- The Washington Times - Monday, November 29, 2004

The Supreme Court yesterday declined without comment to hear a case challenging Massachusetts’ new same-sex “marriage” law.

In the second defeat for the long-shot effort to get the justices to overturn the Massachusetts Supreme Judicial Court’s imposition of homosexual “marriage,” the U.S. Supreme Court refused to entertain the objection that defining marriage was a role for a state’s legislature and not its courts.

Both sides of the homosexual “marriage” debate agree that the issue likely will wind up before the Supreme Court again because dozens of fights in courts and legislatures on several fronts will continue because of :

• Homosexuals trying to win the right to “marry” by suing in federal and state courts.

• Liberal and homosexual advocacy groups suing to overturn some of the 13 state constitutional amendments passed during the 2004 election cycle.

• Activists fighting over a proposed federal constitutional amendment and similar amendments in more state legislatures, including Massachusetts.

The Supreme Court decision “highlights the need for an amendment to the United States Constitution protecting marriage and defining it as the union of one man and one woman,” said Mathew Staver, president of Liberty Counsel and attorney for plaintiffs Catholic Action League official Robert Largess and 11 Massachusetts lawmakers.

“Marriage will be defined by someone,” Mr. Staver said. “I would rather have it defined by the people of the United States instead of the judiciary.”

David Buckel, director of the Lambda Legal Marriage Project, said he and his colleagues were “not at all surprised that the U.S. Supreme Court declined to weigh in on” the Massachusetts law.

The Largess lawsuit was “a weak and misguided legal effort from right-wing anti-gay groups that never really stood much chance of being heard at the Supreme Court,” said Mr. Buckel, who is involved in a New Jersey lawsuit to legalize same-sex “marriage” in that state.

Lambda also is suing in three other states — California, New York and Washington — on behalf of homosexual couples who want to “marry.” Liberty Counsel is continuing the fight elsewhere, lobbying more than two dozen other states to pass amendments against homosexual “marriages.”

“We will see legal battles around marriage hashed out in state courts, state legislatures and in state referenda,” said Chai Feldblum, a civil rights law professor at Georgetown University.

Yesterday’s Supreme Court decision was the second time the court declined to get involved in the Massachusetts case.

In early May, days before the first legal licenses were to be issued for same-sex couples to “marry,” Mr. Largess and the 11 lawmakers filed their lawsuit asking federal courts to stop the process.

The Massachusetts Supreme Judicial Court usurped the role of the legislature when it unilaterally changed marriage law in the state, the plaintiffs argued.

Because federal courts must uphold the constitutional guarantee that the three branches of government will act within their assigned roles, a federal judge should temporarily stay the same-sex “marriage” process and determine whether the Massachusetts high court had the right to redefine state marriage laws, they argued.

Federal judges in local and appellate courts declined to issue an emergency stay, and Supreme Court Justice David H. Souter, who handles emergency appeals from the 1st U.S. Circuit Court of Appeals in Boston, declined to accept the case. This allowed the same-sex “marriages” to proceed effective May 17.

The 1st U.S. Circuit Court of Appeals, however, held a hearing on the case. It ruled in June that the appropriate way to contest the outcome of a state court case was to change the state constitution. The appellate court also said the Massachusetts high court ruling did not violate the U.S. Constitution.

Mr. Largess and the 11 lawmakers appealed to the Supreme Court, saying in court papers that the Constitution should “protect the citizens of Massachusetts from their own state supreme court’s usurpation of power.”

Merita Hopkins, a city attorney in Boston, told justices in court papers that the plaintiffs had not shown they suffered an injury and could not bring a challenge to the Supreme Court. “Deeply felt interest in the outcome of a case does not constitute an actual injury,” she said.

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