Monday, May 25, 2009

The Constitutionality of Same Sex Marriage in Massachusetts

In my unending slap fight with a person(s?) who run
(try typing that all the time) I attempted to give a full explanation for a question posted and to my embarrassment I found out I was too long winded for the blogger comment section, so I had to leave it here in the form of an article, and since I thought arguments on this subject are worth sharing, here's the question I was asked:

"Let's start with the biggest hole and we will go from there."

That's not the question, but since it was said to me I thought it sounded fun to repeat! Call me juvenile... ;) OK, here's the question:

"Please cite your sources for the statement 'it was by court order which is just as compelling as legislatively enacted law.'Where is this stated John?? Who told you this, because it is completely and utterly wrong."

The Goodridge Decision clearly states that legislators were to be given the opportunity to create legislation that gives same sex couples the exact same right to marriage as heterosexual couples.

Having failed to do so in the provided 180 days given the decision went into effect without legislative action and same sex marriage licenses began to be issued at Midnight on May 17, 2004 at Cambridge city hall.

Here's a link to the Wikipedia article if you need to refresh yourself on the facts:

From page 128 of Goodridge we find the following:

"While the court, in interpreting a constitutional amendment, is not bound to accept either the views of a legislative commission studying and reporting on the amendment's likely effects, or of public commentary and debate contemporaneous with its passage..."

That spells out the fact that the court is the final say on these issues.

The decision even goes as far as to address what you have accused for so long:

"The 'time tested wisdom of the separation of powers' requires courts to avoid 'judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions.' Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539, 540 (1996), cert. denied, 520 U.S. 1131 (1997), quoting Commonwealth v. A Juvenile, 368 Mass. 580, 595 (1975)."

Now let's get into the State Constitution:

"Article III. The general court shall forever have full power and authority to erect and constitute judicatories and courts of record, or other courts, to be held in the name of the commonwealth, for the hearing, trying, and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes and things, whatsoever, arising or happening within the commonwealth, or between or concerning persons inhabiting, or residing, or brought within the same, whether the same be criminal or civil, or whether the said crimes be capital or not capital, and whether the said pleas be real, personal, or mixed; and for the awarding and making out of execution thereupon.

Article VII. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.

Article XLVIII.

I. Definition.

Legislative power shall continue to be vested in the general court; but the people reserve to themselves the popular initiative, which is the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection; and the popular referendum, which is the power of a specified number of voters to submit laws, enacted by the general court, to the people for their ratification or rejection.

II. Initiative Petitions.

Section 1. Contents. - An initiative petition shall set forth the full text of the constitutional amendment or law, hereinafter designated as the measure, which is proposed by the petition.

Section 2. Excluded Matters. - No measure that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal, recall or compensation of judges;

or to the reversal of a judicial decision;

or to the powers, creation or abolition of courts; or the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth; or that makes a specific appropriation of money from the treasury of the commonwealth, shall be proposed by an initiative petition; but if a law approved by the people is not repealed, the general court shall raise by taxation or otherwise and shall appropriate such money as may be necessary to carry such law into effect.

Neither the eighteenth amendment of the constitution, as approved and ratified to take effect on the first day of October in the year nineteen hundred and eighteen, nor this provision for its protection, shall be the subject of an initiative amendment.

No proposition inconsistent with any one of the following rights of the individual, as at present declared in the declaration of rights, shall be the subject of an initiative or referendum petition: The right to receive compensation for private property appropriated to public use; the right of access to and protection in courts of justice; the right of trial by jury; protection from unreasonable search, unreasonable bail and the law martial; freedom of the press; freedom of speech; freedom of elections; and the right of peaceable assembly.

No part of the constitution specifically excluding any matter from the operation of the popular initiative and referendum shall be the subject of an initiative petition; nor shall this section be the subject of such a petition.

The limitations on the legislative power of the general court in the constitution shall extend to the legislative power of the people as exercised hereunder."

Now I have gone through a great deal of trouble to cite you specific sources, your website is called "knowthyfacts", so let's see a retort fitting the answer I gave you with your sources equally cited. ;)

1 comment:

John said...

Kind of amusing actually. Fifth grade civics is all you need to understand.

Is he smarter than a fifth grader ?