Mass. AG says amendment, if passed, not constitutional

Mass. AG says amendment, if passed, not constitutional

I have to wonder whether Massachusetts Attorney General Martha Coakley understands the constitutional form of government or have all the liberal politicians in this state decided that the work of transforming society to their utopian vision is too important to trust to the hoi polloi?

Coakley said this weekend that if a constitutional amendment to protect the definition of marriage is passed she lead efforts to have it declared unconstitutional.

“I think we can easily anticipate that if the proposed amendment was successful, there would be protracted, hard-fought litigation about the constitutionality of such a provision,” she said in a speech at the annual dinner of the Massachusetts Lesbian & Gay Bar Association. “If that battle is necessary, you have my support.”

Now correct me if I’m wrong, but I always thought that a constitutional amendment, if enacted according to the provisions laid out in the constitution, is de facto constitutional since it is the constitution. That would be like declaring the First Amendment unconstitutional.

This is either naked political corruption by a politician who is promising to blatantly defy the will of the people and the rule of law or she’s simply so incompetent as to not know that a constitutional amendment is, by its nature, constitutional.

Perhaps Coakley plans to challenge the process by which the amendment is passed, which is also strange since it’s not passed yet. If she knows of funny business in the process so far, why hasn’t she brought a legal challenge? Or maybe she’s just anticipating finding a dishonest and politically convenient pretext on which to bring a challenge later.

Coakley is making a transparent political play to elevate her own profile and pander to a small minority of well-connected and deep-pocketed liberal elites. (Also keep in mind that the attorney general of Massachusetts is an elected, not appointed, constitutional officer.)

Boston College Law prof supports Coakley

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Written by
Domenico Bettinelli
8 comments
  • Dom,

    In Romer v. Evans, the United States Supreme Court said that Colorado could not amend their state constitution to prohibit local towns from enacting ordinances to prohibit discrimination based on sexual orientation. 

    The wikipedia article on the case is a sufficient summary:

    “An amendment to the Colorado Constitution that allows discrimination against homosexuals and prevents the state from protecting them violated equal protection under the Fourteenth Amendment, because it was not rationally related to a legitimate state interest, but instead was motivated by animus towards homosexuals. Supreme Court of Colorado affirmed.”

    In effect, the courts prohibited the Colorado Constitution from being amended because they thought that the amendment conflicted with the “Equal Protection” clause.  It conflicted, the court said, because it was motivated purely by animus. 

    Scalia, needless to say, was outraged with the decision.

    I’m not familiar with any other court case which held a state constitution could conflict with the federal one.  Obviously, the reasoning in Romer was weak (it was written by Kennedy), and in my opinion was a naked exercise of judicial authority.  Based on this experience, it seems that whenever conservatives try to amend a constitution to protect their values, the courts will overturn them as conflicting with the federal constitution.  Under current federalist theory, state constitutions can be more protective (aka: more liberal) than the federal one, but never more restrictive.

    The problem, ultimately, is thinking that any political victory will really happen through these sort of fights.  Don’t expect it.  The Judicial Branch really rules this country, and voters don’t matter.  And the Courts are quickly progressing on a one-way path to Hell, and there’s nothing we can do about it.

  • “This is either naked political corruption by a politician who is promising to blatantly defy the will of the people and the rule of law or she’s simply so incompetent…”

    No need to give us a choice of one OR the other…I would venture to guess this is both polically corrupt and incompetent.

    I’d feel sorry for you folks in Mass. but I reside in California.

  • It would be nice if the conservatives all around Massachusetts actually went to the polls and voted.  If everyone who claims to support marriage as one man-one woman stood up and was counted, I think we would see some changes.  Of course, if the Catholics in Massachusetts actually looked at the Democratic platform and voted according to their supposed beliefs, they would stop voting democrat.  (or in my opinion, DUMB-ocrat).  I don’t believe you can truly be both a democrat and a Catholic.

    My 2 cents. (or is it $2 in today’s world?)

    Christine

  • I suppose the AG would argue that the amendment to the Massachusetts constitution violates the federal constitution on some ground, or maybe that it was improperly drafted or adopted in some way. On points like this activist lawyers are mostly opportunistic and I don’t see why she’d be different. She could look at the amendment and its adoption in retrospect and use whatever arguments come to mind. The courts, including the US Supreme Court, would accept some argument or other if they like “gay rights” enough.

    It’s pretty unlikely the bishops would go after Minuskin. He can claim he’s basically just an expert giving his opinion on whether something would be legally valid. He can say that as an expert on the law he likes stuff that stands up legally and doesn’t undermine the principles of the legal system, and that’s why he said what he did. He’s not obligated to say that everything that violates Catholic social teaching is in fact legally invalid.

    That’s ridiculous, of course, because the law in this area is thoroughly political, ideological and religious. People, including judges, go for what they think at bottom is right. Still, all reputable public figures feel obligated to treat the law as determined by the courts with kid gloves. Treating the legal views of a law professor as the equivalent of a political platform would go against that.

  • Sydney: I hadn’t imagined the challenge on federal constitutional grounds, but I’ll admit that may be what she’s considering.

    I did consider that possibility, as I am aware of Romer and have vigorously denounced it here in my combox (post itself isn’t about it).

    But it makes no sense as an analogy. A federal challenge would require federal grounds. But (1) “Attorney General Martha Coakley” could not bring such a case (“private citizen Martha Coakley” could in principle, but probably not in fact since she is married); and (2) “private citizen Martha Coakley” could not marshall the Massachusetts state bureaucracy, as she promised. “Attorney General Martha Coakley” could do that, but she is sworn to uphold Massachusetts law, which would be in this hypothetical, the new constitutional amendment.

    Or maybe, what she’s saying is that she would make the state roll over, and not defend the amendment against a Romer-based federal-court challenge should gay activists choose to bring one. That would be truly cynical and spiteful, and grounds for either removal from office or the federal court refusing to hear the case.

  • Actually, there have been some noises in this Commonwealth at various points in time about dumping our “Know-Nothing”, anti-Catholic state constitutional amendments on Federal First Amendment grounds.  Not that they’ve gotten anywhere.  I’m sure that’s what Coakley has in mind, although on Equal Protection grounds.  If she were to succeed, it would be because the Federal courts have recognized a Constitutional right to same-sex marriage.  Let’s call that Roe v. Wade II; the uproar would be similar.  And maybe, just maybe, we’d get a Federal Marriage Amendment.

    Otherwise, it’s back to the REAL Dark Ages—the pagan ones.

  • Please pray for Rhode Island. The same-sex marriage/civil union vs protection of marriage issue is in our lap today, probably as i write. Beyond prayer there seems so little we can do against the emotional testimonies of the ss marriage petitioners. We write, no one publishes. We speak, no one listens. We need your prayers. I’m on way to mass to offer up my own powerless distress. Thank you.

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