Thursday, May 2, 2013

Massachusetts did radically change marriage.

I miss being a lawyer. I honestly believe one shouldn't take on the representation of clients, unless they can be full dedicated to the practice. Being a lawyer isn't a part-time job. So I've been in-active for a very long time.

It is amazing how application of the rule of law plays out in court.

CHARRON vs. AMARAL, 451 Mass. 767

This court concluded that a same-sex spouse could not pursue an action for loss of consortium of her injured spouse, where the couple were not married when the personal injury cause of action accrued, and where the change to the common-law meaning of civil marriage effected by Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003), applied prospectively. [772-773] MARSHALL, C.J., concurring, with whom COWIN and BOTSFORD, JJ., joined
And while when courts usually 'strike down' a law when it is unconstitutional, the Supreme Judicial Court didn't do that in Goodridge.
The court did not strike down the marriage statute; instead, it "refined the common-law meaning of [civil] marriage . . . to mean the voluntary union of two persons as spouses, to the exclusion of all others." Id. at 343. "[M]indful that [its] decision mark[ed] a change in the history of [the Commonwealth's] marriage law," the court stayed the entry of judgment of its decision "for 180 days to permit the Legislature to take such action as it may deem appropriate." Id. at 312, 344. "The purpose of the stay was to afford the Legislature an opportunity to conform the existing statutes to the provisions of the Goodridge decision." Opinions of the Justices, 440 Mass. 1201 , 1204 (2004).

As a student of law and an inactive member of the Massachusetts Bar, why didn't the Court just strike out all marriage laws? The Court really can't force the legislature make laws in accordance to their legal opinion. It isn't in the power of the Court, 'to order' the legislative branch to "conform" law to their opinion. It really can only say, yes or no to a law.

But then again, imagine if they stuck down all marriage laws. No one would married in the state of Massachusetts, no one could pull a marriage license, also no could get divorced All children would technically be born out of wedlock. Nothing could of happened without the state legislature rewriting the to laws that would conform to the Court's opinion. Yes, That would be radical.

As Goodridge recognized, where a change in law is so radical that the consequences of that change realistically require time for the Legislature to act, a court may make the remedy for unconstitutional laws prospective only. Id. at 312, 344, citing Michaud v. Sheriff of Essex County, 390 Mass. 523 , 535-536 (1983) (court mindful that it changed history of marriage law). It is obvious that Goodridge was intended to apply prospectively; thus, it is not necessary for us to address Kalish's contention that we should apply Goodridge retroactively.
While Chief Justice Marshall agrees with the Summary Judgement as properly ordered, she goes out of her way to state
The Goodridge decision did not change the nature of civil marriage in the Commonwealth; it made the laws of civil marriage accessible to a class of individuals who had been unconstitutionally barred from such access. The Legislature, we emphasized, retained its "broad discretion" to define and regulate the "protections, benefits, and obligations" of civil marriage. Goodridge, supra at 343-344. And our decision did not disturb the Commonwealth's strong public policy favoring a clearly defined, unambiguous legal status.
Pardon me, Chief Justice..... OK, how would I say this to the (Retired) Chief Justice of the Supreme Judicial Court of Massachusetts. Your Honor, You're are denial.

Civil laws regarding marriage today, ten years later after Goodridge, very much changed the nature and attitudes towards civil marriage. Today marriage's policy is viewed to have nothing to do with the community's public interest that a child is to be being raised by his or her own mother and father. Wasn't that an very important obligation of civil marriage?

The numbers of children not being raised by both their mother and father in an intact home are dramatically decreasing, as our value for the 'refined' version of civil marriage increases. Was this really a good thing for any society, even a progressively minded one in Massachusetts?

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