Largess v. Supreme Judicial Court for the Massachusetts

United States Court of Appeals
For the First Circuit

No. 04-1621

ROBERT P. LARGESS, ELIZABETH A. POIRIER, JOHN A. LEPPER,
EDWARD G. CONNOLLY, CHRISTOPHER P. ASSELIN, STEVEN C.
PANAGIOTAKOS, PHILIP TRAVIS, JAMES R. MICELI, PETER J. LARKIN,
ROBERT S. HARGRAVES, EMILE J. GOGUEN, MARK J. CARRON,

Plaintiffs, Appellants,

v.

SUPREME JUDICIAL COURT FOR THE STATE OF MASSACHUSETTS; CHIEF
JUSTICE MARGARET MARSHALL, in the official capacity as Justice of
the Supreme Judicial Court of Massachusetts, JUSTICE ROBERT J.
CORDY, in the official capacity as Justice of the Supreme
Judicial Court of Massachusetts, JUSTICE JUDITH A. COWIN, in the
official capacity as Justice of the Supreme Judicial Court of
Massachusetts, JUSTICE JOHN M. GREANEY, in the official capacity
as Justice of the Supreme Judicial Court of Massachusetts,
JUSTICE RODERICK L. IRELAND, in the official capacity as Justice
of the Supreme Judicial Court of Massachusetts, JUSTICE MARTHA B.
SOSMAN, in the official capacity as Justice of the Supreme
Judicial Court of Massachusetts, JUSTICE FRANCIS X. SPINA, in the
official capacity as Justice of the Supreme Judicial Court of
Massachusetts, MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH;
CHRISTINE C. FERGUSON, in her official capacity as Commissioner
of the Massachusetts Department of Public Health; JUDITH A.
MCCARTHY, in her official capacity as City Registrar for the city
of Boston; CITY AND TOWN CLERKS 1-350; LINDA DAVIES; GLORIA
BAILEY; GINA SMITH; HEIDI NORTON; RICHARD LINNELL; GARY
CHALMNERS; ELLEN WADE; MAUREEN BRODOFF; EDWARD BALMELLI; MICHAEL
HORGAN; ROBERT CROMPTON; DAVID WILSON; JULIE GOODRIDGE; HILLARY
GOODRIDGE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]
 Before

Boudin, Chief Judge,
Lynch, Circuit Judge,
and Howard, Circuit Judge.

Matthew D. Staver, with whom Erik W. Stanley, Anita L. Staver,
Joel L. Oster, Rena M. Lindevaldsen, Liberty Counsel, Robert J.
Muise, Thomas More Law Center, Stephen M. Crampton, Brian Fahling,
AFA Center for Law and Policy, Chester Darling, and Citizens for
the Preservation of Constitutional Rights, were on brief, for
appellants.
Merita A. Hopkins, Corporation Counsel, City of Boston, with
whom Gregory B. Franks, Assistant Corporation Counsel, was on
brief, for appellee Judith A. McCarthy.
Peter Sacks, Assistant Attorney General, with whom Thomas F.
Reilly, Attorney General of Massachusetts, was on brief, for
appellee Supreme Judicial Court of Massachusetts.
Mary L. Bonauto, with whom Bennett H. Klein, Michele M.
Granda, Karen L. Loewy, Gay & Lesbian Advocates & Defenders,
Kenneth J. Parsigian, Abigail K. Hemani, Goodwin Procter LLP, were
on brief, for appellees Hillary Goodridge and Julie Goodridge, et
al.

June 29, 2004
 Per Curiam. Plaintiffs brought suit in United States

District Court against the Supreme Judicial Court of Massachusetts

(the "SJC") and others, alleging that the remedy adopted in the

same-sex marriage decision, Goodridge v. Department of Public

Health, 798 N.E.2d 941 (Mass. 2003), violated their rights under

the Guarantee Clause of the federal Constitution. The SJC, in a

divided opinion, held in Goodridge that "barring an individual from

the protection, benefits, and obligations of civil marriage solely

because that person would marry a person of the same sex violates

the Massachusetts Constitution." 798 N.E.2d at 969. As a remedy,

the court ordered that the state of Massachusetts recognize the

marriage of same-sex couples within six months of the opinion's

issuance. Id. at 968-70. The SJC later held that it was an

insufficient remedy under the Massachusetts Constitution merely to

afford same-sex partners the same benefits as married couples

without also recognizing their marriage. See Opinions of the

Justices to the Senate, 802 N.E.2d 565, 569-72 (Mass. 2004).

The plaintiffs, a Massachusetts citizen named Robert

Largess and eleven members of the Massachusetts legislature acting

as individuals, sought to enjoin the May 17, 2004 implementation of

Goodridge and the issuance or recording of marriage licenses to

same-sex couples. Julie Goodridge and her new spouse Hillary

Goodridge, the named plaintiffs in the Goodridge case, along with

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several others, intervened in the federal action on the side of the

defendants.

The plaintiffs' federal suit asserted that the remedy1

that the SJC adopted in Goodridge redefined marriage in violation

of separation-of-powers principles in the Massachusetts

Constitution. Under the state constitution, according to the

plaintiffs, it is the prerogative of the state legislature, not the

courts, to define the term "marriage." The plaintiffs also

asserted that the Massachusetts Constitution itself defines the

term "marriage" according to its historical meaning as a union

between a man and a woman, and thus that Goodridge effected an

impermissible amendment of the state constitution that further

violated separation-of-powers principles. From the initial premise

that the state constitution was violated, the plaintiffs next

asserted that the remedy in Goodridge violated their rights under

the federal Guarantee Clause of the U.S. Constitution by depriving

them of a republican form of government.

In support of their first argument that the SJC usurped

the legislature's authority, the plaintiffs relied heavily on one

clause of the Massachusetts Constitution:

1
Plaintiffs assert that they are not challenging any holding
by the SJC that same-sex couples are entitled to marital benefits.
Rather, they say, the challenge is to the SJC's "usurping" the
legislature's prerogative to define the term "marriage" and to its
redefinition of that term in a way that is inconsistent with the
understanding held by the framers of the Massachusetts
Constitution.

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 All causes of marriage, divorce, and alimony, and all
appeals from the judges of probate shall be heard and
determined by the governor and council, until the
legislature shall, by law, make other provision.

Mass. Const. pt. 2, ch. III, art. V. The SJC had earlier rejected

that very argument as "based on the erroneous premise that

[Goodridge] constituted a 'cause[] of marriage, divorce, [or]

alimony' within the meaning of the Massachusetts Constitution."

Goodridge v. Dep't of Public Health, No. SJC-08860 (Mass. May 7,

2004) (order denying motion to intervene).

The plaintiffs, arguing state law illegality, also relied

on the SJC's holding in Opinion of the Justices, 85 N.E.2d 761

(1949), that the legislature would impermissibly amend the

Massachusetts Constitution were it to pass a bill providing that

"subways, tunnels, viaducts, elevated structures and rapid transit

extensions . . . are hereby declared to be public highways or

bridges within the meaning of" the Massachusetts Constitution. 85

N.E.2d at 762. Such a bill, held the SJC, would contravene the

principle that the state constitution's "words are to be given

their natural and obvious sense according to common and approved

usage at the time of their adoption." Id. at 763. Similarly, the

plaintiffs argued that by altering the historic meaning of the term

"marriage," which is contained in the Massachusetts Constitution,

the SJC in Goodridge itself amended the state constitution, a

process that normally must be initiated by voters of Massachusetts

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and acted upon by the legislature, see Mass. Const. amend. art.

XLVIII.

The federal district court denied the plaintiffs'

requests for preliminary and permanent injunctive relief, a

declaratory judgment, and a temporary restraining order.2 Largess

v. Goodridge, No. 04-10921-JLT, 2004 U.S. Dist. LEXIS 8461, at *18

(D. Mass. May 13, 2004). The court concluded that the SJC did,

under the Massachusetts Constitution, have the power to redefine

marriage and that, in doing so, the SJC did not perform a

legislative act. See id. at *13-*18. The plaintiffs appealed the

denial of preliminary and permanent injunctive relief and the

denial of a declaratory judgment, and requested an injunction

pending appeal.

By order dated May 14, 2004, this court denied the

requested injunction pending appeal on the ground that the

plaintiffs' "showing so far made as to likelihood of success [on

2
To obtain preliminary injunctive relief, plaintiffs had the
burden of showing (1) a likelihood of success on the merits; (2)
that they would suffer irreparable injury if injunctive relief were
not issued; (3) that such injury outweighs any harm that would stem
from granting injunctive relief; and (4) that the public interest
weighs in their favor. See R.I. Dep't of Envtl. Mgmt. v. United
States, 304 F.3d 31, 45 (1st Cir. 2002). The standard is virtually
identical for permanent injunctive relief, except that "the movant
must show actual success on the merits of the claim, rather than a
mere likelihood of such success." K-Mart Corp. v. Oriental Plaza,
Inc., 875 F.2d 907, 914-15 (1st Cir. 1989). The decision whether
to grant relief is based on a balancing of the different factors,
with likelihood of success playing a pivotal role. See Ross-Simons
of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir.
1996).

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the claimed deprivation of a republican form of government] is not

sufficient to justify interim relief." In doing so, we noted

various potential barriers to plaintiffs' claims, including the

doctrine that the decisions of a state's highest court on issues of

state law, including state constitutional law, are generally

treated as authoritative by federal courts. See Johnson v.

Fankell, 520 U.S. 911, 916 (1997); Schad v. Arizona, 501 U.S. 624,

636 (1991); Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590

(1875). We expedited the appeal, and oral argument was held on

June 7, 2004.

On May 17, 2004, after the plaintiffs had filed their

appeal but before oral arguments were heard, Massachusetts

implemented Goodridge's requirement that same-sex marriage be

recognized. Since then, Massachusetts has issued marriage licenses

to same-sex couples and has recorded same-sex marriages. Thus, the

plaintiffs' desired injunction would now have the effect of

stopping this practice after, rather than before, it had begun.3

I.

The state defendants and the defendant-intervenors raise

3
For this reason, there is no merit to the argument of
defendant-intervenors (which was not joined by the state
defendants) that this appeal is moot because May 17 has come and
passed. Injunctive relief could now issue to stop future
marriages, so a live controversy is still present and the case is
not moot.

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a series of preliminary objections, some of which involve

interesting and difficult issues.4

First, the defendants argue that the plaintiffs lack

standing because, at most, they share an undifferentiated harm with

other voters. Allen v. Wright, 468 U.S. 737, 754 (1984);

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220-

21 (1974). But the circumstances of this case present a rare

instance in which the standing issue is intertwined and inseparable

from the merits of the underlying claim. If the plaintiffs are

correct that the Guarantee Clause extends rights to individuals in

at least some circumstances,5 then the usual standing inquiry --

which distinguishes between concrete injuries and injuries that are

merely abstract and undifferentiated -- might well be adjusted to

the nature of the claimed injury. Cf. Flast v. Cohen, 392 U.S.

83, 105-06 (1968) (in certain circumstances, federal taxpayers have

4
One preliminary objection of the defendants is based on
asserted Eleventh Amendment immunity. We have no need to address
this issue. See Parella v. Ret. Bd. of R.I. Employees' Ret. Sys.,
173 F.3d 46, 56-57 (1st Cir. 1999) (need not reach Eleventh
Amendment issue if other grounds for decision in favor of party
asserting immunity are available).
5
It is of note for purposes of the standing inquiry that the
Guarantee Clause makes the guarantee of a republican form of
government to the states; the bare language of the Clause does not
directly confer any rights on individuals vis-á-vis the states.
Whether, in the sorts of extreme cases discussed below, voters or
other individuals could enforce the Clause is an issue we need not
decide.

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standing to raise Establishment Clause claims against congressional

acts).

A second preliminary objection made by the defendants is

that Guarantee Clause claims are always non-justiciable under the

political question doctrine6 and related caselaw. See Luther v.

Borden, 48 U.S. (7 How.) 1, 42 (1849) (finding non-justiciable a

Guarantee Clause argument by an individual claiming to act under

the authority of a state charter government because Congress, not

the federal courts, should decide which of two competing Rhode

Island governments should be recognized). At oral argument, the

state defendants retreated from this absolutist position and

acknowledged that there may be extreme cases in which a Guarantee

Clause claim would be justiciable, such as those involving

"permanent martial law, [the] declaration of a monarchy, [or]

perhaps a hostile takeover of one branch by another." Another

potential example, defendants acknowledged, might be a case

presenting the same facts as this case but in which the state

constitution had no mechanism for amendment, so that it was simply

beyond the power of the people to alter the SJC's holding. These

concessions by the state defendants demonstrate that resolving the

6
The political question doctrine has been infrequently used
in recent times. As this court noted in Doe v. Bush, 323 F.3d 133
(1st Cir. 2003), in the last forty years (now forty-one) the
Supreme Court has found a case non-justiciable on the basis of the
political question doctrine only twice, and it has explicitly
rejected the doctrine in a number of cases. Id. at 140-41.

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issue of justiciability in the Guarantee Clause context may also

turn on the resolution of the merits of the underlying claim.

Another preliminary objection advanced by the defendants

is that this court should defer to the SJC's resolution of the

Massachusetts constitutional law questions raised by the

plaintiffs. Because the claimed federal Guarantee Clause violation

here depends on supposed state constitutional violations that the

SJC has specifically rejected, the defendants argue that the

plaintiffs cannot establish a necessary premise to their federal

case. The defendants are correct that federal courts should

generally defer to a state's highest court on issues of state law.

See Johnson, 520 U.S. at 916; Schad, 501 U.S. at 636; Murdock, 87

U.S. at 590. But it is at least arguable that the Guarantee Clause

might provide an exception to that rule of deference in extreme

cases, such as where the members of a state's highest court

declared the state to be a monarchy and themselves its regents.

This issue ultimately need not be resolved here, because, as we

explain below, the plaintiffs have not established a federal

Guarantee Clause violation on the facts here, regardless of whether

the remedy in Goodridge offends the Massachusetts Constitution.7

7
For this reason, we do not consider the district court's
determination of the state, not federal, law issue of whether the
SJC's exercise of jurisdiction and holding in Goodridge were
consistent with the Massachusetts Constitution. As the brief for
the state defendants filed by the Attorney General of Massachusetts
notes, a federal court "should be wary of . . . attempt[s] to draw
the Court into reviewing the decision of a state's highest court on

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 II.

The crucial question raised by plaintiffs' case is why

the state constitutional violations they allege, assuming they

exist, amount to a violation of the federal Constitution's

Guarantee Clause. Plaintiffs' argument is that the alleged

transgressions of the Massachusetts Constitution have deprived them

of a republican form of government by intruding on the people's

rights to elect representatives and structure the government.

According to the plaintiffs, not every separation-of-powers

violation under a state constitution leads to this result, but this

one does. Plaintiffs argue that this is because here three

conditions have been met: (1) the delegation or limitation of power

to one branch in the state constitution is express, (2) there is a

"clear departure" from the historic status quo, and (3) this "clear

departure" seriously impairs a representative form of government.

Defendants argue that the Supreme Court has found

Guarantee Clause claims non-justiciable where they were

"'political' in nature and where there [was] a clear absence of

judicially manageable standards." Reynolds v. Sims, 377 U.S. 533,

582 (1964) (citing Baker v. Carr, 369 U.S. 186, 217-32 (1962)). In

response, plaintiffs say that their own criteria provide the needed

matters of state constitutional law." The district court's
approach unnecessarily opened the door, as the state defendants
note, to a new way "for those dissatisfied by state court decisions
to seek federal court review," by simply labeling their
dissatisfaction as a Guarantee Clause claim.

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judicially manageable standards, but they do not purport to find

those standards in Supreme Court precedent.

Whether or not the plaintiffs can satisfy their self-

tailored test, they simply have no viable Guarantee Clause claim on

these facts. First, the text of the Guarantee Clause does not

support such a claim. Second, the Supreme Court's caselaw

interpreting the Guarantee Clause rejects the plaintiffs' expansive

reading of the provision. Third, recognizing the plaintiffs' claim

would ultimately undermine the very purposes of the Guarantee

Clause, as the Supreme Court has noted.

We begin with the text of the Guarantee Clause. It

provides that:

The United States shall guarantee to every State in this
Union a Republican Form of Government, and shall protect
each of them against Invasion; and on Application of the
Legislature, or of the Executive (when the Legislature
cannot be convened) against domestic Violence.

U.S. Const. art. IV, § 4. We do not purport to spell out the

entire scope or meaning of the Clause's guarantee of a republican

form of government. In fact, scholars have interpreted this

portion of the Guarantee Clause in numerous, often conflicting,

ways. See William M. Wiecek, The Guarantee Clause of the U.S.

Constitution 293-303 (1972) (outlining different interpretations of

the Guarantee Clause); see also Akhil Reed Amar, The Central

Meaning of Republican Government: Popular Sovereignty, Majority

Rule, and the Denominator Problem, 65 U. Colo. L. Rev. 749, 749

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(1994); Erwin Chemerinsky, Cases Under the Guarantee Clause Should

be Justiciable, 65 U. Colo. L. Rev. 849, 864-69 (1994); Henry Paul

Monaghan, We the Peoples, Original Understanding, and the

Constitutional Amendment, 96 Colum. L. Rev. 121, 164-65 (1996); G.

Edward White, Guaranteeing a Republican Form of Government: Reading

the Guarantee Clause, 65 U. Colo. L. Rev. 787, 803 (1994). And

John Adams himself, twenty years after ratification of the

Constitution, confessed that he "never understood" what the

Guarantee Clause meant and that he "believ[ed] no man ever did or

ever will." Letter from John Adams to Mercy Warren (July 20,

1807), quoted in Wiecek, supra, at 13.

Despite the conflicting views on the precise meaning of

the Guarantee Clause, the text itself provides guidance. The first

portion of the Clause is only implicated when there is a threat to

a "Republican Form of Government." "Republican" is commonly

defined as "of, relating to, or having the characteristics of a

republic: having the form or based on the principles of a

republic." Webster's Third New International Dictionary 1928

(1993). "Republic," in turn, is defined as "a government in which

supreme power resides in a body of citizens entitled to vote and is

exercised by elected officers and representatives responsible to

them and governing according to law." Id.; see also Oxford English

Dictionary (2d ed. 1989) (defining "republic" as "[a] state in

which the supreme power rests in the people and their elected

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representatives or officers, as opposed to one governed by a king

or similar ruler"). The Guarantee clause does not require a

particular allocation of power within each state so long as a

republican form of government is preserved. Indeed, the forms of

each state government at the time of the adoption of the

Constitution varied in terms of separations of powers, see Robert

J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-

Federalist Approach, 81 Cornell L. Rev. 393, 408-11 (1996), and are

each presumed to have been "Republican" within the meaning of the

Guarantee Clause, see Minor v. Happersett, 88 U.S. (21 Wall.) 162,

175-76 (1874). If there is any role for federal courts under the

Clause, it is restricted to real threats to a republican form of

government. The allocation of powers, including the amendment

powers, set forth in the Massachusetts Constitution, at the time of

adoption and now, self-evidently do not violate the Clause.

Comparing the text of the Guarantee Clause to the

different text of Article II, § 1, cl. 2 of the U.S. Constitution

provides further support for limiting federal court intervention in

state separation-of-powers violations, except, perhaps, in the most

egregious circumstances. The text of Article II, § 1, cl. 2

provides that "[e]ach State shall appoint, in such Manner as the

Legislature thereof may direct" electors for President and Vice

President. In contrast to the Guarantee Clause, this clause

explicitly implicates state separation-of-powers issues by

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conferring a right or obligation upon one branch of the state

government. The extent to which this more explicit text authorizes

federal courts to intervene in state separation-of-powers

violations is nonetheless far from clear. While several members of

the Supreme Court have suggested that federal courts can indeed

review the internal allocations of power in a state government

under the text of this clause, see Bush v. Gore, 531 U.S. 98, 112

(Rehnquist, C.J., concurring) (joined by Justices Scalia and

Thomas), that argument has been rejected by other members of the

Court, see id. at 123-24 (Stevens, J., dissenting) (joined by

Justices Ginsburg and Breyer) ("[N]othing in Article II of the

Federal Constitution frees the state legislature from the

constraints in the State Constitution that created it.").

Accordingly, it is not clear whether the text of Article II, § 1,

cl. 2 provides a basis for federal courts to review potential state

separation-of-powers violations. In the absence of extreme cases,

it is hard to understand the much less explicit text of the

Guarantee Clause, which does not clearly reference state

separation-of-powers issues, generally to authorize such review.

The Supreme Court cases addressing the Guarantee Clause

confirm what the plain text of the Clause suggests: most disputes

concerning the relationship among a state government's constituent

branches do not offend the Constitution's guarantee of a republican

form of government. The Supreme Court first said as much in

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Forsyth v. City of Hammond, 166 U.S. 506 (1897). Responding to a

claim that powers belonging to a state legislature were given to

the state courts in violation of the Guarantee Clause, the Supreme

Court noted that "[t]he preservation of legislative control in such

matters is not one of the essential elements of a republican form

of government" that is guaranteed to the states. Id. at 519. The

Court later generalized this point, observing in response to a

Guarantee Clause claim that "[h]ow power shall be distributed by a

state among its governmental organs is commonly, if not always, a

question for the state itself." Highland Farms Dairy, Inc. v.

Agnew, 300 U.S. 608, 612 (1937); see also Pac. States Tel. & Tel.

Co. v. Oregon, 223 U.S. 118, 150-57 (1912) (Guarantee Clause

defense asserted by corporation against state's action to enforce

payment of taxes is non-justiciable).

Plaintiffs argue that the Supreme Court has not closed

the door to Guarantee Clause claims. They point out that the Court

assumed arguendo that the Clause was applicable in New York v.

United States, 505 U.S. 144, 185 (1992), and that it used some

expansive language to describe the Clause in Printz v. United

States, 521 U.S. 898, 919 (1997).8 But as the plaintiffs

8
In Printz, the Court noted that the Guarantee Clause
"presupposes the continued existence of the states and . . . those
means and instrumentalities which are the creation of their
sovereign and reserved rights," and thus that, through the
Guarantee Clause and several other clauses, the states "retained a
residuary and inviolable sovereignty" when the federal government
was established. 521 U.S. at 919 (internal quotations omitted).

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acknowledge, neither New York nor Printz affirmatively held that

the Guarantee Clause could appropriately be invoked on the facts in

those cases. Both cases, moreover, are easily distinguishable from

the present case because they involved claims by a state that the

executive and legislative branches of the federal government were

interfering with state matters. In this suit, by contrast,

individuals are attempting to invoke the Guarantee Clause against

state officials, and federalism concerns about the scope of

congressional authority are simply absent.9

Most importantly, though, New York and Printz do not

establish that separation-of-powers violations within a state, such

as those alleged by the plaintiffs, constitute Guarantee Clause

violations. Much to the contrary, the Court in New York affirmed

that the Guarantee Clause (if claims under it are justiciable at

all) is only offended in highly limited circumstances. It held

that there was no possible violation of the Clause in that case

9
Acknowledging the different context in which New York and
Printz were decided, plaintiffs draw on academic commentary to
argue that the Guarantee Clause confers judicially cognizable
rights on individuals as well as states. See Chemerinsky, supra,
65 U. Colo. L. Rev. at 851 (the Guarantee Clause is a "protector of
basic individual rights and should not be treated as being solely
about the structure of government"); Debra F. Salz, Discrimination-
Prone Initiatives and the Guarantee Clause: A Role for the Supreme
Court, 62 Geo. Wash. L. Rev. 100 (1993). They also rely on a
Kansas Supreme Court decision, VanSickle v. Shanahan, 511 P.2d 223
(Kan. 1973), which found justiciable (though ultimately non-
meritorious) a Guarantee Clause challenge to a state constitutional
amendment abolishing the offices of state treasurer and auditor.
See 511 P.2d at 227, 240, 243.

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because the states retained "the ability to set their legislative

agendas" and "state government officials remain[ed] accountable to

the local electorate." 505 U.S. at 185. The same is true here.

The obvious question here is why the possibility of

amending the Massachusetts Constitution, see Mass. Const. amend.

art. XLVIII, against the background of normal election of the

legislature and governor by voters, is not sufficient to eliminate

any plausible claim of a deprivation of a republican form of

government under the Guarantee Clause. Although the possibility of

amending the constitution is not the only safeguard, it is

certainly the most direct.

Plaintiffs respond that the change in the definition of

marriage is so momentous that it overshadows either of these checks

available to the citizens of Massachusetts for two reasons. First,

any amendment to the Massachusetts Constitution will take roughly

two years to come into effect. Second, relying on the SJC's

language in Albano v. Attorney General, 769 N.E.2d 1242, 1246

(2002), the plaintiffs contend that the SJC would not permit a

constitutional amendment to render ineffective actions taken before

the date of the amendment. Thus, conclude the plaintiffs, even an

amendment would not void Goodridge, so there is no way to undo the

effect of Goodridge between its implementation and the passage of

a subsequent initiative amendment. As a result, plaintiffs argue

that "in the interim, [they] suffer loss of their representative

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form of government in the same way they would suffer loss if the

SJC had abolished the legislature."

This argument goes too far. The SJC has not abolished

the legislature. The amendment process enshrined in the

Massachusetts Constitution is purposely designed to be slow; that

choice is itself a result of the state's republican form of

government. Moreover, even were the plaintiffs' reading of Albano

correct, an issue we do not decide, then the inability of a

constitutional amendment to void Goodridge retroactively is also

the result of a republican form of government in action. It was

the Massachusetts people who amended the state constitution in 1918

to provide for certain limitations in the process of constitutional

amendment. See Mass. Const. amend. art. XLVIII, pt. II, § 2.

The resolution of the same-sex marriage issue by the

judicial branch of the Massachusetts government, subject to

override by the voters through the state constitutional amendment

process, does not plausibly constitute a threat to a republican

form of government. Absent such a threat, our federal

constitutional system simply does not permit a federal court to

intervene in the arrangement of state government under the guise of

a federal Guarantee Clause question. Such an intervention would

itself threaten federal court interference with the very form of

government that the people of Massachusetts have chosen for

themselves. Perhaps, in unusual and extreme cases, such as the

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establishment of a monarchy by a state in place of a republican

form of government, individuals could utilize the federal courts to

enforce the Guarantee Clause. See The Federalist No. 43, at 311

(J. Madison) (B. Wright ed., 1961) (the Guarantee Clause gives "the

superintending government . . . authority to defend the system

against aristocratic or monarchical innovations"). That is not

this case.

III.

We affirm the denial of injunctive and declaratory

relief. No costs are awarded.

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