A federal appeals court yesterday rejected arguments that the Massachusetts Supreme Judicial Court usurped power from other branches of government when it ruled that homosexual couples must be allowed to “marry” in that state.
The 1st U.S. Circuit Court of Appeals in Boston ruled yesterday that the Nov. 18 Goodridge decision by the Massachusetts high court did not violate the Guarantee Clause in the U.S. Constitution, which calls for a republican form of government in each state.
The proper way to contest a state court ruling such as Goodridge, the appeals court said, is to change the state constitution.
Massachusetts lawmakers have started such a constitutional process, although a public vote on changing the constitution cannot be held before 2006.
The ruling yesterday was the latest victory for the Gay and Lesbian Advocates and Defenders (GLAD) of Boston, which won the Goodridge case.
“We were confident that this attempt by our opponents to block marriage for gay and lesbian couples would fail,” GLAD lawyer Mary Bonauto said yesterday.
Arguments that the high court didn’t have the authority to legalize same-sex “marriage” had “no merit before May 17 and it has no merit after May 17,” she said, referring to the day Goodridge went into effect.
Mat Staver, president of Liberty Counsel, who represented the 11 lawmakers and Boston citizen Robert Largess in the lawsuit, said yesterday that they would appeal to the U.S. Supreme Court.
It is “vitally important” that the separation-of-powers principle is upheld in Massachusetts, Mr. Staver said. “The republican representative form of government must be restored so the people can have a chance to define marriage, instead of having the decision foisted upon them by the Massachusetts judiciary.”
According to a Boston Globe survey, conducted during the week of May 17, at least 2,500 same-sex couples “married,” including 164 from out of state.
The licenses to out-of-state couples have sparked another legal battle.
Massachusetts Gov. Mitt Romney, backed by state Attorney General Tom Reilly, told town clerks that they must not issue licenses to nonresident same-sex couples because a 1913 residency law says nonresidents cannot be married in Massachusetts if they cannot be married in their home states.
No other state recognizes same-sex “marriage.”
On June 17, GLAD and the American Civil Liberties Union filed lawsuits challenging the 1913 law on behalf of eight out-of-state homosexual couples and 12 municipal clerks.
“We believe [the 1913 law] violates both the liberty and equality provisions of the Massachusetts Constitution,” Miss Bonauto said. “Plainly stated, the constitution trumps [the 1913 law] under the Goodridge decision,” she said.
“The 1913 law is a law we vigorously enforce, as we do all the laws of the commonwealth that I know of,” Mr. Romney said a few days later at the Heritage Foundation, where he spoke after a Senate appearance.
Mr. Reilly “will defend that  law,” the governor added.
A hearing on the case is scheduled for July 13 with Suffolk County Superior Court Judge Carol Ball.