Comments on: Romney, the Courts, and the Constitutions: Part 2 — Mitt Romney and Same-Sex Marriage http://www.bizzyblog.com/2007/11/21/romney-the-courts-and-the-constitutions-part-2-mitt-romney-and-same-sex-marriage/ The Business End of the Blogosphere Mon, 13 Oct 2008 07:15:50 +0000 http://wordpress.org/?v=2.5 By: TBlumer http://www.bizzyblog.com/2007/11/21/romney-the-courts-and-the-constitutions-part-2-mitt-romney-and-same-sex-marriage/#comment-118345 TBlumer Sat, 24 Nov 2007 19:14:22 +0000 http://www.bizzyblog.com/2007/11/21/romney-the-courts-and-the-constitutions-part-2-mitt-romney-and-same-sex-marriage/#comment-118345 #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: <em>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.</em> 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 <em>Goodridge</em>. 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. #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.

]]> By: Stphen http://www.bizzyblog.com/2007/11/21/romney-the-courts-and-the-constitutions-part-2-mitt-romney-and-same-sex-marriage/#comment-118344 Stphen Sat, 24 Nov 2007 18:41:19 +0000 http://www.bizzyblog.com/2007/11/21/romney-the-courts-and-the-constitutions-part-2-mitt-romney-and-same-sex-marriage/#comment-118344 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. 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.

]]> By: Rose http://www.bizzyblog.com/2007/11/21/romney-the-courts-and-the-constitutions-part-2-mitt-romney-and-same-sex-marriage/#comment-118319 Rose Thu, 22 Nov 2007 12:58:00 +0000 http://www.bizzyblog.com/2007/11/21/romney-the-courts-and-the-constitutions-part-2-mitt-romney-and-same-sex-marriage/#comment-118319 Now THIS is journalism. Well done (again). Thank you. Now THIS is journalism. Well done (again). Thank you.

]]> By: Pundit Review » Blog Archive » Romney, the Courts, and the Constitutions: Part 2 — Mitt Romney and Same-Sex Marriage http://www.bizzyblog.com/2007/11/21/romney-the-courts-and-the-constitutions-part-2-mitt-romney-and-same-sex-marriage/#comment-118316 Pundit Review » Blog Archive » Romney, the Courts, and the Constitutions: Part 2 — Mitt Romney and Same-Sex Marriage Thu, 22 Nov 2007 03:35:36 +0000 http://www.bizzyblog.com/2007/11/21/romney-the-courts-and-the-constitutions-part-2-mitt-romney-and-same-sex-marriage/#comment-118316 [...] 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. [...] […] 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. […]

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