Massachusetts Supreme Court Planning New Type of ‘Relationship’ to Replace ‘Failed’ Institution of Marriage

By MassNews Staff
April 2003 Print Edition

The Supreme Judicial Court is planning a new type of relationship to replace our present form of "marriage" and "families." The plan would happen within the next few months in response to the gay marriage lawsuit.

Instead of mothers and fathers, the Court will introduce us to "partners," where children will be ancillary to the desire for everyone to have a "partner" or "partners" because "marriage," the judges say, is a failed institution.

Their plan becomes quickly apparent as one analyzes a transcript of what took place at the oral argument on Monday, March 3, in the case of Goodridge v. Dept. of Health, wherein seven gay couples are seeking to get married.

The historic announcement from the Court will come in the next few months unless something causes them to change this plan.

Some believe the judges will change if they sense that it could be a disaster for them personally or for the Court.

The Chief Justice, Margaret Marshall, is the unapologetic leader in changing the definition of marriage. She constantly harassed the lawyer, Asst. Attorney General Judith Yogman, who was arguing against the homosexual plaintiffs.

Marshall first began interrupting Yogman after she had been talking for only 8 seconds in the 15-minute period that she was apparently assigned to present her case. Justice Marshall consumed 56% of Yogman's time, not allowing the attorney to present her argument or other Justices to ask questions. At the end, when Yogman requested an additional 30-seconds so she could finish a portion of what she had tried to say, Marshall snapped, "I'm afraid your time is up." Yogman politely responded, "Thank you." The Court Officer commanded, "All rise" and the Justices left the courtroom.

Marshall had just finished telling Yogman she could have "a few minutes" to sum-up, but then she closed down the charade after the attorney had spoken for 28 seconds.

Justice John Greaney joined Marshall as the most vocal supporter of this revolutionary change in the society of our state and the entire country.

The case is before the Court because the gays are appealing a ruling of Superior Court Judge Thomas E. Connolly who dismissed their lawsuit on May 2, 2002, saying it is the Legislature which should resolve this question. The trial judge ended his 17-page opinion with this sentence: "While this Court understands the plaintiffs' efforts to be married, they should pursue their quest on Beacon Hill." Instead, the plaintiffs appealed his decision, as expected, to the Supreme Judicial Court, where they have many friends.

Marshall's intent became clear when she questioned Atty. Yogman about why marriage was established in the first place. Marshall denied that marriage was established to protect children. She believes that marriage is about "property."

"Let's go back to the original marriage acts where I think it would be a stretch to say it was for procreation," Marshall intoned at Yogman, who continued to remain civil. "One way to look at it is that marriage is always a property relationship and if there were offspring, certain properties follow as a consequence, certain rights, certain obligations towards the offspring. If, in fact, there were offspring outside marriage, outside marriage, they were dealt differently. What the Commonwealth seems to be saying, and it's not unreasonable, is that you have cut off the first piece of the history and picked up just at the procreation point."

But Atty. Yogman could not let that pass and retorted: "No, Your Honor. Although the concept of marriage has changed, it hasn't changed to be purely an economic partnership. It's still based fundamentally . . ."

At which the Chief Justice interrupted: "No, no. I'm not suggesting it's only an economic partnership, but one of the original bases was to recognize that two people in a certain kind of union brought with them certain economic benefits to that, and if there were offspring as a consequence of that union, that the benefits flowed in a particular way."

But Yogman could not agree to that. "I beg to differ. I think it was the other way around, that the reason that economic benefits are conferred on married couples is to encourage this setting for procreation and childrearing. It's not the other way around."

To which Marshall responded, "It's part and parcel of the same thing, correct?"

The Asst. Attorney General attempted to conciliate with this powerful figure, while keeping her strong position. "Well, the benefits that flow from marriage, that the state has attached to marriage are because the state wants to encourage this model of marriage where there are one parent of each sex and the legislature might conceivably believe still today that that is an optimal setting for procreation and childrearing."

Justice Greaney joined Marshall by asking Yogman to "reconcile" the "paradox" that the SJC has created. "The state acknowledges," said Greaney, "that same sex couples with children, who are permitted, obviously, to adopt children under the Tammy decision constitute a family, but they don't constitute a family for purposes of being married? Are those ideas somewhat at odds?" (The Tammy decision came from the SJC in 1993.)

Atty. Yogman replied: "Not at all, Your Honor. The idea that same-sex couples can adopt on a case-by-case basis is not at all inconsistent with the idea for the legislature or the Court to say that they're required to permit marriage. Adoption is one thing, marriage has many other responsibilities and benefits associated with it other than child rearing."

But Greaney warmed to his attack on marriage. "You would agree with me, however, that there is no firm definition of family. There is the idea of family, according to our decisions and other thinking that's gone far beyond the notion of two heterosexual people married, having children?"

Yogman valiantly fought these people who are supposed to be entitled to respect. "That's correct, Your Honor, but there's never been a suggestion that there was a constitutional right to that. To the contrary, the Court said that while foster parents share a lot of the attributes of a family, there is no fundamental right of foster parents to adopt. They have said that while some of the interests associated . . . "

At that point, Margaret Marshall was unable to contain herself. "That's an interesting distinction because we haven't said that everybody has a right to adopt." When the Assistant Attorney General quickly agreed, Marshall continued: "But we have said that a group of people that hithertofore were not permitted to adopt are permitted to adopt."

Yogman countered that that did not involve the Constitution. "But that was by interpreting a statute. The Court didn't suggest that that was constitutionally required and other Courts that have considered it have said . . ."

But the Chief Justice interrupted again. "No, and it is a position that was interpreted by this Court and has not been changed in any respect by the Legislature."

The Assistant Attorney General stood her ground. "That's correct. But adoption, again, is something very different than marriage. There is nothing - and, in fact, the plaintiffs in this case have all the benefits associated with childrearing. They all are the adoptive or natural parents of their children and so the issue of the right to control the upbringing of the children is not an issue in this case because they have all the rights of parents and the children have all the rights of children."

At this point, an unidentified male Justice took the attack. "What would you identify as the top - the most important reasons for the state justification for excluding these kinds of marriages?"

To which Yogman responded. "The most important justification is that limiting marriage to opposite-sex couples furthers this state's interest in fostering the link between marriage and procreation."

A male voice then asked: "How - let me interrupt you for just one moment. How would prohibiting same-sex couples from getting married further that link between marriage and procreation?"

The answer came back: "Marriage, procreation and childrearing. They are all related and same - the idea of the Legislature could conceivably believe - this is what I believe is the strongest argument. The Legislature could conceivably believe that encouraging same-sex couples to marry would not be a beneficial thing in terms of childrearing."

But the unidentified male responded with a ridiculous nonsequitor: "Because they would not be available to marry people of the opposite sex?"

Attorney Yogman hastened to straighten out this confused Justice. "No. No, not at all. No. Because the Legislature could conceivably believe that an optimal setting for childrearing and procreation is a family where there are one parent of each sex because mothers and fathers, the Legislature could believe, and there is literature to support it, that mothers and fathers each make unique contributions to the upbringing of a child. Just as this court said in Blixt, there is a possibility that children would benefit from having a parent of each sex. It's possible that many children do very well with a parent of one sex, but nevertheless the court said . . ."

But Yogman was interrupted by Margaret Marshall yet again. "Ms. Yogman, I well understand the argument. When you link marriage, procreation and childrearing and say that the legislature could well believe that optimal setting is with heterosexual two parents - to what extent does recognizing that single-sex couples, as in Tammy [the 1993 SJC case], which the Legislature has not sought to amend in any way, is not a powerful recognition that childrearing in fact with single-sex couples is optimal for certain children?"

The attorney repeated Marshall's words back to her. "'For certain children.' That's the difference, Your Honor. Adoption is on a case-by-case basis. Every family . . ."

But Marshall was not going to allow Yogman to talk. The lawyer was too good and was making serious inroads into Marshall's arguments. "I understand, but if you make the link between marriage, procreation and childrearing, what you are saying is when you go backwards you make the case for childrearing, procreation, but not for marriage."
Yogman attempted to explain. "I'm saying across-the-board and that's the difference between marriage and adoption. Marriage, if it's permitted, would be for any same-sex couple and then . . ."

But she was interrupted again by Marshall. "The State is free to say, for example, after a heterosexual couple has been married for ten years and has produced no children, unless there is evidence that both parents are infertile that they should be divorced so that the other parent - so the parents can be free to marry to try and procreate with another couple?
The attorney responded, "No, Your Honor. First of all, for the state to draw the line that way would be an impermissible intrusion into the private lives of the people involved."

The name of the case is: Goodridge v. Dept. of Public Health, No. 08860.

Sidebar:
Only Two People Allowed to Address Judges about Gay Marriage; Total Time of 37 Minutes and 11 Seconds Allotted; Further Discussion and Voting Will Be in Secret

The seven lawyer/judges have allowed only two people, both lawyers, to address them for a total of 37 minutes and 11 seconds in this lawsuit about gay marriage. (That is not an exaggeration. When one asked for 30 additional seconds, Margaret Marshall stopped her immediately.)

Unlike Congress and Beacon Hill where weeks, months or years of testimony is heard from dozens or hundreds of witnesses, many of whom are just plain people, such as professors, economists, psychologists, medical doctors, mothers, school teachers, rabbis, farmers, fathers, priests, sociologists, lawyers (who are not judges), executives, ministers, whites, blacks, Hispanics, Asians, etc., etc., before a court decides a complex issue like this. That is because courts are not designed to be a legislature and have never tried to take that role until recent years.

Unlike Congress and Beacon Hill, everything other than those 37-plus minutes will be debated and decided totally in secret. Unlike the "open-meeting" laws which the judges apply to our cities and towns with great determination, they believe there is no need for us to know anything about their discussions behind closed doors.

They permit some people to submit a "Friend of the Court" brief, also known as an "amicus brief," but no one ever knows if the lawyer/judges read them. In order to file such a brief you cannot be poor, because you must hire a lawyer to understand the intricacies of what color the cover of the brief must be, etc., etc.

If the citizens of Massachusetts wish to make this historic change, they should do so. But it should be their choice, and everyone will then accept it. It should not be accomplished in secret by seven lawyers because that will surely rent this state apart.