Foes sue justices of SJC in US court

The legal battle over gay marriage in Massachusetts moved to federal court for the first time yesterday, as several conservative groups filed a lawsuit against the seven justices of the state's highest court and urged a federal judge to issue an emergency order preventing the state from allowing same-sex couples to marry beginning Monday.

The suit, filed on behalf of Robert P. Largess, vice president of the Catholic Action League, alleges that the Supreme Judicial Court exceeded its power by redefining marriage in November when it legalized gay marriage in the state. The suit also names the state Department of Public Health and its commissioner; Boston registrar Judy A. McCarthy; and 350 city and town clerks whose jobs require them to issue marriage licenses.

The suit contends that the court violated "the federal constitutional guarantee to the citizens of Massachusetts to a republican form of government" and urged a federal judge to issue a temporary restraining order banning state officials from issuing marriage licenses to same-sex marriages.

US District Judge Joseph L. Tauro is expected to decide today whether to hold a hearing on the request for the emergency order, according to one of the lawyers who filed the suit.

But constitutional law specialists predicted yesterday that the maneuver, which mirrors legal arguments already rejected in state court, was unlikely to succeed, because federal courts have historically left state courts to interpret state law.

They also said that Largess may have difficulty proving that he has standing to file the federal suit, because he must present evidence that he would be harmed if same-sex couples marry in Massachusetts.

"The probability that a temporary restraining order will be granted in this case hovers somewhere between zilch and zero," said Eric M. Freedman, a professor of constitutional law, legal history, and federal civil procedure at Hofstra University.

But Boston lawyer Chester Darling of the Citizens for the Preservation of Constitutional Rights, one of four conservative legal groups that filed the federal suit, said the SJC should "step aside and respect the process because the voters are the ultimate power in the Commonwealth. . . . They're behaving like an oligarchy over there." Robert J. Muise -- a lawyer with the Michigan-based Thomas More Law Center, another plaintiff in the suit -- said the lawsuit was filed under the guarantee clause of the US Constitution, which prevents the accumulation of excessive power by any one branch of government, thereby "preventing tyranny."

However, Freedman said the guarantee clause was designed to give Congress the power to defend states in the event of a rebellion. "There is no case in the history of the country from 1849 until today in which the US Supreme Court has ever permitted an individual litigant to maintain an action under the guarantee clause," he said.

Freedman was among a group of professors who signed an amicus brief filed on behalf of the plaintiffs in Goodridge v. the Massachusetts Department of Public Health, the case that led to the SJC's ruling. Mary Bonauto -- legal director of Gay and Lesbian Advocates and Defenders, which brought the gay marriage case before the SJC -- said the federal suit was "just repackaging the same old argument" about the separation of powers, which has repeatedly been rejected in state court.

On Friday, the SJC rejected a suit by 13 state lawmakers who argued the court has no jurisdiction in matters regarding marriage.

Boston lawyer Leonard H. Kesten a constitutional law specialist, said state courts have had a role in defining marriage over the years, noting that bans on interracial marriages were ultimately outlawed by a court challenge that was heard by the US Supreme Court.

"I would be very surprised if the federal court overrules the Massachusetts SJC on its interpretation of the Massachusetts Constitution," Kesten said.

Howard Friedman, another Boston lawyer whose practice centers on constitutional law, questioned whether Largess had standing to file the case in federal court. "If two people of the same sex marry, what harm befalls the plaintiff in this case? You can't bring suit because you don't like a ruling that won't affect you," Friedman said.

The harm, according to Muise, is the chaos that he predicts will result from gay marriages in Massachusetts if gays are allowed to marry and then voters approve a constitutional amendment in 2006 that would restrict marriage to heterosexuals.

"The marriages are going to start, and it is going to create legal chaos, not just in Massachusetts," he said, "but across the nation and we have to take very legal step to prevent that harm."