Could Mitt Romney Have Stopped Gay Marriage?

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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.

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?

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?

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.

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 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.
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?"

No, no I can't. You're missing the point and you continually miss the point. I suspect it's deliberate. You're continually putting forth arguments that go something like this "what an awful, absurd usurpation of judicial power". I agree. Both of these are awful, absurd usurpations. But then you're somehow, by some rhetorical trick as yet unknown, extending that to mean that the decision is void. You're using the exact same logical inanities that liberals continually use to justify there lovely "living constitutionalism". You don't like a result, therefore it's not allowed. Do you accept judicial review? Do you accept the principle that courts can overturn "unconstitutional laws"? Do you accept the principle that the Supreme can interpret the meaning of statutes? Because, if so it seems to me that your overall boils down to: "the Court's must overturn unconstitutional laws, and interpret statutes, but only when they're laws I believe are unconstitutional, and only when they're statutes that advance me cause". Again, this is precisely the logic that dovetails into living constitutionalism. Either the Courts have the power to interpet legislation, or they do not. They cannot, by any reasonable formulation, only interpret legislation that aid your cause.

"You're talking about departmentalism. I agree, as I'm a departmentalist. But we're in the extreme minority and I don't use that particular issue as a litmus test for candidates.
Well, we're never going to get something we don't ask for. Only after trying and failing to attain the ideal can we excuse settling for less.

If so, I'd be left between a choice of Alan Keyes and Alan Keyes.

I could live with that."

I don't tilt at windmills. I have every intention of, if I eventually become a judge, putting my judicial philosophy into action. But when 98% of the public disagrees with me on an issue, I have no choice but to win what small victories I can. And that does not mean attempting to derail a presidential candidate because he abides the same doctrine every other presidential candidate holds. That's not principle, it's insanity.

No, no I can't.

Just as I suspected.

You're missing the point and you continually miss the point. I suspect it's deliberate.

I've stayed very much on point throughout this conversation.

You're continually putting forth arguments that go something like this "what an awful, absurd usurpation of judicial power". I agree. Both of these are awful, absurd usurpations.

Glad to hear it.

But then you're somehow, by some rhetorical trick as yet unknown, extending that to mean that the decision is void. You're using the exact same logical inanities that liberals continually use to justify there lovely "living constitutionalism". You don't like a result, therefore it's not allowed.

Wrong. I'm saying that when a court makes an unconstitutional ruling, the executive and the legislative branches have a sworn duty to, first, interpret the Constitution, and then check the judicial branch by every means available to them. Not turn around and use their power to enforce unconstitutional edicts, as Jeb Bush and Mitt Romney have done in very important cases in the recent past.

Do you accept judicial review?

Of course I do. I also accept "executive and legislative review." That's the point.

Do you accept the principle that courts can overturn "unconstitutional laws"?

Of course. But that's not what is at issue. What is at issue is the fact that we have a passel of judges who have been legislating from the bench, ignoring the clear words of our constitutions, the intent of the framers, bypassing the plain meanings of our laws, and dreaming up nonexistent emanations and penumbras from the bowels of their liberal hearts.

Do you accept the principle that the Supreme can interpret the meaning of statutes?

That's their job.

Because, if so it seems to me that your overall boils down to: "the Court's must overturn unconstitutional laws, and interpret statutes, but only when they're laws I believe are unconstitutional, and only when they're statutes that advance me cause".

I believe no such thing. Nice try.

Again, this is precisely the logic that dovetails into living constitutionalism. Either the Courts have the power to interpet legislation, or they do not. They cannot, by any reasonable formulation, only interpret legislation that aid your cause.

Again, you're just plain wrong, and attribute to me ideas that I don't hold.

I don't tilt at windmills.

Don Quixote was a fictional character, one who saw imaginary monsters. The liberal activist judiciary is quite real, as is the damage they are doing to the sovereignty of the American people and our precious institutions. This real monster is in the process of eating us all, and is systematically destroying our inalienable, God-given rights to life, liberty and private property.

Our children and grandchildren will not enjoy the life we and our forebears have enjoyed if we don't act to reverse it.

In fact, nearly 50 million unborn Americans have already died at their hands.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

I have every intention of, if I eventually become a judge, putting my judicial philosophy into action.

And I'll continue to focus on electing legislators and executives to hold those philosophies in check, so that the Constitution, not a person's philosophy, rules this country.

In fact, that's where the solution of the problem of judicial supremacy lies. As the Mitt Romney example illustrates, the courts cannot get away with usurping power, unless folks like him allow it. That ultimately means the burden lies with we, the people, to seek out executives and legislators who understand the separation of powers.

I'm not so cynical as to believe our nation has forever lost that character and will.

And that does not mean attempting to derail a presidential candidate because he abides the same doctrine every other presidential candidate holds. That's not principle, it's insanity.

Giving up on our future without a fight is what's insane--not to mention unworthy of our heritage. Let's not be willing to wave the white flag until no choice indeed presents itself.

I'm going to try to be a liberal for a second. Hold on, it takes some psychological backflips. Ok, so I'm going to rephrase the following statement in liberalese.

"Of course. But that's not what is at issue. What is at issue is the fact that we have a passel of judges who have been legislating from the bench, ignoring the clear words of our constitutions, the intent of the framers, bypassing the plain meanings of our laws, and dreaming up nonexistent emanations and penumbras from the bowels of their liberal hearts."

Of course. But that's not what is at issue. What is at issue is that fact that we have a passel of judges who have been ignoring the freedom's that are uniquely our heritage and the contemporary content of fairness and fraternity, by employing outmoded constitutional approaches that insist that words have meaning.

Would you, I wonder, accept this explanation as a legitimate basis for liberals to ignore rulings and use their executive and legislative authority to check the judiciary? Of course not. Why? Because you think your method of constitutional exegesis, originalism, is valid while living constitutionalism is not. But your insistence on departmentalism cannot logically apply only when the rulings are handed down by liberal courts. I'm perfectly fine with departmentalism as a governing philosophy. If you accept departmentalism whole hog, then I praise you. But it's simply ridiculous to assert that the judiciary can only be reviewed by originalists, because they're right and living constitutionalists are wrong.

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