Letter to the Editor
Why Was Gay Marriage Decision "Illegal?"
            An article in Mass. News referred to the 2003 Goodridge decision in
favor of same-sex marriage as "illegal."  I have read quite a bit on
this subject, but have never heard the court decision deemed "illegal,"
so I am curious about this.
            I wonder if you or the author could shed any light on this. Thank you,
            Tucker Lieberman
Reply by Editor:
            There are two reasons the opinion was illegal.
            Reason #1: The six Associate Judges were evenly divided about whether they had a) the legal power to impose gay marriage and b) if so, whether they should do so. Only three signed Judge Marshall’s decision. The other three refused and continue to be adamantly opposed to it. As a result of the tie, Chief Justice Margaret Marshall had to decide the case herself. However, she had previously, in 1999, attended a meeting of the Gay & Lesbian Bar Association where she told about 200 people that she was in favor of gay marriage. This, without question, shows she had bias in the matter and should not have participated in any manner in the 2003 decision. She was required to recuse herself from such participation. Therefore, the vote was a 3-3 tie and the case should have been dismissed after the plaintiffs appealed to the SJC from the decision of the trial judge.  (The trial judge had dismissed the case and had also said that the courts did not have the power to impose gay marriage.)
            You will reply that if all that is true, why didn’t someone appeal? The simple answer is that the only place that anyone could appeal to was to Marshall herself. She had been very careful not to raise any issues under the U.S. Constitution or federal law that would allow an appeal to any federal court.
            Reason #2: The three judges who refused to sign Marshall’s ruling say that even if Marshall could legally participate in the decision, even a 7-0 ruling would be illegal. They say that no judge can take illegal power just because he or she would like to do so. Even if the vote were 7-0, this abuse of power violates the state Constitution, and Marshall and the three judges who voted with her had no legal right to do what they did.          
            The reason you have never heard any of this before is that the owner of the New York Times, who also owns the Boston Globe and controls the news in this state, is the country’s foremost advocate of gay marriage. His name is Arthur O. Sulzberger, Jr., also known as Pinch. His father was Arthur O. Sulzberger, also known as Punch.