The rule of law in Massachusetts

During the past week, the new Attorney General of the

Commonwealth

of

Massachusetts

, Martha Coakley, was the keynote speaker [speech HERE] at the 22^nd annual dinner of the Massachusetts Lesbian and Gay Bar Association. Her office issued a press release [HERE] that confirmed her disposition to challenge the constitution of the Commonwealth that she solemnly swore she would support when she professed the oath of office required of her under Article VI of the

Massachusetts

constitution. Incidentally, the oath states: “I, A.B., do solemnly sear, that I will bear true faith and allegiance to the

Commonwealth

of

Massachusetts

, and will support the constitution thereof. So help me God.” To assure her audience of her position, General Coakley stated in her address: “I think we can easily anticipate that if the proposed amendment was [sic] successful, there would be protracted, hard-fought litigation about the constitutionality of such a provision. If that battle is necessary, you have my support.”

This is a remarkable claim. Assuming that the constitutional provisions for amending the constitution are followed (and there is no credible evidence to the contrary), the marriage amendment that General Coakley opposes would be part of the constitution, the document she swore she would uphold. While she confirmed in her speech that she is “charged with the responsibility for upholding the law,” she unambiguously indicated that there are certain laws, namely a constitutional amendment with which she disagrees, that she will not uphold—in fact, she will defy it through litigation. This proposed course of action would lead her to violate her sworn oath. Moreover, this defiance of the constitution would derogate the rule of law. In support of her argument, she referred to dicta of two of the justices of the

Supreme Judicial Court

who opined in the Goodridge case that the decision to recognize same-sex marriage “may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative…” (The italics are mine.) But what if this assertion in Goodridg is wrong and there is a rational basis supporting the definition of marriage as the exclusive union of one man and one woman? Court majorities have been wrong in the past, and there is no reason to conclude, in spite of General Coakley’s assertion, that Goodridge is irreversible considering this context.

General Coakley provides the interested citizen with further insight into her jurisprudential views in her commentary that “hard won protection of civil rights can never be taken for granted.” In elaboration of her point, she referred to the recent decision in Gonzales v. Carhart as “a challenge to choice rights ensured under Roe v. Wade.” But what if Roe is wrong? A mistaken decision cannot ensure the prolongation of error that the rule of law must oppose. It would appear that for General Coakley there are only certain understandings about the law that she is sworn to uphold. It would also seem that other understandings about the law that are unacceptable to her may be surrendered without compromising the integrity of the rule of law.

The

Boston

Globe’s Megan Woolhouse reported on General Coakley’s speech in its May 12 edition. In her article [HERE], Ms. Woolhouse quoted on several occasions a law professor at

Boston

College

Law

School

who thought that General Coakley’s remarks were “wonderful.” Ms. Woolhouse noted that this professor somehow relied on

Boston

College

Law

School

’s being “rooted in Catholic Jesuit tradition” to support and justify his position supportive of General Coakley. As a Catholic and Jesuit, I cannot endorse the Catholic-Jesuit connection that the professor who was quoted attempted to make. Moreover, I think he joins General Coakley in the pursuit of goal that does little to enhance the rule of law but does much to destabilize it. Her approach to the law reflects the caprice of the positivist mind rather than the transcendent and objective moral order essential to Catholic legal theory.   RJA sj