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Mass. legislators, ACLJ file challenge, saying court lacked jurisdiction

BOSTON (BP)–A pro-family group filed a legal challenge April 27 on behalf of a group of Massachusetts legislators, asserting that the state high court overstepped its constitutional jurisdiction when it issued its controversial same-sex “marriage” ruling.

It was the second time in a week that various pro-family groups have sought to stop or delay the ruling.

In the latest request, which spans 39 pages, the American Center for Law and Justice argues that under the state constitution the governor and legislature have authority over marriage laws. The request was filed on behalf of 13 state representatives.

The request asks the court to vacate its decision — in essence, declaring it void. But if the court declines to do that, then it should at least delay its ruling until the issue of which branch has jurisdiction in marriage law is resolved, the request states. The ruling is scheduled to take effect May 17.

For any request to succeed, one of the justices in the 4-3 majority must change his or her mind.

“Under the Massachusetts Constitution, no branch of government shall exercise the powers of either of the other two branches,” the request states. “… [T]his Court has unconstitutionally infringed on the Legislature’s jurisdiction as the sole authority empowered under the Constitution to transfer jurisdiction in all cases involving marriage.”

If the court’s ruling takes effect May 17, Massachusetts would become the first in the nation officially to recognize same-sex “marriage.” Some conservatives warn that it is the first step toward nationwide legalization.

“We’re simply asking the Massachusetts court to comply with what their constitution already says,” ACLJ Chief Counsel Jay Sekulow said on his radio program April 27. “… They have taken over the legislative function, which is not the role of the courts.

“Massachusetts is actually very specific about who controls these kinds of situations — who controls the issues of marriage — and that specifically is delegated to the legislature and the governor. So in our view the court drastically overstepped its bounds.”

Sekulow pointed to a section in the Massachusetts constitution stating: “All causes of marriage, divorce, alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.”

The request states that a “unilateral judicial implementation” would be a “constitutional affront to the Legislature, the Governor and the People of the Commonwealth.”

In March, Massachusetts legislators completed the first of a lengthy three-step process in passing a constitutional marriage amendment that would ban same-sex “marriage” while legalizing civil unions. Legislators must pass it once more during the next session before sending it to voters, which would be 2006 at the earliest.

Massachusetts Gov. Mitt Romney, a Republican, had wanted to ask the court to delay its ruling until citizens could vote but Attorney General Tom Reilly, a Democrat, refused. By law, Romney can be represented only by Reilly’s office.

Romney has filed emergency legislation that would give him the power to ask the court for a delay, but the bill appears doomed in the state Senate.

“We just, frankly, don’t know if that’s going to happen,” Sekulow said of the bill’s prospects in passage. “That’s why we decided at this time that we’re going to have to take legal action.”

Sekulow called the legal request “the last effort that I think legally that can be made.”

On April 20, four pro-family groups filed a request on behalf of C. Joseph Doyle, executive director of the Catholic Action League of Massachusetts, asking the court to stay its ruling until citizens could vote. The groups that filed the request for a delay were the Citizens for the Preservation of Constitutional Rights, Thomas More Law Center, Liberty Counsel and the American Family Association Center for Law and Policy.

The Massachusetts high court — called the Supreme Judicial Court — issued its pro-same-sex “marriage” ruling last November but stayed it for 180 days. That stay expires in May. In addition, the court issued an advisory opinion in February, saying that the legalization of Vermont-type civil unions would not meet the demands of its November ruling.

The legalization of same-sex “marriage” in Massachusetts is the first step in a two-prong effort by supporters to have it legalized nationwide. The second step involves suing in federal court to overturn the federal Defense of Marriage Act and have the Massachusetts licenses recognized elsewhere. The act was signed into law in 1996 and gives states the option of not recognizing another state’s same-sex “marriages.”
For more information about the national debate over same-sex “marriage,” visit

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  • Michael Foust