News & Commentary: Massachusetts Supremes Reject Challenge to Homosexual Marriage Ruling     5/14/2004
By Jerry Morgan, Esq.

Court denies that its Goodridge decision takes power away from Legislature.

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In Goodridge v. Department of Public Health, 13 Massachusetts state representatives filed a motion to intervene in order to challenge the jurisdiction of the Court’s November 18, 2003, ruling redefining marriage to include homosexuals. Jurisdiction is the authority to hear and decide a case.

The representatives wanted to delay enforcement of the decision, scheduled to begin on May 17, until resolution of the jurisdictional question. The Court denied the motion.

“This Court's rulings continue to show contempt for the Massachusetts Constitution, the Legislature and the people," said Jan LaRue, CWA's chief counsel. "Its unrelenting goal to create homosexual marriage despite the will of the Legislature and the people reigns supreme and gives further legitimacy to the effort to remove the responsible justices from the bench.”

A court’s jurisdiction to hear matters is determined by the state constitution. In fact, many states give jurisdiction over certain matters to the legislature instead of the courts. The court must have “jurisdiction” over the people involved as well as the subject matter, which in Goodridge is marriage.

Article V of the Massachusetts Constitution addresses jurisdiction pertaining to questions of marriage. It states, “[A]ll causes of marriage, divorce, and alimony . . . shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.” The Massachusetts Legislature, not the SJC, has jurisdiction over questions pertaining to marriage.

In its November 18 ruling, the Court held that the “common law” understanding of marriage as the union of a man and a woman in Massachusetts is unconstitutional. 440 Mass. 309 (2003). Therefore, according to the Court, the definition of marriage had to be broadened to include homosexual couples. Id. The Court redefined marriage as “the voluntary union of two persons as spouses, to the exclusion of all others.” Id. at 343.

With a definition so ambiguous, why can’t a brother and sister be married? A mother and son? Two brothers? To argue that Massachusetts has other laws that would prevent these situations, such as restricting relatives from marriage or age limitation, is of little consequence. After all, Massachusetts has always limited marriage to a man and a woman, but that didn’t stop the Court from doing exactly what it wanted.

Remember, the Massachusetts Constitution grants jurisdiction over “causes of marriage” to the legislature, not the courts. Yet, in Clintonesque fashion, the Court has the gall to say that this was not a case about marriage: “[T]he assertion that the court did not have subject matter jurisdiction is based on the erroneous premise that the case before us constituted a ‘cause of marriage, divorce, [or] alimony.’” [Emphasis added.]

Instead, the Court claims that it was merely deciding “a state constitutional issue,” thereby making the state constitution the subject matter. By doing so, it implicitly admits that it lacks jurisdiction over marriage.

Worse yet, the Court said the jurisdictional issue raised by the representatives is “untimely” and “was raised by others” in earlier litigation. However, challenges to jurisdiction may be raised at any time, and the Court failed to mention that it ignored the jurisdictional issue previously. Thus, the Court claims a right to hear any case on any subject as long as someone raises a constitutional challenge.

As Professor Dwight Duncan Southern New England School of Law said, “‘Marriage,’ it turns out, can mean anything or nothing at all. …Why have a written constitution, the ‘rule of law,’ or deference to judges, when they can act in such an arbitrary fashion?”

Jerry Morgan is a Christian attorney in Illinois who provides legal analyses for Concerned Women for America. He serves CWA as a volunteer.

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