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Catholic Legal Memo Warns that Finneran-Travaglini Won’t Protect Marriage 3/19/2004 Experts also say that current amendment would threaten religious liberty.
A team of pro-family legal experts has drafted a memo for the Massachusetts Catholic Conference that says the proposed Finneran-Travaglini state constitutional amendment will not protect marriage and will threaten religious liberty.
The combined House and Senate will convene again as a Constitutional Convention on March 29 through March 31 to take up the issue. The Finneran-Travaglini Amendment passed three procedural votes on March 11, but needs two more votes to finalize it, after which it would go to a convention in 2005, and if passed, on to the voters on the 2006 ballot.
The amendment’s text:
It being the public policy of this Commonwealth to protect the unique relationship of marriage, only the union of one man and one woman shall be valid or recognized as marriage in Massachusetts. Two persons of the same sex shall have the right to form a civil union if they meet the requirements set forth by law for marriage. Civil unions for same sex couples are established hereunder and shall provide entirely the same benefits, protections, rights and responsibilities that are afforded to couples married under Massachusetts law. All laws applicable to marriage shall also apply to civil unions.
The March 5 memo points out that the language establishing full civil unions identical to marriage contradicts the first sentence of the amendment, which mentions the “unique” legal status of marriage:
Thus, were the Finneran-Travaglini text to be adopted, the resolution of any question regarding the ‘unique’ status of marriage will be thrown back into the hands of a judicial system that is bound, through the recent decisions of its highest appellate court, to find that there is no rational justification for treating marriage as a relationship uniquely between one man and one woman.
The memo further notes that Finneran-Travaglini “erases the distinction between [married and same-sex couples] by depriving the Legislature of any authority to adapt legislation to reflect the different needs or biological realities of the two types of couples.”
The memo was drafted by Mary Ann Glendon, Harvard Law School; Dwight G. Duncan, Southern New England School of Law; Scott FitzGibbon, Boston College Law School; Thomas Kohler, Boston College Law School; Gerard Bradley, University of Notre Dame Law School; and Robert Destro, Columbus School of Law, Catholic University.
With regard to religious liberty, the memo says, the amendment:
[G]ives wide-ranging licenses to judges to enforce a new social norm on organizations touched by the law – which, as a practical matter, includes almost all organizations of any significance. Most significantly, churches and other religious organizations that fail to embrace civil unions as indistinct from marriage may be forced to retreat from their practices, or else face enormous legal pressure to change their views. … [R]eligious institutions could even be at risk of losing tax-exempt status, academic accreditation, and media licenses, and could face charges of violating human rights codes or hate speech laws.
"They ought to call it 'The Shell-Game Amendment,' said Jan LaRue, CWA's chief counsel. “It's tragic when this kind of wimpish compromise is foisted on the people of Massachusetts as the 'The Leadership Amendment.’ Marriage is at stake here and this worthless sop is the best they can do? On top of that, the civil union section discriminates against opposite-sex couples."
The Massachusetts Supreme Judicial Court ruled on November 18, 2003, that the state’s policy of issuing marriage licenses only to man-woman couples was unconstitutional and that there was no rational basis whatever for defining marriage as the union of the two sexes. The court gave the Legislature until May 17 to enact a change in the law to reflect the court’s ruling.
Homosexual couples are planning to obtain marriage licenses on May 17 unless the Legislature or the governor intervenes. As the Commonwealth’s chief executive, Gov. Mitt Romney (R) can issue an executive order prohibiting any clerk from issuing marriage licenses to unqualified couples.
This week, the administration was seeking to move the authority for issuing licenses from the Public Health Department to the Division of Motor Vehicles, which is more directly under the governor’s authority. This could make it easier for him to enforce any order against the issuing of marriage licenses to homosexuals.
Sandi Martinez, CWA’s Massachusetts state director, is urging people inside and outside Massachusetts to contact Massachusetts legislators and urge them to reject the Finneran-Travaglini Amendment and to seek splitting the amendment into two amendments, one of which would cleanly protect marriage. Another alternative would be adopting an amendment that protects marriage while giving the Legislature the authority at a later date to define and empower civil unions, keeping them out of the Constitution.
People are also urged to contact Gov. Romney and ask him to issue an order, regardless of what the Legislature does, to stop the issuance of marriage licenses to same-sex couples. Telephone: 617-725-4005; fax: 617-727-9725.
“No matter what the court said, the law has not changed,” Martinez noted.
To contact Massachusetts legislators, click here.
Robert Knight is director of CWA’s Culture & Family Institute. |
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