Equal Marriage Opponents Serve Legislators With Frivolous Federal Lawsuit
On the Constitution's Speech and Debate Provisions
In their zeal to deny fair play to same sex couples, opponents of same sex marriage have brought an action in the United States District Court that asks a Federal judge to order the members of the Massachusetts Legislature to place on the ballot a proposal to amend the state constitution by inserting in it a provision that prohibits same sex marriage.
The lawsuit also demands unspecified damages from the members of the Legislature.
The complaining parties chose the holiday season – this week – to serve legal process on the members of the Legislature. Press reports indicate that the supporters of the amendment are planning to file complaints with the Massachusetts Board of Bar Overseers against legislators who are attorneys charging them with professional misconduct.
This reprehensible conduct by opponents of same sex marriage can have no purpose other than to intimidate the members of the Legislature and their families; i.e., an attempt to bully them.
It is well known that a member of a duly constituted legislature is protected from legal action based on what the legislator does in her or his official capacity. Just as the speech or debate clause in the United States Constitution (Art I, § 6) protects Senators or Representatives from civil suits, Eastland v. United States Servicemen’s Fund, 421 U.S. 401, 502 (1975), the decisions of the United States Supreme Court make it absolutely clear that state legislators enjoy immunity from federal civil rights actions so that they may perform their duties independently, without fear of law suits or interference by the federal courts. Tenney v. Brandhove, 341 U.S. 367 (1951)(state legislators may not be sued for damages); Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719 (1980)(immunity from injunctive relief). The principle of legislative immunity appears in the Massachusetts Constitution in Part the First, Art. XXI: "The freedom of deliberation speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever." That constitutional provisiion protects a legislator against legal action for anything "said or done as a representative." Coffin v. Coffin, 4 Mass. 27 (1808).
In a nutshell, the lawsuit against the legislators, as it violates specific provisions in both state and federal constitutions as well as the general principle of separation of powers, hasn’t a shred of merit. Also in this very week, the Supreme Judicial Court of Massachusetts ruled unanimously that the separation of powers constrained it from telling the Legislature that it must act in regard to the anti-same sex marriage measure. It is a delicious irony that the same people who lament judicial activism ask a United States Court to tell the Massachusetts Legislature what to do.
The members of the Massachusetts Legislature need not feel intimidated.
Signed:
Rudolph Kass, Esquire
Mr. Kass served as Associate Justice of the Massachusetts Appeals Court from 1979 to 2003.
Edward J. Barshak, Esquire
Attorney Barshak is a former president of the Boston Bar Association.
Renèe Landers, Esquire
Prof. Landers is a former president of the Boston Bar Association.
Joseph L. Kociubes, Esquire
Attorney Kociubes is a former president of the Boston Bar Association.
Joel M. Reck, Esquire
Attorney Reck is a former president of the Boston Bar Association
Mark D Mason, Esquire
Attorney Mason is the president of the Massachusetts Bar Association.
Pamela E. Berman, Esquire
Attorney Berman is a former president of the Women’s Bar Association.
Leigh-Ann Patterson Durant, Esquire
Attorney Durant is a former president of the Women’s Bar Association.
Marianne LeBlanc, Esquire
Attorney LeBlanc is a former president of the Women’s Bar Association.
Myong J.Joun, Esquire
Attorney Joun is a former president of the Asian American Lawyers Association of Massachusetts
Charles P. Wagner, Esquire
Christina Miller, Esquire
Attorneys Wagner and Miller are co-chairs of the Massachusetts Lesbian and Gay Bar Association
Robert W. Harnais, Esquire
Attorney Harnais is the president of the Massachusetts Association of Hispanic Attorneys.
In their zeal to deny fair play to same sex couples, opponents of same sex marriage have brought an action in the United States District Court that asks a Federal judge to order the members of the Massachusetts Legislature to place on the ballot a proposal to amend the state constitution by inserting in it a provision that prohibits same sex marriage.
The lawsuit also demands unspecified damages from the members of the Legislature.
The complaining parties chose the holiday season – this week – to serve legal process on the members of the Legislature. Press reports indicate that the supporters of the amendment are planning to file complaints with the Massachusetts Board of Bar Overseers against legislators who are attorneys charging them with professional misconduct.
This reprehensible conduct by opponents of same sex marriage can have no purpose other than to intimidate the members of the Legislature and their families; i.e., an attempt to bully them.
It is well known that a member of a duly constituted legislature is protected from legal action based on what the legislator does in her or his official capacity. Just as the speech or debate clause in the United States Constitution (Art I, § 6) protects Senators or Representatives from civil suits, Eastland v. United States Servicemen’s Fund, 421 U.S. 401, 502 (1975), the decisions of the United States Supreme Court make it absolutely clear that state legislators enjoy immunity from federal civil rights actions so that they may perform their duties independently, without fear of law suits or interference by the federal courts. Tenney v. Brandhove, 341 U.S. 367 (1951)(state legislators may not be sued for damages); Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719 (1980)(immunity from injunctive relief). The principle of legislative immunity appears in the Massachusetts Constitution in Part the First, Art. XXI: "The freedom of deliberation speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever." That constitutional provisiion protects a legislator against legal action for anything "said or done as a representative." Coffin v. Coffin, 4 Mass. 27 (1808).
In a nutshell, the lawsuit against the legislators, as it violates specific provisions in both state and federal constitutions as well as the general principle of separation of powers, hasn’t a shred of merit. Also in this very week, the Supreme Judicial Court of Massachusetts ruled unanimously that the separation of powers constrained it from telling the Legislature that it must act in regard to the anti-same sex marriage measure. It is a delicious irony that the same people who lament judicial activism ask a United States Court to tell the Massachusetts Legislature what to do.
The members of the Massachusetts Legislature need not feel intimidated.
Signed:
Rudolph Kass, Esquire
Mr. Kass served as Associate Justice of the Massachusetts Appeals Court from 1979 to 2003.
Edward J. Barshak, Esquire
Attorney Barshak is a former president of the Boston Bar Association.
Renèe Landers, Esquire
Prof. Landers is a former president of the Boston Bar Association.
Joseph L. Kociubes, Esquire
Attorney Kociubes is a former president of the Boston Bar Association.
Joel M. Reck, Esquire
Attorney Reck is a former president of the Boston Bar Association
Mark D Mason, Esquire
Attorney Mason is the president of the Massachusetts Bar Association.
Pamela E. Berman, Esquire
Attorney Berman is a former president of the Women’s Bar Association.
Leigh-Ann Patterson Durant, Esquire
Attorney Durant is a former president of the Women’s Bar Association.
Marianne LeBlanc, Esquire
Attorney LeBlanc is a former president of the Women’s Bar Association.
Myong J.Joun, Esquire
Attorney Joun is a former president of the Asian American Lawyers Association of Massachusetts
Charles P. Wagner, Esquire
Christina Miller, Esquire
Attorneys Wagner and Miller are co-chairs of the Massachusetts Lesbian and Gay Bar Association
Robert W. Harnais, Esquire
Attorney Harnais is the president of the Massachusetts Association of Hispanic Attorneys.
Labels: Equal Marriage
posted by JALSA at 5:17 AM
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