Could Romney Have Stopped Gay Marriage?

The Window on January 4, 2007

Could Romney Have Stopped Gay Marriage?
(Part 3 of Some Questions for Mitt Romney)

Reminder: Visit my “Theocon Blog” and leave your comments on this report:
http://dealwhudson.typepad.com/deal_w_hudson/.

This is the third part in my series on Gov. Mitt Romney. My intention is to help inform Catholics about the positions and record of the former Massachusetts Gov. as he explores the 2008 Republican nomination for the presidency positioned as a “social conservative.”   

Parts I and 2 dealt with Romney’s record on abortion and emergency contraception, gay rights, gay-friendly judicial appointments, and gay adoption. In this part, I will raise the question of whether Gov. Romney could have stopped gay marriage in Massachusetts before it happened.

As many people know, on November 18, 2003 the Massachusetts Supreme Judicial Court (SJC) ruled in Goodridge vs. Dept. of Public Health that same-sex couples should not be denied the right to marry in Massachusetts.

Since that time, Romney has pushed aggressively for a marriage-protection amendment in Massachusetts. This amendment passed its first round in the Legislature on January 2. 

Gov. Romney, however, previously opposed a 2002 marriage-protection amendment that would have preempted the court ruling of November 2003.

Romney has also been one of the more outspoken politicians on the national scene in favor of defining marriage as between one man and one woman, and against activist judges whose rulings paved the way for gay marriage.

However, what most people don’t know, and what is most overlooked by the media, is that John Adams had the foresight in 1780 to write specific provisions in the Massachusetts Constitution, the world’s oldest functioning written Constitution, to prevent judicial activism of this sort. 

Unfortunately, Romney made no attempt to exercise most of his constitutional options in order to block same-sex marriages before they began or stop them while in office, and Catholic activists would like to know why.

Romney could have declared the ruling null-and-void and unenforceable immediately after it was made in November of 2003. How?  Article 5 of the Massachusetts Constitution says, “All causes of marriage, divorce, and alimony… shall be heard and determined by the governor and council.” Romney could have said that the Court simply had no subject matter jurisdiction to rule over the definition of marriage.   

Why was Romney silent on this point?

The Massachusetts Constitution also has specific provision for removing judges without cause via a “bill of address.”Instead of responding to a problem of activist judges by going through a lengthy process of amending the Constitution, the offending judges can simply be removed from office for distorting the Constitution to impose their own views. 

Such a procedure has been successfully used several times in the past in Massachusetts. In the spring of 2004 Romney could have supported the active grassroots effort and Democratic-sponsored legislation to remove the judges who wrote the Goodridge decision. 

If Romney was genuinely troubled by the role of “activist judges” in the same-sex marriage issue, why did he refuse to support this move in 2004?

Next, Romney could have followed the precedent of Abraham Lincoln in the 1857 Dred Scott case—which Romney himself referred to in a Wall Street Journal editorial—and respected the decision of the Court with regard to only the litigants in THAT specific case. 

As described in National Review by Prof. Hadley Arkes, Abraham Lincoln and his party did not try to set the slave Dred Scott free once the Supreme Court had confirmed him to remain in slavery. Lincoln only accepted the ruling for the parties in the specific case, and he did not allow the public policy of the whole country to be affected by the Supreme Court’s decision.   

Romney could have announced that he would respect the decision for the plaintiffs, but he could have insisted then that clerks issue licenses of marriage ONLY to couples who had come through comparable litigation and received a comparable order from a court. 

If Romney was such an enthusiast for Lincoln's response to the Dred Scott decision and so determined to block same-sex marriage, why didn't he pursue the same strategy to try and block same-sex marriage from propagating beyond the small group of Goodridge litigants?
Finally, and most importantly, since the ruling stopped short of changing the previous marriage law, a strong governor could have simply refused to do anything.
Article X of the Massachusetts Constitution provided Romney clear justification for ignoring the court order. “The people of this Commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent.” And Article XX says, “The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the Legislature.”

The justices who wrote the Goodridge decision knew this—which is why they specifically did not strike down the previous law. But the Legislature was then given 180 days in which to act.   

GLAD Attorney Mary Bonauto, representing the seven gay couples who sued the state, agreed saying immediately after the 2003 Goodridge ruling, “The only task assigned to the Legislature is to come up with changes in the law that will allow gay couples to marry at the end of the 180-day period.”

All three branches of government concurred. The SJC clarified their ruling in February of 2004 writing to the Senate, “The purpose of the stay was to afford the Legislature an opportunity to conform the existing statutes to the provisions of the Goodridge decision.” 

Romney himself in April of 2004 said, “The Legislature…has yet to follow a directive from the SJC to change the state’s marriage laws. I believe the reason that the Court gave 180 days to the Legislature was to allow the Legislature the chance to look through the laws…and see how they should be adjusted…for purposes of same-sex marriage; the Legislature didn’t do that.”   

And State Sen. Bruce E. Tarr, a gay-marriage supporter, also said in April of 2004, he believed the Legislature would ultimately pass bills that would insert gender-neutral language into the state’s marriage laws in time for the May 17, 2004 deadline. ‘‘No one should interpret inaction thus far with the idea that no action is forthcoming,’’

The Massachusetts Legislature NEVER acted to change the law. What happened between April 2004 (corrected date from The Window) and May 17 when Romney decided a “new law” existed and ordered town clerks to follow it by issuing same-sex marriage licenses?

We don’t know. 

And since the court ruling never ordered the Governor to do anything, why did Romney order justices of the peace to perform the unions or resign their positions if they objected on moral grounds? 

We don’t know.

Even if some people not familiar with the Massachusetts Constitution felt that somehow the Court did change the law, since the Court had violated their constitutional authority, what would have happened if Romney had had the courage to stand up and defy the Court?

Considering that the SJC had previously ruled they could not force the Legislature to perform their sworn constitutional duty, what consequences was Romney afraid of in defying the activist judges? 

Would the Court have directed state employees to begin accepting applications from homosexuals for marriage licenses? 

Would they have furthered their own power grab by trying to usurp executive powers from the Governor? 

Would they have found him in contempt for ignoring a ruling that was in contempt of the Constitution and had no legal basis?

Virtually every pro-family conservative in the country urged Romney to stand strong at the time and defy the Court. The Family Research Council said, “Most important right now is for the governor to stand firm [and] not allow any marriage licenses to be handed out on May 17.” 

Concerned Women for America urged Romney to intervene via executive order and “put the brakes on this madness. He needs to make it clear that the law has not changed, and that on May 17 homosexual couples cannot make a mockery of God's institution of marriage.” 

Patrick Buchanan called on Romney to declare, “There is no basis for it [the Court’s decision] in law…in the letter or spirit of the Constitution of our Commonwealth…And as I took an oath to defend the Constitution of the Commonwealth, I intend to disregard the court order of last November.”

The Massachusetts Catholic Conference went on the record saying the SJC “exceeded their authority,” and Gov. Romney failed in his duty to “uphold the Constitution.”

Instead of standing up for his supposedly strong beliefs on marriage and defending the Constitution, he exercised his leadership by ordering justices of the peace to perform same-sex marriages. 

Then he started traveling in other states actively campaigning against activist judges and against the very same-sex marriages that he could have blocked via executive order.

Romney’s supporters and some conservative lawyers today still claim the Court somehow “changed the law” and say Romney could not have defied the Court without incurring subsequent court action. But these same people ignore the fact that it is the Massachusetts Constitution that bans courts from legislating from the bench. 

Since Romney failed to exercise stronger executive leadership, today the Constitutional amendment he has enthusiastically backed, and which recently passed its first round in the Massachusetts Legislature, remains the most politically viable option for stopping same-sex marriage in Massachusetts. 

But, it still faces long odds of ever making it to the people for a vote, given pro-family losses in the new legislature where it must undergo a second approval. The presence of a new liberal Democratic governor who is already on the record as saying he will work hard to see it killed in the Legislature is another obstacle.

Romney has portrayed that he was "forced" into implementing homosexual marriages, but he refused to pursue other options backed by pro-family conservatives and his own state Constitution.

Now Romney campaigns against the marriages he himself, not the court, implemented and made a reality.   

Perhaps Romney was a victim of poor legal advice at the time, but marriage defenders have kept him continually informed about his constitutional options and obligations from 2004 to the present.

They deserve to know why he did not do more.
 
Mitt Romney is a strong candidate for the Republican presidential nomination. But, given his campaign focus as a “social conservative,” Catholics and other conservatives are entirely justified in asking questions about his effort in defending marriage against the judicial activists on the Massachusetts Supreme Court.

Comments

[Carol McKinley]

To Mike at Evangelicals for Mitt,

Massachusetts prolife, profamily activists have hands-on experience with Mitt that is important to get out to prolife voters.

I'm troubled with the way you seem to be attacking Mass Resistance. I am accquanted with Brian Canemaker who has been at every legislative session fighting Planned Parenthood and the sexual activists who are trying to make their sex ed programs "mandated" to graduate from high school for more years than I care to remember.

Brian is a father who found Massachusetts educators indoctrinating children into immoral and violent sexuality, including giving comlicated instructions on how to "fist" each other. Some of these children were 5th graders. Nobody can deny Mitt's record on his sexual education policies.

I am not part of Brian's group but as a Massacusetts Catholic parent, I am very much grateful for all he has done to try to protect our children from being indoctrinated . He has done more, and quite frankly been more effective than the Massachusetts Catholic Conference.

Painting him as some kind of 'extremist' is against the well being of our common agenda. I don't think at the end of the day, it will bode well for Mitt either. Is he going to take a position against parents who have been fighting Planned Parentood?

I would highly and respectfully recommend you reconsider your tack.

Massachusetts parents would be delighted to come and speak to your group about our experiences. You can judge for yourselves.

Incidently, The SJC when giving the Legislature 180 days to act, was not a suggestion they were pulling out of thin air. There is a Massachusetts statute which excludes giving marriage licenses to anybody but one man and one woman. This law is still law. The legislature did not repeal it.

Therefore, the duty of the Governor was to uphold that law until such time as the Legislature repeals it, if they ever do.

[mike]

Did Mitt Romney choose gay marriage for Massachusetts? That's the thrust of a bizarre and amateurish legal argument that is circulating through the internet and conservative media. A group calling itself "MassResistance" has been peddling for many months the argument that the Massachusetts Supreme Court did not actually mandate same-sex marriage in Massachusetts but instead merely requested that the legislature change the laws to permit same-sex marriage. Since the law was not changed (and since the Court didn't have the authority to order the legislature to write new laws)--so the argument goes--Governor Romney therefore never had to recognize same-sex marriage and was in fact the "father" of same-sex marriage when he permitted state and local officials to perform and recognize such marriages. For the latest example of this specious argument, see the quotes from MassResistance member John Haskins in this story.

If such silly legal arguments didn't cause so much harm, I would read them and laugh. Instead, some serious people seem to be taking these arguments seriously, so let me take a moment for a little bit of constitutional law 101. As with most bad arguments, MassResistance starts with a grain of truth: Judges have very little authority to order legislators to do anything, and depending on the state constitution may have no power at all to issue orders to the legislature. The proper, constitutional, role of the judiciary is to interpret the law, not make new law.

MassResistance argues that the Massachusetts Supreme Court overstepped its bounds and ordered the legislature to change state laws to permit same-sex marriage. Because the laws have not yet been changed (and because the court can't issue such an order in the first place), same-sex marriage is not yet legal in Massachusetts, and Governor Romney's decision to recognize same-sex marriages since the court's decision was entirely optional and discretionary.

Sounds compelling, right? Sounds almost scholarly, doesn't it? Well, there's a problem. Even if you accept every premise of MassResistance's argument regarding the proper role of the courts and the legislature, their argument falls apart based on the language of the same-sex marriage case itself.

You can read the entire opinion at the Massachusetts court website, but for those who lack the time--or stomach--to read the whole thing, please pay attention to this paragraph:

We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage.
What does this mean? It means that the court interpreted (that's another word for "construed") Massachusetts law to mean that two people of the same sex could marry--and that any interpretation contrary to the court's would violate the rights of homosexuals. In other words, the court did not order the legislature to do anything. Instead, it did what the constitution allows it to do--it interpreted the law. It did so in an improper, activist way that abandoned the obvious original intent of the Massachusetts constitution and the Massachusetts marriage laws, but it interpreted the law nonetheless.

Now, take a look at the next paragraph:

In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.
Read it again. And again. Do you see any order directed against the legislature? No? Well, that's for a good reason. The court did not order the legislature to do anything--it merely stayed its judgement for 180 days for the legislature to take action that it deemed "appropriate." However, since the marriage laws had already been interpreted (construed) to include same-sex marriage, the legislature did not have to take any action at all for same-sex marriage to become legal. It was already legal because of the court's decision.

Frankly, it is sad that so many could be misled by something so simple--and simply wrong. When the Governor confronted the Massachusetts Supreme Court, he had two choices: (1) He could fight the decision using legal means; or (2) he could risk contempt citations and impeachment in an ineffectual, grandstanding attempt to block same-sex marriages. Rather than becoming the what the media would undoubtedly call the "George Wallace of gay marriage" and hand homosexual activists a propaganda victory to go along with their court victory, Governor Romney fought using the law and using his enormous gifts of persuasion. As a result, the same-sex marriage movement has lost public momentum, has lost court cases, and has lost at the ballot box. And we have Governor Romney and his principled, courageous, and compassionate defense of traditional marriage to thank for much of that success.

Mitt Romney did not "choose" gay marriage. At a critical moment in our nation's history, Mitt Romney did make a choice, and he chose to defend marriage in a way that can and should make all conservatives proud.

P.S. If you doubt my qualifications to read a court case, please read my bio.

http://www.evangelicalsformitt.org/front_page/mitt_romney_chose_gay_marriage.php

[Robert Paine, Esq.]

Excellent article.
Great questions.
I'd love to hear Romney's answers.

In addition:
In 2004, Romney said. "There are certain acts that I can take within the law with regards to filing legislation and the like and I’ll evaluate all the options which exist within the law, and I intend to follow the law fully as it exists day-to-day and particularly as it exists on May 17." Turns out, either he did not know what the law was on May 17th (because it had not -- and it continues not to have been -- changed) or he chose not to follow it. Really doesn't matter either way. He is clearly in violation of his oath of office for not upholding the Massachusetts Constitution and the laws of the Commonwealth.

What is the penalty for Romney violating his oath of office?