Hadley Arkes, Professor of Jurisprudence, Amherst College, said that “the deeper failure must go to the man who stood as governor….and if it is countdown for marriage…it is also countdown for Mitt Romney, whose political demise may be measured along the scale of moves he could have taken… Robert Bork, who was somehow persuaded to endorse Romney, back in his more alert years described the Goodridge decision as being “completely untethered from the state and Federal constitutions and from the rule of law.”
Dr. Herb Titus: “Rick Santorum challenged Mitt Romney to justify the former Massachusetts Governor’s decision to implement the Supreme Judicial Court of Massachusetts ruling that declared that the exclusion of otherwise qualified same-sex couples from civil marriage violated the state constitution. After the debate, Mr. Romney stated to Mr. Santorum that he did all that he legally could to stop the implementation of the court’s decision before he exercised his duty as Governor to enforce the court’s decision requiring local officials to issue marriage licenses to same-sex couples. He issued a challenge to Mr. Santorum to find any qualified legal authority that would not agree with him. I have been asked to meet that challenge. I am a graduate of the Harvard Law School. I am an active member of the Virginia bar and the bar of a number of federal courts, including the United States Supreme Court. As a professor of constitutional law for nearly 30 years in four different ABA-approved law schools, and as a practicing lawyer, I have written a number of scholarly articles and legal briefs on a variety of constitutional subjects; including the nature of legislative, executive and judicial powers and the constitutional separation of those powers. I am generally familiar with the Massachusetts Constitution, and especially familiar with that constitution’s provision dictating that no department shall exercise the powers that belong to either of the other two departments “to the end it may be a government of laws and not of men.” As Governor, Mr. Romney has claimed that he had no choice but to obey the Supreme Judicial Court’s opinion. This claim is false for several reasons. First, Mr. Romney was not a party to the case. Only parties to a case are bound to obey a court order. As President Abraham Lincoln said in support of his refusal to enforce the United States Supreme Court’s infamous Dred Scott case – the nation’s policy regarding slavery was not determined by a court opinion, even by the highest court of the land. Likewise, the Commonwealth of Massachusetts’ policy regarding marriage may not be determined by the Supreme Judicial Court, the State’s highest court. Second, the Supreme Judicial Court did not order any party to do anything. Rather, it issued only a declaration that, in its opinion, excluding otherwise qualified same-sex couples access to civil marriage was unconstitutional. Thus, even the Massachusetts Department of Health, which was a party to the case, was not ordered to do anything. Third, the Massachusetts Board of Health was not authorized by statute to issue marriage licenses. That was a job for Justices of the Peace and town clerks. The only task assigned by the Legislature to the Board of Health was to record the marriage license; it had no power to issue them even to heterosexual couples. So the Department of Health, the only defendant in the case, could not legally have complied with an order to issue marriage licenses to same-sex couples. Fourth, if the court were to order the Department of Health to issue marriage licenses to same-sex couples, then Mr. Romney’s duty as governor would have been to instruct the Department that it had no authority to do what the court ordered. Nor could the court confer such authority, such an authorization being in nature a legislative, not a judicial, act. Fifth, the decision whether to implement the Supreme Judicial Court’s opinion was, as the court itself acknowledged, for “the Legislature to take such action as it may deem appropriate in light of [the court’s] opinion.” By the very terms of the order, the Massachusetts legislature had discretion to do nothing. Sixth, because the legislature did nothing, Mr. Romney had no power to act to implement the court decision. By ordering justices of the peace, town clerks, and other officials authorized to issue marriage licenses to issue marriage licenses to same-sex couples, Mr. Romney unconstitutionally usurped legislative power, a power denied him by the Massachusetts constitution that separated the three kinds of powers into three different departments. "Professor Scott Fitzgibbon of Boston College Law School wrote that the Goodridge decision “did not mandate that the executive branch issue marriage licenses to same-sex couples.” Constitutional scholar Herb Titus said that Romney “exercised illegal legislative authority” and added “there was no order. There wasn’t even any order to the Department of Public Health to do anything.” Matt Staver, Dean of Liberty Law School, said that Romney “went out and ordered to licenses to be changed, and if fact, that’s not his duty. His duty was to abide by the legislature….the governor actually participated, in my opinion, in advancing same-sex marriage.”
I must say that the legal references upon which I have depended to understand this decision are uniformly at variance with Dr. Titus' interpretations. That fact does not invalidate opposing views. But it may well reflect Romney's reliance on the advice of his own attorney general (Tom Reilly), who one might assume must have offered his counsel as Romney is obviously not a lawyer. Troubling information, regardless. Thanks again.