Romney Campaign Responds to Marriage Questions

Here's my prediction. Don Federer will not receive an invitation to the Romney campaign Christmas party. (By the way, will I get one?) The pro-family leader ripped Romney on the marriage issue the other day saying that Romney could have done a whole lot more to prevent same sex marriage in Massachusetts after the infamous Goodrich decision handed down by the Massachusetts Supreme Court. You can read about it here.

Now the Romney campaign has come back in full battle mode. Kevin Madden, his spokesman tells the Brody File that:

"The Governor did everything in his power and went beyond just a symbolic gesture in his effort to preserve traditional marriage! He launched a drive for a constitutional amendment that would be guaranteed by a vote of the people, thereby protecting it from activist courts. Governor Romney fought for a long-term permanent defense of the institution of marriage with the participation of the people of the state."

And this coming in today to The Brody File from Jay Sekulow who litgated the Goodrich case:

"He did everything possible and feasible under Massachusetts law. You have to look at what's practible and feasible in that state. He did everything possible to defend marriage."

Sekulow goes on to make the point that you need to put this in proper context. It's not like Romney was Governor in Alabama which has a state constitution that gives the Governor more power and flexibility. In Massachusetts, it's a much different climate which needed a much different approach.

David French is a constitutional litigator for a major Christian public interest legal organization and has been following this issue for awhile. He says:

"Don Federer is a good guy (in fact, I’ve worked with him on other matters), but he’s just flat-out wrong on the gay marriage issue."

"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.

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."

Side A: (which in my view is a red herring)

Romney's Marriage Question February 22, 2007

As I speak to some of the smaller grassroots conservative groups around the country, they keep bringing up this idea that Mitt Romney did not do enough to stop gay marriage in Massachusetts. The headlines read that Romney fought it as Governor and came to Washington DC to testify in front of the Senate to support of a federal marriage amendment. But these groups tell a different story. I bring this up because it is a common concern I hear from folks who at least say they are in the know in Massachusetts. Below is a column yesterday from Don Federer, an Orthodox Jew who is active in the pro-family movement. He lays out the case against Romney on marriage. It's a little long but worth the read.

If you’re confused by Romney’s evolving position on abortion (with many missing links), consider Mitt’s shifting stand on marriage. In January, Romney was Ozzie and Harriet on the campaign trail. “I opposed then and I do now, gay marriage and civil union (sic.),” Romney alleges. “I am proud of the fact that my team did everything within our power and within the law to stand up for traditional marriage." Well, not quite everything.

As a candidate in 2002, he opposed a defense-of-marriage amendment to Massachusetts' Constitution, which preceded the decision of its high court mandating same-sex marriage. (It was, Romney sniffed, “too extreme.”) As governor, there were any number of things he could have done to stop same-sex marriage after the Supreme Judicial Court (SJC) discovered a right to same lurking in an 18th century constitution. Article V of the document drafted by John Adams provides, “All causes of marriage, divorce and alimony… shall be heard and determined by the governor and council,” meaning the courts can’t change the definition of marriage. Yet, as the Commonwealth’s chief executive officer, Romney never attempted to enforce that provision against a clear case of judicial usurpation. Article X of the constitution declares: “The people of this Commonwealth are not controllable by any other laws than those to which their constitutional representative body have given consent.”

The state’s constitutional representative body never consented to gay marriage. The Massachusetts legislature never passed enabling legislation, as mandated by the court. Romney could have simply rejected the decision on the grounds of either constitutional provision. Instead – echoing his earlier pro-choice position – Romney chose to do nothing.Or, Romney could have used a “bill of address” to try to remove a gang of judicial autocrats who were forcing their radical views on the state. He didn’t. (Mitt currently travels around the country railing against activist judges. Talk is cheap.)

So, what did the champion of traditional marriage do? The court ordered the legislature to pass a law providing for same-sex marriage within 180 days. The legislature did nothing. When the time limit expired, Romney acted as if the legislature had acted and told town clerks to issue marriage licenses to gays. He further ordered justices of the peace whose conscience wouldn’t allow them to perform such ceremonies to resign. Except for offering lip-service to traditional marriage, Romney did exactly what gay activists wanted him to do -- nada.

Side B:

And this coming in today to The Brody File from Jay Sekulow who litgated the Goodrich case:

"He did everything possible and feasible under Massachusetts law. You have to look at what's practible and feasible in that state. He did everything possible to defend marriage."

-------

MITT ROMNEY "CHOSE" GAY MARRIAGE?

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.

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

Posted by David French on January 2, 2007 02:23 PM

http://judiciary.senate.gov/testimony.cfm?id=1234&wit_id=3608

Testimony of
Honorable Mitt Romney
Governor
Massachuetts

June 22, 2004 PRINTABLE VERSION

Chairman Hatch, Senator Leahy, Senator Kennedy, distinguished members of the committee, thank you for inviting me to testify today.

As you all know, last November a divided Massachusetts Supreme Judicial Court reformulated the definition of marriage according to their interpretation of the Massachusetts Constitution.

As I am sure you also know, I believe that decision was wrong. Marriage is not “an evolving paradigm,” as the Court said, but is a fundamental and universal social institution that bears a real and substantial relation to the public health, safety, morals, and general welfare of all of the people of Massachusetts.

The Court said that the traditional idea of marriage “is rooted in persistent prejudices” and “works a deep and scarring hardship on a very real segment of the community for no rational reason.” Marriage is “a caste-like system,” added the concurrence, defended by nothing more than a “mantra of tradition.”

And so the Court simply redefined marriage, and, based on their reading of the Massachusetts Constitution, declared that “the right to marry means little if it does not include the right to marry the person of one’s choice.”

This is no minor change, or slight adjustment. It is a fundamental break with all of our laws, experiences and traditions.

When some in the state Senate asked whether a “civil unions” bill would satisfy the ruling, the Court rejected the alternative, writing that traditional marriage amounts to “invidious discrimination” and that “no amount of tinkering would remove that stain.”

In response, our legislature proposed a constitutional amendment that “only the union of one man and one woman shall be valid or recognized as a marriage in Massachusetts,” and establishing civil unions for same-sex couples. While I do not think civil unions should be written into the constitution, the main and laudable effect of the amendment would be to overturn the Court’s decision.

This was the first step in the legitimate process, by which the representatives of the people turn to the sovereign people to decide this momentous issue. But it takes time to amend the constitution in Massachusetts. The legislature must pass this amendment again, and then it would be submitted to the people for consideration.

Because it will take time to follow the process of constitutional amendment in the Commonwealth, I asked the Massachusetts Attorney General to call for the Court to withhold their pronouncement until the people could consider the question, so that they would not be excluded from a decision as fundamental to our societal well-being as the definition of marriage. He declined to do so.

Several last minute challenges to the decision were also summarily rejected.

So, as a result, on May 17, the Commonwealth of Massachusetts began issuing marriage licenses to persons of the same sex. These licenses are valid for up to 60 days and are filed with the State Department of Public Health two months after a marriage has taken place. Therefore, we do not have official statistics and information yet from our Department of Public Health. However, the Boston Globe recently surveyed the 351 cities and towns in Massachusetts and the results of their survey do provide some information on the activity since May 17.

According to the Globe, in the first week that the issuance of marriage licenses to same-sex couples became legal, over 2,400 such licenses were issued. The vast majority of these licenses were issued to Massachusetts residents, because our state does have a law which prohibits couples from entering into valid marriages in Massachusetts if there is an impediment to marriage in their home state. Applicants are required to sign a form signifying their intent to reside in Massachusetts in order to receive a license.

Originally, we were aware of six communities where the clerks refused to honor that law. The Globe reports that at least 164 out-of-state couples, from 27 states and Washington, DC, were issued licenses by these clerks. 56 of those couples specified on their application that they do not intend to move to Massachusetts. For those couples whose unions would not be recognized in their home state, according to Massachusetts law, their marriage is null and void.

At my request, the Attorney General directed the city and town clerks to comply with the existing Massachusetts law, and it is my understanding that currently, all the cities and towns are in compliance. Legislation is pending in the Massachusetts legislature which would repeal this residency law and, although it has passed the Senate, it doesn’t appear likely to pass the House in the short period remaining before adjournment.

Nevertheless, other actions are underway to eliminate the residency requirement. Two suits have been filed against this law, one from a dozen Massachusetts towns and another from several same-sex couples from Maine, New Hampshire, New York, Rhode Island and Connecticut. The couples argue that this new right is so powerful that denying it to non-residents violates the Massachusetts Constitution, as well as the Privileges and Immunities Clause of the US Constitution.

With the inauguration of same-sex marriages, a plethora of legal and regulatory issues are now arising. Although we will eventually be able to sort these issues out, it will take time. And, more importantly, we must move through many of these issues without the benefit of adequate time for full consideration of all the impacts. I expect that we will continue to see new issues arising for the foreseeable future as the Commonwealth struggles to understand all the changes that will now be sought due to this judicial ruling.

A number of the issues we are now reviewing relate to state benefits. In some cases, we have been in contact with the federal government to understand their position on the eligibility for benefits that are provided by the state but funded by the federal government. For example, we have been told that we cannot use federal funds to provide meals for an elderly same-sex spouse if the person’s eligibility for the services is due to their spousal status. We have not heard yet from the Veterans Administration as to whether we can bury two same-sex spouses at our state Veterans cemeteries. Medicaid is a particularly interesting situation. Under our state laws, we use federal income eligibility guidelines. In this case, since the marriage is not recognized by the federal government, the person will be deemed eligible for Medicaid based on their individual income, not their two-spouse income. And, CMS has confirmed that federal matching funds will be available in this instance. However, if the person is eligible for Medicaid due to their spousal relationship, federal matching funds cannot be used since the federal government does not recognize the marriage. Similarly, CMS has notified us that federal transfer of asset rules regarding spouses will not apply, nor will spousal impoverishment provisions apply, to same sex spouses.

There are other very troubling issues. We now must consider whether to amend our birth registration process, which currently requires the name of a mother and a father. Should we change our birth registration documents to read “Parent A” and “Parent B”? What impact would this have on child support enforcement, considering that birth certificates are a critical tool that are used to find and force absentee fathers to provide child support.

A number of legal issues are expected related to divorce and inheritance rights, particularly regarding those couples who move out of Massachusetts to states where there marriage is not recognized. The private sector is also beginning to grapple with ramifications of this change. We have been told anecdotally that some companies may be dropping domestic partnership benefits now that same-sex couples can wed, thus eliminating a benefit that was available in the past. Pension issues are also expected to arrive, particularly for surviving spouses who do not meet the requirement for number of years married when marriage was not legal prior to May 17.

These issues will not be confined to Massachusetts alone. Our state’s borders are porous. Citizens of our state will travel and may face sickness and injury in other states. In those cases, their spousal relationship may not be recognized, and it would be likely that litigation would result. Massachusetts residents will move to other states, and thus issues related to property rights, employer benefits, inheritance, and many others will arise. It is not possible for the issue to remain solely a Massachusetts issue; it must now be confronted on a national basis.

We need an amendment that restores and protects our societal definition of marriage, blocks judges from changing that definition and then, consistent with the principles of federalism, leaves other policy issues regarding marriage to state legislatures.

The real threat to the states is not the constitutional amendment process, in which the states participate, but activist judges who disregard the law and redefine marriage in order to impose their will on the states, and on the whole nation.

At this point, the only way to reestablish the status quo ante is to preserve the definition of marriage in the federal constitution before courts redefine it out of existence.

Congress has been gathering evidence and considering testimony about the need for a constitutional amendment to protect marriage. The time fast approaches for debate, and then decision.

The decision you will make will determine whether the American people will be allowed to have a say in this matter, or whether the courts will decide this matter for them.

At the heart of American democracy is the principle that the most fundamental decisions in society should ultimately be decided by the people themselves. Surely the definition of society’s core institution, marriage, is such a decision.

Let me conclude with this point: Despite the warning signs, the Massachusetts Legislature hesitated, and refused to act. But the court had no such reluctance, and acted decisively. Now on the defensive, the legislature has begun the long and difficult process of amending the Constitution to undue what the Court has done. But it may soon be too late.

This is what happened in Massachusetts. It is in your hands to determine whether or not this will be the fate of the nation.

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