Massachusetts Initiative Process Stunts Gay Lobby
Monday, July 10, 2006
THE INITIAVE PROCESS IN MASSACHUSETS SKIRTS A CLOSE ONE: GAY LOBBY MUST FACE THE DEMOCRATIC PROCESS
Today, the Massachusetts Supreme Court ruled that the voteonmarriage.org initiative question limiting marriage to one man/one woman did not violate the Massachusetts Constitutional provision that initiative questions should not reverse judicial decisions.
http://www.socialaw.com/slip.htm?cid=16338&sid=120
Pick a Massachusetts state law. Any law. There is a 99% change that that statute affected the outcome if not outright determined the outcome of any given lawsuit. The stakes in Schuman v. Attorney General were nothing less than the very integrity of the initiative process since the exception would have swallowed the rule. Suppose you wanted to change the law so that motorcyclist didn’t have to wear helmets. Surely there is a case out there where someone was found guilty of acting criminally for not wearing one. If one could not change law—even constitutional law—because it was once used to decide the outcome of a case, there would be very little left subject matter eligible for an initiative petition save for the most innocuous and trivial of law not likely to be of public concern and that never made its way into the written cases. As a father’s rights activist and spokesperson of the Berkshire Fatherhood Coalition, I would like to put a binding question on whether there should be a rebuttable presumption of joint physical and legal custody (shared parenting). But under the standard Schuman (i.e., the position of the gay lobby) argued, since courts have actually decided cases based on a statute that says there is no such presumption, father’s rights activist could not actually put a question on the ballot. No doubt, had Goodridge gone the other way as it nearly did by one vote (and went the other way just recently in New York), the gay lobby would have wanted to be able to make a direct appeal to the people to institute gay marriage.
What was quite obvious purpose of the “no reversal of a judicial decision†clause is that the initiative process was not to reverse the specific outcome between specific litigants, as the Connecticut once did in the famous case of Calder v. Bull.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=3&invol=386
For a summary of the case, go here:
http://en.wikipedia.org/wiki/Calder_v._Bull
(The Calder v. Bull is famous for its discussion of natural law. One Justice famously supported the view that no law that violates natural law is valid. The Justice disagreed and said that it is only the positive laws of men that govern, and that while the principles of natural law seem fine and just, they are not discernable without debate among jurist.) In that Calder v. Bull (which had to do with a probated will) the Connecticut legislature (the “General Courtâ€) literally made the loser of a specific case a winner and the victor a loser. (It is hard for the modern to understand this, but this did happen. In fact, divorces in Massachusetts were to be settled by the “General Court,†i.e., the legislature, until there were to be delegated to some other court.) It is these types of Calder v. Bull actions—the outright change of winner and loser in a given lawsuit—that the ban on initiatives that change judicial determinations is directed. (The issue in that case was whether the changing of the outcome of a civil case violated the United States Constitutions ban on ex post facto laws—the court ruled that the ex post facto provision pertained only to criminal cases.)
More troubling are natural law arguments that whether gay should have the right to marry should be put to a vote because “basic civil rights should not be voted on.†But natural law has been largely rejected as a political philosophy and this case proves a classic example. There is large-scale disagreement whether the right to marry a same-sex couple constitutes a “fundamental civil right.†But even our most fundamental rights—such as the right to equal treatment under the law regardless of race as exhibited in Brown v. Board of Education—is the result of positive law voted on by men. As important as they are—the right to free speech, the right to freedom of religion, the right to be free of unreasonable searches and seizures—these noble rights derive from a political process.
God did not come down to earth and wave his magic wand and enact the 1st and 14th Amendment—men actually sat and voted on what the fundamental rights of men would be. The argument that gay marriage should be “above†this process is absurd because even less controversial and far more universally cherished rights were done through positive law enacted by elected individuals. That this change would result from the process of direct democracy (the direct initiative) instead of representative democracy (elected representatives representing the people) is a distinction without a difference. In the end, man must rule and determine what the law is. While it may be a lofty ideal that some rights are so important as to “rise above†the votes of the majority (though such sentiments have expressed in endless editorials), we have no other real way of determining just what is and just what is not a fundamental right. In the end, legally enforceable rights are written by men, and no right is above this process under our system of jurisprudence. As exalted as our Constitution is, is an instrument of positive law written and enacted by men—our rights derive through this process, not some sublime source as to what is “right.†This is not to say that natural rights do no exist, but rather they form no part the interpretation of our laws or are constitution because nobody could agree on what these natural rights—as this very questions makes particularly clear.
More troubling is a basic lawlessness within the law proffered by Justice Greaney and Ireland in their concurrence which goes like this:
“There is no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that purposefully discriminates against an oppressed and disfavored minority of our citizens in direct contravention of the principles of liberty and equality protected by art. 1 of the Massachusetts Declaration of Rights.â€
It is quite clear under law that specific constitutional provisions (as do laws) would override and trump any broad category of protection afforded in another constitutional provision. To strike down one specific constitutional provision as contrary to another more general one would raise serious questions whether the judiciary has in fact taken the role of the legislature in defiance of the Constitution, putting into question whether their conduct constitutes “good behavior†to which their term is expressly limited to. It is easy for the public to gloss over this, but it is extremely important that the judiciary not assume the role of the legislature—that is what happened in Goodridge and now a Supreme Court Justice is threatening to ignore the very plain words of a Constitution because it does not comply with their own notion of “fundamental rights†under natural law.
Hopefully, we have not obverted one constitutional crisis for yet another, for if a Justice ignores the plain terms of the Massachusetts Constitution (which one or two appears to be threatening to do), we would have nothing but chaos. It is difficult to find a substantive distinction between Justice Greaney’s statement in today’s decision and the statement of Justice Chase argued long ago in Calder, “An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.†Any differences in the statement are differences of form, not substance. Clear positive law would be ignored and rendered nugatory despite the lack of existence of a higher level of positive law to base that conclusion. In essence, we would have the naked acting of men on our bench, ignoring plain laws, simply because it offended their own sense of personal justice—not the words of the Constitution as interpreted and meant by those that wrote it.
One columnist in the Berkshire Eagle warned of powers being abused by the tyranny of the majority through the elected process. As Justice Iredell stated in Calder v. Bull, who wrote against the natural law approach to coming to judicial decisions advocated by Chase, “It is not sufficient to urge, that the power may be abused, for, such is the nature of all power, such is the tendency of every human institution: and, it might as fairly be said, that the power of taxation, which is only circumscribed by the discretion of the Body, in which it is vested, ought not to be granted, because the Legislature, disregarding its true objects, might, for visionary and useless projects, impose a tax to the amount of nineteen shillings in the pound. We must be content to limit power where we can, and where we cannot, consistently with its use, we must be content to repose a salutary confidence. It is our consolation that there never existed a Government, in ancient or modern times, more free from danger in this respect, than the Governments of America.†In the end, someone must rule and say what is the law. I believe it to be a good thing that we allow the people to change our law and our Constitution directly through the initiative process, but much more importantly, this is the system embodied in our organic law.
To those that believe gay marriage is “too fundamental and too important†to be voted on by men because they violate principles of human rights and natural justice, Justice Iredell would say, “The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject.†Gay marriage is a “fundamental civil right to some,†an abomination unto others, and to others, while not an abomination, poor public policy. While Justice Iredell never saw a day of the 19th century and lived when pure democratic governments were new to this world, it became obvious that man must rule and determine what is a right, and that the best form of rule of men was by the democratic process.
It is impossible to describe the enormity that would have arisen had the gay lobby prevailed today. Had they won in Schuman, as some editorial page writers suggested they should, the initiative process would have been a dead letter. This experiment of direct democracy would have been ripped right out of the Massachusetts Constitution and we would have been left again with a purely representative form of democracy. The people would have been dis-empowered to put matter of public concern on the ballot.
While it might not be immediate obvious to the general public, it is a great irony that an initiative petition process that was limited by an ability to change the judgment in a particular case as was done in Calder v. Bull, raises the same questions about natural law that is inherent in nature (or derived from God) versus positive law written by men. While gay activist would vehemently deny they are making natural law arguments, when they place gay marriage as someone being “above the fray†of the positive law of men, they are in fact making that very argument.
For more information, call Rinaldo Del Gallo at 413-443-3150.
Mr. Del Gallo is an attorney at law, candidate for Governor’s Council 8th District, and a fathers’ rights activist interested in brining an initiative question to the ballot.
About Rinaldo Del Gallo Rinaldo Del Gallo, III, Esq. is the spokesperson of the Berkshire Fatherhood Coalition, whose website is BerkshireFatherhood.com. He has been practicing family law attorney and has been a member of the Massachusetts bar since 1996. Mr. Del Gallo has handled a wide variety of family law cases including issues of child custody, child visitation, child support, restraining orders, grandparent visitation, contempt of family court, access to academic records, guardianship, allegations of abuse, criminal allegations related to domestic violence, disputes over the care of a child, and care and protection proceedings before the Department of Social Services. For years, he has hosted bi-monthly free legal seminars for people of any gender having problems in family court. On behalf of non-custodial parents, he has had made numerous media appearances in printed news, radio, and television. He has authored numerous family law related articles and columns. He has performed extensive bro bono work for fathers. Attorney Del Gallo also has extensive experience as a civil rights attorney, working in the areas of free speech rights and ballot access. Mr. Del Gallo is also an intellectual property attorney and a patent lawyer, and has written what is regarded as one of the most famous law reviews in the area of patent law, “Are Methods of Doing Business Finally Out of Business As A Statutory Exception?,†that helped end the so-called “business method exception,†which paved the way for an entire field of software and Internet related patents. Attorney Del Gallo graduated from Northeastern University (Boston) with a Bachelor of Science degree in Electrical Engineering, and graduated from George Washington University (Washington) in the top of his three-year class. | More from Rinaldo Del Gallo, III
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