Motion to be filed on behalf of Ray Flynn and Thomas ShieldsBOSTON – A Boston attorney, the Alliance Defense Fund, and the Law and Liberty Institute plan to file a motion to intervene Tuesday on behalf of two noted Massachusetts citizens in
Goodridge v. Department of Public Health. They are asking a Superior Court judge to dismiss the case.
The intervenors are Ray Flynn, former U.S. Ambassador to the Vatican and mayor of Boston from 1984 to 1993; and Thomas A. Shields, a North Shore businessman. They are represented by Boston attorney Phil Moran, David R. Langdon of Law & Liberty Institute, and the Alliance Defense Fund.
According to the motion, the November 18, 2003 Goodridge opinion of the Supreme Judicial Court (SJC), "effectively amended the (Massachusetts) Constitution."
Goodridge, decided last fall by the Massachusetts Supreme Judicial Court, redefined the term "marriage." The high court returned the case to Superior Court December 16, 2003.
In the
Goodridge opinion the SJC called its construction of marriage a "reformulation" of marriage. However, the term "marriage" is in the Massachusetts Constitution, and the authority to amend the Constitution resides only in the people of Massachusetts, not in the courts or any other branch of government.
"No party in this lawsuit discussed the issue of jurisdiction before the court. Only the people, not the courts can amend the state Constitution. It’s certainly not too late to raise it now," said Benjamin Bull, chief counsel for the Alliance Defense Fund. "At no point during the progress of litigation is it too late to consider whether there is absence of authority to proceed."
Because the
Goodridge decision is tantamount to an amendment to the Massachusetts Constitution, the Superior Court judge may grant the motion, dismiss the case, and make the
Goodridge opinion inoperative. As the motion points out, backdoor constitutional amendments such as the
Goodridge decision have been condemned in other opinions by the SJC.
"If the court rules against the motion to dismiss, the Massachusetts Constitution will have become the instrument of judicial whim and tyranny, and not the democratic bulwark it once was," Bull said. "This is one of the many reasons that the people who wrote the Constitution of Massachusetts placed the power to amend the Constitution in the hands of the people, and not in the hands of judges."
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