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Will it work?

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Posted: 5/7/2004

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The clock is ticking. May 17 is a little more than a week away. On that day, marriage licenses will begin to be issued to same-sex couples, even after the Massachusetts Legislature initiated the process to amend the state constitution to define marriage as the union of one man and one woman.

The last minute efforts by Gov. Mitt Romney to seek a delay of the Supreme Judicial Court’s (SJC) decision to redefine marriage in Massachusetts have been stifled. Attorney General Thomas F. Reilly shamefully denied the governor’s request to seek a stay of the SJC’s decision until the constitutional process could be completed. In Reilly’s opinion, the justices had “made up their minds,” and there was insufficient legal justification for any further action.

A subsequent effort by the governor to appoint a special counsel to bypass the attorney general and make the request to the SJC got the cold shoulder from Senate President Robert Travaglini, who indicated the lack of “appetite” for such a measure in the State Senate.

The most promising attempt to prevent the chaos that would follow if the state constitution were finally amended in 2006 to define marriage as the union of a man and a woman came when a group of 13 legislators filed a motion April 27 arguing that the court should not have heard the Goodridge case in the first place on the grounds that it lacked jurisdiction in the case.

The motion revolves around an article in the Massachusetts Constitution that reads, “All causes of marriage, divorce and alimony, all appeals from the judges of probate courts shall be heard and determined by the Governor and Council, until the Legislature shall, by law, make other provisions.”

Their argument has merit. Redefining marriage is most certainly a “cause of marriage,” and, unlike the case of divorce, no law has been enacted in Massachusetts giving the judiciary the authority to hear and determine the definition of marriage.

The SJC has not dealt with the jurisdictional argument to date. Despite the fact that the issue was raised in an amicus brief signed by the Massachusetts Catholic Conference, the court never responded to it. If they fail to do so before May 17, every marriage license issued to a same-sex couple will be subject to legal challenge. The court cannot continue to ignore this objection. If it truly feels it had proper jurisdiction in the case it should rule on the issue immediately.