Posted on 01/09/2007 2:36:32 PM PST by SirLinksalot
Could Romney Have Stopped Gay Marriage?
January 4, 2007 Deal W. Hudson
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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 2003 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.
I do not trust Romney. Not one bit.
He also would not grant Catholic Charities a waiver to continue its Adoption Ministry (the state likes to call it a business). Guess what's on the air on WRKO now. Advertisments promoting Adoption. Apparently since women who want their child to have a family that looks like Jesus, Mary and Joseph no longer have that conduit, they are choosing to raise the child in a single parent home. I hope.
I think Mitt's heart is in the right place on this. I'd rather have a president whose heart is in the right place, even if wishy-washy in practice when working in the horrible liberal environment of Massachusetts, than someone like Hillary, who is as left wing as they come, but who once in a while will triangulate and make a somewhat conservative statement on something that causes the media to gush that she is such a moderate.
If he'd had access to a lot of information about what the courts would do, and if he'd been prepared to really strain himself and his credibility to carry such a measure beforehand, it still wouldn't have put the amendment through.
So, this article looks a lot like hindsight to me. You can come along afterwards and say, "at this point, he should have acted," but at the time Romney probably didn't have the information that we all have after the fact.
The liberal activist judges on the Massachusetts Supreme Judicial Court were playing chess with the Legislature in the pursuit of their unconstitutional radical Left agenda. The Legislative Branch checked them, by simply ignoring their illegal order.
Unfortunately, Mitt Romney was playing checkers, and ended up enforcing the unconstitutional order of the Court anyway.
I for one believe that Romney did it on purpose, and that when he told the Log Cabin Republicans a few years back that he shared their agenda, he meant it.
But even if you ignore the prevailing facts and don't believe that, you're still left with the conclusion that he is at the minimum a constitutional moron, and that he failed to fulfill his duty as the chief executive of the state.
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?
I've been asserting all along that Romney is solely responsible for the imposition of gay marriage in MA. This is the final nail in that coffin.
Oh, I know, FR's large contigent of judicial supremacists, may of them attorneys, will scream real loud, but the facts are clear, even to the layman.
GREAT post!
The ONLY way the judicial supremacists can get around the simple, clear, unambiguous, words of the MA constitution is to completely ignore them. Which is what they will do. Count on it.
"He also would not grant Catholic Charities a waiver to continue its Adoption Ministry (the state likes to call it a business). Guess what's on the air on WRKO now. Advertisments promoting Adoption. Apparently since women who want their child to have a family that looks like Jesus, Mary and Joseph no longer have that conduit, they are choosing to raise the child in a single parent home. I hope."
Romney fought quite vocally to allow the Catholic Charities to continue adoptive services to special needs children (they had been recently barred due to an unwillingness to place kids in same-sex homes). See http://www.youtube.com/watch?v=MDPifOZ6j1Y .
Barred by whom? Judicial edict? An agency of Mitt Romney's executive branch? Legislation? Just curious...
"The ONLY way the judicial supremacists can get around the simple, clear, unambiguous, words of the MA constitution is to completely ignore them. Which is what they will do. Count on it."
Ridiculous. I'm neither a judicial supremacist nor have I ignored the words of the Massachusetts constitution. As I've said, Goodridge was an absolute travesty. But judicial supremism/review is here to stay and those who accept it are neither unusual or liberal. Not unless you consider virtually every major conservative jurist to be liberal.
I have to ask, since over and over we've seen a complete disconnect between Mitt's loud public pronouncements and his actual policies. His actions are speaking so loud I can't hear him talking...
"they had been recently barred due to an unwillingness to place kids in same-sex homes
Barred by whom? Judicial edict? An agency of Mitt Romney's executive branch? Legislation? Just curious..."
I believe, though don't quote me on this, that the Catholic Charities, which had previously consented to place children in same-sex homes, changed that policy, at which point lawsuit was brought against them for violation of Massachusett's anti-discrimination laws. At which point I assume the judiciary ruled that they had indeed violated these laws.
Then our free republic is well and truly dead. The sovereignty of the American people, and our republican form of government, (guaranteed to all the states by our Constitution) kept under control by checks and balances on each of the three branches, has been usurped by tyrants in robes.
Over my dead body.
Can you show me the MA law that forces men and women of conscience to violate their closely-held beliefs if they want to help the weakest and neediest among us?
Or is this just more judicial tyranny, enforced by Mitt Romney's executive branch?
"...judicial supremism/review is here to stay...
Over my dead body."
There is a substantial difference between judicial supremacy/review and "make it up as you go along" living constitutionalism. They aren't even related to the same aspects of constitutional law. Judicial supremacy/review is not an inherently conservative or liberal idea, but rather one that enjoys a broad spectrum of support. You're certainly entitled to reject it, and I don't blame you. But I really wish conservatives would stop pretending that it's a widely rejected doctrine in conservative circles. I didn't hear many people denouncing it when we wanted McCain/Feingold overturned, or when the SC handed down US v. Lopez.
And so long as we continue to elect compliant squishes like Mitt Romney, we'll continue down that path.
He could have stood against the court and gay marriage, but instead rolled over to their demand. That's the last kind of "leader" we need.
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