Wednesday, December 13, 2006

VOM Don't Need No States Rights

Sure enough, the VoteOnMarriage folk did file that federal suit either 1) to get more attention and raise funds or 2) in some wild hope that a U.S. District Court would claim jurisdiction over our legislature.

The press release from VOM and link to the PDF of the complaint is here. The suit went to the U.S. District Court seeking relief and damages for alleged wrongs which have yet to occur. That is, the Constitutional Convention (ConCon) recessed until January 2nd, the last day it could consider matters before it, including an amendment to ban further same-sex marriages here. While this procedural move may and likely will stop the amendment from advancing, that will not have occurred until the ConCon formally adjourns.

One may well ask how what seems clearly to be a state matter and one that has not yet happened be any concern to a federal court. The answer may well lie with the lawyers involved. They are from the Alliance Defense Fund. This Arizona-based group comprises right wing, fundamental-religious sorts. As they put it:
The Alliance Defense Fund directly litigates carefully chosen, strategic cases to protect the freedom of religion, guard the sanctity of human life, and preserve marriage and traditional family values.
Massachusetts is just the current place for ADF to make a statement. When it loses here, it continues with its other symbolic efforts.

We don't know yet where Ray Flynn went on this (might he have had a moment of clarity?), but the plaintiffs in this are VOM and 10 of the original signers of the petition for this amendment. The defendants are all 109 legislators who voted to recess the ConCon.

As VOM puts the case:
The causes of action are:
  • violation of plaintiffs' rights to free speech pursuant to the First Amendment to the U.S. Constitution;
  • violation of plaintiffs' rights to petition the government pursuant to the First Amendment to the U.S. Constitution;
  • violation of plaintiffs' fundamental rights to vote pursuant to the Fourteenth Amendment to the U.S. Constitution; and
  • violation of plaintiffs' rights to procedural due process pursuant to the Fourteenth Amendment to the U.S. Constitution. and co-plaintiffs ask the court to:

  • declare that the defendants have violated the US Constitution as stated in the four causes of action;
  • waive the defendants' ability to oppose the initiative in the 2006 constitutional convention and rule that the votes to recess on November 9 are to be counted as votes in favor of the amendment; and
  • force the defendants to refund to the money expended on the campaign, plus punitive damages in an amount determined by a jury.

"The arrogance of the legislators is why we seek punitive damages," (added Glen Lavy, ADF senior VP.)

From here, this looks like asking first for civil action against thought crimes. The suit also seems to ask the feds to take over several functions of state government. Where again is that arrogance to which Lavy refers?

At the very best, the U.S. court might tell them to take this up with the commonwealth courts. Oops, that legal action is already and also underway.

Do read the suit. Its assertions are very lightly supported and connected. They lead to some very dubious conclusions about how a federal court could have authority. They also make some stretches, for example "The Defendants' repeated acts of intentionally recessing the 2006 constitutional convention without a substantive vote constitutes a constructive adjournment of the same. This constructive adjournment is the equivalent of a failure to take final action on Plaintiffs initiative petition ..."

The suit also asserts that the spongy wording of the initiative section of the amended constitution gives the courts some power to compel the ConCon to act. Our own Supreme Judicial Court has never said it or any other court can do that. It's that messy separation of powers thing. Oh, drat.

The most tenuous portions strain to get the federal court to accept the suit. For example, "The First Amendment to the United States Constitution protects Plaintiffs' rights to free speech through the initiative petition process for purposes of effecting change in state government, government policy and/or state law." That is going from the general to the specific back to the general without legal basis. The suit has lot of that.

It's pretty damned flimsy and seems designed for maximum publicity and political return instead of hope for judgment.

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1 comment:

Anonymous said...

incredible that *they* are invoking the 14th amendment.

also, their 1st amendment rights abridged? have they not been harping openly about their views on marriage for years? did anyone stop them getting theirpetition out there and signed? it is so laughable.

i am wondering, when the concon adjourned a number of years ago without voting on a pro-choice amendment (do i remember that correctly?), what were the responses of the pro-lifers as recorded by the Globe, etc? i bet some of the players in that game are the self same as in this game. i bet they were extatic about the death-by-any-means of that amendment, and said so openly. would be nice to dig up such verbage round about now...