A bipartisan group of Massachusetts lawmakers yesterday filed a lawsuit challenging the authority of the state’s highest court to legalize same-sex “marriage” through its rulings.
The Massachusetts Constitution “clearly states that marriage is the purview of the legislature and the governor, not the purview of the Supreme Judicial Court,” said state Rep. Philip Travis, a Democrat and one of 13 House members involved in the suit.
The lawsuit asks the state’s supreme court “to vacate” its Nov. 18 judgment in Goodridge v. Department of Public Health, which said the state constitution protects the right of homosexuals to “marry.”
The lawsuit was filed with the high court by the American Center for Law and Justice (ACLJ).
Mr. Travis said yesterday it would be “common sense” for the court to at least continue its stay of the Goodridge decision beyond May 17, when it currently expires.
Extending the stay would give the justices, who ruled 4-3 in Goodridge, “sufficient time to do full justice to our appeal,” he said.
Any delay in issuing the marriage licenses would be a psychological blow to homosexual couples and activists, who have been eagerly planning May weddings and otherwise anticipating the unprecedented legal marital status.
Mary Bonauto, an attorney with Gay & Lesbian Advocates and Defenders in Boston, which won the Goodridge case, said yesterday that the lawmakers’ lawsuit didn’t break new ground.
“This is the fourth time this [jurisdictional] argument has been tried in court … so I think the court has been well aware of this issue,” she said.
Courts have “always had the power to review legislation and rule if it crosses the wrong line or denies people basic rights, which is exactly what happened in Goodridge,” Miss Bonauto said. In addition, case law shows that the high court has “the power to review the constitutionality of statutes, including statutes of marriage,” she added.
The 13 lawmakers’ claims stem from a section in the Massachusetts Constitution that says: “All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.”
This means that “authority concerning the issue of marriage rests with the governor and/or legislature … not the Supreme Judicial Court,” said Vincent McCarthy, senior counsel of the District-based ACLJ.
A spokeswoman for Republican Gov. Mitt Romney said yesterday that he is not involved with the lawmakers’ lawsuit. Instead, he is still seeking legislative approval to go before the high court and ask for a stay of the Goodridge decision until there’s a public vote on a constitutional marriage amendment.
Mr. Romney’s emergency legislation, introduced April 15, is still awaiting admission by the state Senate.
Mr. Romney is also sending letters to the other 49 states, explaining that unless they tell his office they recognize same-sex “marriage,” Massachusetts clerks will not be allowed to issue licenses to same-sex couples from their states.