District Judge Joseph Tauro today declined to issue an emergency stay of the Massachusetts Supreme Judicial Court’s decision to allow same-sex marriages, prompting the parties who filed suit to stop the ruling from going into effect May 17 to ask the First Circuit Court of Appeals to take up the case.

As WorldNetDaily reported, several constitutional-law organizations, along with 11 legislators, filed a lawsuit Monday, arguing the court overstepped its bounds by establishing same-sex marriage in its landmark decision. The suit asks the court to issue a temporary restraining order to stop the enforcement of the ruling and to stop the issuance and recording of marriage licenses issued to same-sex couples. In their lawsuit, the groups say marriage is an issue for the legislative and executive branches in Massachusetts to define, not the judiciary.

Mathew Staver, president and general counsel for Liberty Counsel, one of the organizations, has asked the First Circuit Court of Appeals to hear the case.

In response to the ruling Staver, a Boston resident, said, “We will appeal this case as far as necessary to ensure that the separation of powers principal is upheld in Massachusetts. The republican representative form of government must be restored so the people can have a chance to define marriage.”

The first-in-the-nation legal marriage licenses are scheduled to be issued Monday unless there is judicial intervention.

In its November ruling in the case Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court noted: “We are mindful that our decision marks a change in the history of our marriage law.”

The court stayed its decision for 180 days to allow the Massachusetts Legislature time to respond to the decision. The Legislature then passed an amendment to the Massachusetts Constitution defining marriage as between one man and one woman only. Under Massachusetts law, however, the earliest the voters can vote to approve the amendment is 2006.

According to a statement from the Liberty Counsel, the lawsuit argues that the court’s decision violates Article 4, Section 4, of the United States Constitution, which is called the Guarantee Clause. That clause guarantees that every state in the union will have a republican form of government. The Guarantee Clause, which was a requirement for states to be admitted into the union, places the federal government in the position of a referee over the states to ensure that the states follow a republican form of government.

The lawsuit claims the clause is violated in this case because the Massachusetts court usurped the power of the Legislature and the governor in hearing the Goodridge case and in redefining marriage.

Stated Liberty Counsel: “There is nothing more basic to a republican form of government than the principle of separation of powers. When that is violated, as the Massachusetts Supreme Court did in this case, the federal government is obligated to step in to ensure that the citizens’ right to have a republican form of government in their state is protected.”

Richard Thompson, president and chief counsel for the Thomas More Law Center, commented, “Judicial activism is destroying our culture. The Goodridge decision, if left unchecked, will have far reaching implications on the institution of traditional marriage that go well beyond the borders of Massachusetts. This is a national problem that must be addressed now.”

Citizens for the
Preservation of Constitutional Rights and AFA Center for Law and Policy are also parties in the litigation.

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