BOSTON — As the U.S. Senate prepares to debate a federal marriage amendment, a Massachusetts legislator's efforts to remove the judges who ordered homosexual “marriage” legalized in Massachusetts is turning out to be an uphill battle.
State Rep. Emile Goguen, D-Fitchburg, introduced a bill of address — which allows lawmakers to remove judges who fail to fulfill their duties — to remove Chief Justice Margaret Marshall and the three justices of the state Supreme Judicial Court who made up the majority in the 2003 Goodridge v. Department of Public Health decision.
The Massachusetts House Rules Committee was expected to vote a second time on the bill during the week of June 28. If the bill is voted down, it moves to the House floor with the recommendation “ought not to pass.” But the House and Senate can still vote for it.
An earlier vote in the rules committee June 16 ended in a 7-7 tie with one abstention. The committee, whose meetings by state law are open to the public, had asked Goguen to leave prior to debating his bill.
“In my 40 years of public life, I've never seen anything like this,” said Goguen, who vowed to take the issue to the House Ethics Committee.
The last time a Massachusetts judge was removed was in 1973, but Goguen says most judges resign before the process is completed.
Goguen contends that the judges violated the Massachusetts Code of Judicial Conduct. Instead of interpreting the state Constitution, he said they created a new law.
Separately from his bill of address, Goguen joined forces with the Orlando, Fla.-based Liberty Counsel asking the 1st Circuit Court of Appeals in Boston to immediately halt same-sex “marriages” in Massachusetts. In May, the court of appeals agreed to expedite the hearing on the case.
The plaintiffs in the case are Robert Largess, vice president of Catholic Action League, and 11 Massachusetts legislators. Oral arguments were presented June 8. The plaintiffs contend that the Massachusetts Supreme Judicial Court exceeded its power when it redefined marriage from the “union of one man and one woman” to the “union of two persons.”
“Judges are supposed to interpret the law, not make laws,” Gougen said. By misinterpreting the Constitution and ruling in favor of homosexual “marriage,” he contends the justices “changed the law.”
‘Plan for Society’
Joan Kenney, a spokesperson for Marshall, declined comment. But attorney Vickie Henry, co-chairwoman of the Massachusetts Lesbian and Gay Bar Association, says Goguen's assertions are false.
“The job of courts is to interpret our Constitution, and that's what Marshall and the other three justices in the majority did in this case,” she said. The Goodridge decision “was a victory for love, and as people see gay and lesbian couples get married, they will see that it doesn't have any negative impact on heterosexual relationships. It just means that more families are secure in their legal status.”
Marshall spoke to the Massachusetts Lesbian and Gay Bar Association at its 1999 annual dinner, an act the Article 8 Alliance says isn't allowed by law. The alliance was founded specifically to remove the judges and is rallying grass-roots support to overturn the Goodridge decision.
Goguen says he's backed by more than 90% of his constituents and thousands more throughout the state and beyond.
“There's a lot of support out there to remove the justices,” he said. “A lot of people won't admit it, particularly in the Legislature. There's a lot of pressure put on them. I'll bet there are more than 30,000-40,000 people sending messages to legislators and particularly the governor.”
Maria Parker, spokeswoman for the Massachusetts Catholic Conference, said the state's bishops “take no formal position on the ousting of the four justices.”
“We did a great deal of work on the issue of gay marriage,” she said. “So many people said, ‘Enough is enough!' The decision was so radical and so off base that they had to do something. People got involved who had never been politically involved before.”
R. T. Neary, former president of Massachusetts Citizens for Life, contends that Marshall is not fit for the bench.
“We were the organization that came to the fore to contest her nomination in 1996 and reveal the agenda, which she had carried onto the court and was now taking to the highest opposition as chief justice,” he said. Marshall was elevated to chief justice in 1999.
When Marshall addresses homosexual organizations, “she gives an open invitation to bring cases on these issues,” Neary said. “She makes no bones about it. She has a plan for society, not only Massachusetts society.”
Earlier this year, some legislators unsuccessfully attempted to implement a compromise constitutional amendment that defined marriage as being between one man and one woman while allowing civil unions for homosexual couples.
But Brian Camenker, director of the Article 8 Alliance, calls that move ridiculous.
“The Constitution written by John Adams in 1780 was fine; it didn't need amending,” he explained. “The problem was the judiciary that was out of control. Amending the Constitution is only a stopgap measure because if the court decides a man can marry his daughter to get around the inheritance laws, you'd need another constitutional amendment.”
But Nora O'Callaghan, a professor at Ave Maria School of Law in Ann Arbor, Mich., says getting the decision reversed will be difficult.
The majority opinion in the case, she said, “starts with premises that I think are faulty. From those faulty premises, they use the proper forms of logic. It's the premises that are wrong.”
Many pro-family advocates and legislators such as Goguen fear that opening marriage to homosexuals will lead to laws condoning polygamy and inter-family marriage.
“This could mushroom so out of proportion,” Goguen said.
O'Callaghan agrees that there is potential for activist judges to use Goodridge to extend marriage rights.
“The way court decisions get extended is by taking the principles from one case and applying them to different cases,” she explained. “It wouldn't be hard to see how that could happen, but there's no guarantee it will happen.”
Patrick Novecosky writes from Ann Arbor, Michigan.