November 21, 2007

Romney, the Courts, and the Constitutions: Part 2 — Mitt Romney and Same-Sex Marriage

Filed under: News from Other Sites,Taxes & Government — Tom @ 8:43 pm

This is the second part of what will ultimately be a 5-part post (Part 1 is here; Part 3, done on Friday, is here) about a fascinating and important e-mail debate that unfolded over the past five or so days, primarily between Gregg Jackson and Kevin Whelan, the co-hosts of Pundit Review Radio and the Pundit Review blog, with some input from myself and at least a couple of other more knowledgeable folks.

As I noted in Part 1, broader issues about the relationships between the branches of government have come to the fore as a result of looking at the specifics of Mitt Romney’s performance and record on abortion rights and same-sex marriage in Massachusetts. You can also go to Part 1 to see a list of the various posts by Gregg, Kevin, and others that have taken us to this point.

Part 1 covered government-subsidized abortion. This part covers same-sex marriage.

As weak as Mitt Romney’s defenses appear to be on allowing, and most probably expanding, the availability of abortion in the Bay State, he is, in my admittedly less-than-expert opinion, on much, much weaker ground on how he handled the Supreme Judicial Court’s (SJC’s) ruling in Goodridge vs. Department of Public Health.

Here is how Wikipedia describes the “ruling” (full ruling text is here; opens in new window), which is basically accurate, if puffed-up, until the last sentence:

In a 50-page, 4-3 ruling delivered on November 18, 2003, the Massachusetts Supreme Judicial Court found that the state may not “deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.” Chief Justice Margaret Marshall, writing for the majority, wrote that the state’s constitution “affirms the dignity and equality of all individuals” and “forbids the creation of second-class citizens” and that the state had no “constitutionally adequate reason” for denying marriage to same-sex couples. On the legal aspect, instead of creating a new fundamental right to marry, or more accurately the right to choose to marry, the Court held that the State does not have a rational basis to deny same-sex couples from marriage on the ground of due process and equal protection.

The court gave the State Legislature 180 days to change the law to rectify the situation.

As in Part 1, at its core, it all gets back to how much power the courts have. In the case of the same-sex marriage “ruling,” there are two aspects to consider: its enforceability and its constitutionality.

As to enforceability, Part 1 demonstrated that an SJC “ruling” in Massachusetts is really a “statement of belief” that means nothing without a law passed by the legislature and signed by the governor that implements it. If that were not the case — if the SJC could really declare that same-sex marriage is okey-dokey without anyone’s help — it clearly would have done so, on that day in November 2003. But, under Massachusetts’ constitution, it can’t. Further, contrary to the final sentence from Wiki, the SJC had no constitutional power to impose a deadline on the Legislature. I have to believe that the 180 days “given” was the result of Old Media spinning a gullible public that has long since gotten used to courts impermissibly throwing their weight around (in the “ruling,” the language used is a less imperative suggestion that the legislature “take such action as it may deem appropriate in light of this opinion.”)

A perfectly appropriate riposte to the last sentence of the Wiki excerpt would be, “Or what?” You will see that even today it would be, and should be, the appropriate response.

It appears that “everyone knew” after the Goodridge “ruling” that the Legislature was going to pass a law to implement it. Not only that, as Robert Paine demonstrates at his January 13, 2007 post, everyone (Nov. 24 — see the Update at Part 3 for the only specific exception I could find) many people on both sides of the issue “knew that the legislature would have to change the marriage law for same-sex “marriage” to become legal.” In other words, legislation had to happen, or the “ruling” would mean nothing. Paine cites statements from liberal politicians, profamily leaders, liberal constitutional scholars like Lawrence Tribe, Goodridge counsel, and Mitt Romney himself, all to that effect.

Here’s what Mitt Romney said on April 15, 2004 (link was found by me; bold is mine):

“I believe the reason that the court gave 180 days to the Legislature [following its ruling] was to allow the Legislature the chance to look through all of the laws developed over the centuries and see how they should be adjusted or clarified for purposes of same-sex marriage; the Legislature didn’t do that,” Romney said. “Without an extension of the stay, it leaves to the executive branch . . . the responsibility to sort out as well as we can how we can interpret and execute these laws.”




How the bolded sentence went unnoticed at the time by profamily groups and constitution-loving conservatives is almost incomprehensible. They were instead misdirected into praising Romney for complaining, without result, that he should be able to represent the state in front of the SJC instead of the Attorney General, who supported Goodridge (the Massachusetts Constitution says that the AG is the only one who can do this, so it appears to have been an exercise in futility).

But please, focus on the bolded sentence in the Romney quote.

Mr. Romney: What “laws”? We know that an SJC “ruling” is not a “law.” So there’s nothing to “interpret.” There’s no law to “execute.” If the Legislature hasn’t passed the law the Court has advised them is needed, YOU would be violating your state’s constitution (and ended up doing exactly that) by putting into place “laws” that don’t exist.

After the legislature failed to act, Mitt Romney went ahead and executed the non-existent law anyway, leaving me to unfortunately agree with Raphael Lewis, the writer of the Boston Globe report I linked to:

From a political standpoint, the governor’s effort appeared designed to demonstrate one last time that he tried to block gays from marrying in this state, and to give him room to blame the Democrat-run Legislature for refusing to allow him even to ask the SJC to stay its ruling.

Crocodile tears, sir. As Paine says, “Romney had no enabling statute, nor is there one today, to permit same-sex couples to marry.”

So why, during the final two-plus years of his administration, did Mitt Romney act like an enabling statute existed, when the fact of the matter is that it did not, and still does not?

(Added Nov. 24)

A “statute” is “an enactment made by a legislature and expressed in a formal document.”

In Massachusetts specifically, it means “a law ratified in the constitutionally prescribed manner by the legislature (with the governor’s signature or an override of the governor’s veto).” Once enacted, a statute becomes incorporated into the existing body of law that members of the executive branch from town clerks up to and including the governor swear to execute faithfully, and that members of the judicial branch from Justices of the Peace up to and including the SJC swear solemnly to apply faithfully in specific cases before them.

(Resume original post)

For that matter, why have profamily and conservative organizations not held Romney’s feet to the fire for two years of “implementation” of a “law” that does not exist?

Readers who believe that same-sex marriage is an idea whose time has come nevertheless must in all intellectual honesty concede that the lack of a enabling statute means that marriage law in Massachusetts has not changed, and that Mitt Romney has “implemented” a legal fiction. As noted in Part 1, if the people of Massachusetts don’t like the fact that the law didn’t change and still hasn’t changed, they have to lobby their legislators to revise it, and then encourage the governor to sign it. If the legislators won’t get off their rear ends and pass enabling legislation, or if the governor won’t sign it — too bad, so sad. The only remaining recourse is a little thing called “holding elections.” If enough agreeable legislators can’t be elected, or if a recalcitrant governor vetoes relevant legislation and sustains an attempt to override his veto — again, too bad, so sad.

Now let’s get to the constitutionality of the ruling itself. Follow me closely on this.

While this may not necessarily be true in other states, Paine notes in Part I of “The Governor’s New Clothes: How Mitt Romney Brought Same-Sex Marriage To America” that “The Legal Authority to Certify and Solemnize a Marriage in Massachusetts Originates Solely by Statute.” In other words, in the Bay State it only “counts” as a marriage if the State statute says it does.

In Part II, he correctly characterizes the SJC’s decision as saying that “that Chapter 207 (the relevant section of the marriage statute — Ed.) does not permit same sex marriage as it was written.” But then, using a foreign-law precedent (Ontario, Canada), the SJC unilaterally decided that it could “refine ….. the common-law meaning of marriage.”

There’s only one problem. I thought I learned this in the only business law class I took, and it makes what the SJC majority “ruled” incoherent on its face — Common law, no matter how interpreted or “refined,” does not trump statutory law. Paine points to this in Part III and Part IV, concluding, I believe correctly, that “The act of reformulating the common law meaning did not and could not change the (one man, one woman) meaning of the term ‘marriage’ contained within the statute,” and that the SJC specifically acknowledged that.

It gets worse. Remember that a Massachusetts marriage only “counts” if the state statute says it does. In other words, perhaps unlike other states, and unlike the Canadian province of Ontario cited (incoherence piled on top of incoherence), common-law marriage doesn’t exist in Massachusetts. Paine thus concludes in Part V that common law is irrelevant to marriage in Massachusetts, and that “any reliance on that foreign case (is) utterly misplaced.”

It should be obvious by now that the SJC “ruling” didn’t even pass a constitutional stench test, let alone a smell test. Romney could have ignored the ruling on obvious unconstitutionality alone. He apparently, according to some, had the potential to take action against the judges themselves for such blatant and obvious dereliction of their duties to uphold the state’s constitution, and to other avenues for redress, but did not avail himself of any of the possibilities. I’ll leave it to others to analyze those, as it distracts from the completion of the task at hand.

The point of Paine’s Part VI is that nothing has changed. “….. since the SJC did not strike down the Massachusetts marriage statute and the legislature has not changed or repealed it, the marriage statute is still in effect and continues to prohibit same-sex marriages.” In fact, “the Legislature has never changed the wording of the statute to permit same-sex marriage, nor has it repealed the law, thus, the law of Massachusetts has never changed.”

Part VII of Paine’s work, along with this link to the full op-ed column that originally appeared in the Wall Street Journal in February 2004, show that Romney (Juris Doctor, Harvard Law, 1975) clearly knew everything about the “ruling’s” unconstitutionality covered to this point. Romney further wrote that “By its decision, the Supreme Judicial Court of Massachusetts circumvented the Legislature and the executive, and assumed to itself the power of legislating. That’s wrong.”


  • Romney had marriage license certificates changed from “Husband” and “Wife” to “Person A” and “Person B” anyway. He didn’t have to, and further had no constitutional authority to do so.
  • He “ordered the town clerks, even ones with religious conscience concerns, to solemnize the marriages.” He didn’t have to, and further had no constitutional authority to do so.
  • In these and other actions, he “acquiesced in the SJC decision and actively authorized same-sex ‘marriage.’” He didn’t have to, and further had no constitutional authority to do so.

It is thus clear, again regardless of how one feels about the issue itself, that same-sex marriage certificates issued in Massachusetts under the Romney regime have been issued without requisite legal authority to do so (i.e., a real law voted on by the legislature and signed by the governor), and are, by definition, void.

So not only did Mitt Romney not have the required legislative authority to implement Goodridge, the “ruling,” on its face, is objectively and irretrievably constitutionally flawed. He had a constitutional duty to the state’s citizens to ignore the “ruling,” and he failed in that duty.

And yet, somehow, Mitt Romney is considered A-OK by “conservatives” who clearly should know better.

Paine’s conclusion in Part VIII:

….. as Chief Executive, Governor Romney is under a continuing constitutional and sworn duty, day after day, year after year, to comply with his oath and to uphold the laws of the Commonwealth regarding same-sex “marriage.” So far, however, he has chosen not to do so. He could be sued for mandamus. Sadly then, it was not the SJC, but rather Governor Romney’s acquiescence in the SJC’s unconstitutional conduct that has brought same-sex “marriage” to America. Without his complicity, not one fraudulent “marriage” license would ever have been issued.

Now that it has been definitively shown that Mitt Romney failed to do his constitutional duty as governor, and in fact proactively did the exact opposite, someone needs to explain to me why the entire country should expect that he won’t be similarly derelict in his duties if he were to be elected president.

Future Parts: Part 3 contains excerpts certain comments, and statement from various parties involved with, or involved in implementing, the Goodridge decision. Part 4 tells the story of the Supreme Court’s 1988 Beck decision, and why it’s relevant to the discussion of a president’s and Congress’s dealings with the courts. Part 5 covers dicey separation of powers issues that a President Romney might be expected to face, and what could happen if he acts as negligently as president as he did while governor of Massachusetts.



  1. [...] Our friend Tom Blumer from Bizzy Blog thoroughly rebuts the claim that Mitt Romney had no other choice but to enforce the “decision” of the Supreme Judicial Court of Massachusetts when they issued the Goodridge decision which has been said to have “legalized gay marriage.” In fact, Tom demonstrates that it was not the MSJC who imposed “gay marraige” on Massachusetts citizens (even though the court acted unconstitutionally as well) but was Mitt Romney himself who in ordering the Justices of the Peace and Town Clerks to perform same sex marriage ceremonies violated his oath to uphold the constitution and enforce the laws of the Commonwealth. [...]

    Pingback by Pundit Review » Blog Archive » Romney, the Courts, and the Constitutions: Part 2 — Mitt Romney and Same-Sex Marriage — November 21, 2007 @ 10:35 pm

  2. Now THIS is journalism. Well done (again). Thank you.

    Comment by Rose — November 22, 2007 @ 7:58 am

  3. That’s a lot of typing to make a simple and flawed argument. I don’t see how you can make the argument that the legislature and the Governor had the authority to ignore the court. You’re ignoring the reality of the design of our system and the basic concept of checks and balances. You’re ignoring the function of the constitution and its relationship to laws. If citizens believe that existing laws (or the absence of laws) deny them protections guaranteed by the constitution, they can seek to correct the situation through the government which, as you seem to want to deny, includes the courts. The first two paragraphs of the preamble of the MA Constitution say:

    The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

    The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

    Had those seeking same-sex marriage petitioned the legislature to modify the laws – the constitutionality question would undoubtedly have been brought up – especially by SSM opponents. It still would have ended up in the court, the correct and only entity to answer questions of constitutionality. I think Romney is a flip-flopping phony and I’m certainly not defending him. I’m simply objecting to your mischaracterization of the Goodridge decision and your suggestion that the marriage license of same-sex couples in Mass are invalid because the state had no authority to issue them. The suggestion is absurd.

    Comment by Stphen — November 24, 2007 @ 1:41 pm

  4. #3, The preamble is nice and important as a statement of principles, but it does not speak to the mechanics of the sausage-making process at all, much as you might wish that it does.

    I think we should both be able to agree that in Massachusetts, with its constitution as written and its marriage statute as written, if the governor doesn’t have an actual piece of legislation to refer to and execute, he does not have the authority to implement what he thinks the law should or would be, based only on an SJC ruling (because the SJC does not have the authority to force him, and also has not spelled out the details). If we cannot agree on that, we will never be on the same page.

    Re the legislature, you made my point when you said:
    Had those seeking same-sex marriage petitioned the legislature to modify the laws – the constitutionality question would undoubtedly have been brought up – especially by SSM opponents.

    Of course that is what would have happened if the Legislature had passed a law. When taken to Court, the Court might have affirmed a real law that modified the marriage statute. Who knows? Whether it would have withstood legal challenge at least partially involves a natural-law argument outside the scope of these posts, which is about the dysfunction reigning in MA as a result of each of the three branches ignoring the state’s constitution.

    Ah, but SSM opponents knew that even in MA they couldn’t get the legislature to do what it wished, so it took the intellectually dishonest route and went straight to the courts. But even the SJC, ruling as it did, couldn’t legally bring itself to consider itself a super-legislature, and requested that the legislature (because it couldn’t ORDER it) come up with a law in 180 days.

    The Legislature used up its alloted time, and did not do what the SJC suggested, and to this day has not. Thus, MA law has not changed. Mitt Romney and his administration, and presumably Deval Patrick’s administration, are pretending that it has. THAT is what is absurd.

    As long as you think the MA constitution and the rule of law mean something, it is is anything but absurd to say that nothing has changed (yet) as a result of Goodridge. It’s the truth. All the play-acting in the world and 100 years of pretending won’t change that until either the marriage law and/or the constitution are changed by the legislature and/or the voters. In the meantime, MA appears to operating under a government of rule by whim, and not the rule of law. I don’t understand why Mitt Romney or anyone else would acquiesce to that, or why they feel compelled to acquiesce.

    Also, read Part 1 if you haven’t already.

    Comment by TBlumer — November 24, 2007 @ 2:14 pm

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