 7, 2002, only three days before the hearing in the Legislature, with a large story in its national edition and a banner headline across the top of page 22, "Drive to Ban Gay Marriage Is Accused of Duping Signers." This was an attempt to influence the hearing even though there was nothing new to report, says the suit.

Pawlick states in the suit that that charge of fraud was used against her many times at that hostile hearing before which she testified.
The suit says that the amount of damages will depend upon whether the Supreme Judicial Court agrees to instruct the Secretary of State to send the Amendment to the new Legislature as though it had been approved by the old one. If it does not do so, then the plaintiffs will be seeking the entire $1.7 million that was spent on the Amendment. However, if the SJC does move it on, then the damages would be approximately $500,000 which was spent since July 31, 2002, in an attempt to counter the libel of the defendant and to inform the public of the facts.
In addition, Pawlick is also seeking punitive damages and damages for emotional distress.