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Massachusetts Alternatives
Mending the mistake without amending the federal Constitution.


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Supporters of traditional marriage are in a fix. President Bush warns that if four judicially activist Massachusetts judges persist in foisting same-sex marriage, not only on Massachusetts but–by migration–on the nation as a whole, he may have no choice but to seek a federal constitutional amendment. But centralizing marriage under federal law is surely unpalatable for anyone who champions both marriage and state authority.

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Like many Americans who understand the significant role played by both a mother and a father within a marital union and in the raising of children, President Bush has been hoping for Massachusetts to resolve this matter on its own. Unfortunately, it doesn’t look promising.

Last week, the narrow majority of the state’s Supreme Judicial Court reaffirmed that when they okayed “same-sex marriage” last December, they meant it. For this handful of judges–a cadre willing to disregard the limits of their office, defy accepted methods of constitutional reasoning, and ignore the wishes of their own state’s people as reflected in law–no vaguely named “civil union,” even with the same legal rights and benefits of marriage, would do. It’s just as well; it is far saner to follow the example of the Ohio legislature, which not only recently became the 38th state to explicitly ban same-sex marriage, but also, with more clarity than most, limited the availability of state benefits to husbands and wives. States need not subsidize qualitatively different relationships identically.

Is there any hope that Massachusetts can right the wayward thinking of its judges? The governor wants to amend the state constitution, but the process for doing it is apparently so cumbersome that he cannot get the issue to state voters before 2006. There will be Massachusetts licensees throughout the country by then. No doubt the governor’s lawyers will attempt to have the court’s judicial lawmaking stayed pending the vote, but such restraint is unlikely from judges who have declared the created reality of men and women–not to mention millennia of marriage law–to be irrational.

One overlooked possibility is for the commonwealth to temporarily get out of the new marriage business altogether. Since the thrust of the court’s reasoning hinges on a finding of presumed equality, the state can satisfy that standard by offering civil marriage indiscriminately to all or to none. In this regard, one of the dissenting justices noted that the majority conceded that the legislature could simply abolish civil marriage.

This wouldn’t necessarily be burning the village to save it. Massachusetts couples could marry under civil authority in another state without a residency requirement. And religious couples could then return to Massachusetts for the union to be blessed in a church, mosque, or synagogue as normal. As a matter of theology, the significance of a religious marriage is independent of civil statute. Under Catholic canon law, for example, the validity of the marriage is unrelated to civil license altogether. To the extent churches are legally obliged to coordinate with public authority, religious ministers may simply rely on the civil validity of an out-of-state marriage.

A moratorium would, of course, cause some inconvenience, but the annoyance might help focus the political attention of the Massachusetts electorate. It may even lead some to contemplate yet another option–removing the misbehaving judges. The Massachusetts constitution provides at least two methods for removal. In a procedure that parallels the federal Constitution, a judge may be impeached by the House, tried in the Senate, and removed upon conviction. The grounds for removal in Massachusetts are textually broader than under federal law, and include not only misconduct of the high-crime-or-misdemeanor variety, but also “maladministration.”

Interestingly, Massachusetts judges are also subject to removal under a procedure known as a bill of address. The Massachusetts legislature can remove renegade judges from office by a simple majority in both legislative chambers with the concurrence of the governor and his advisory council. Under the bill of address, the legislative and executive branches need not specify the grounds of removal at all. The ancient right is traceable to the 1700 Act of Settlement with the English monarchs, William and Mary, and its purpose was to ensure the accountability of public officers without subjecting them to removal at the pleasure of the Crown.

Ordinarily, prudence would counsel against removing a judge by whatever means necessary in order to reverse a single decision; but a ruling that so completely ignores the words of its own state constitution, which stipulates that “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,” may be the exception.

Douglas W. Kmiec and Mark S. Scarberry are professors of law at Pepperdine University. Kmiec was also constitutional legal counsel to Presidents Reagan and George H. W. Bush.



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