November 23, 2007

Romney, the Courts, and the Constitutions: Part 3 — Various Excerpts, Statements, and Comments

This isn’t the Part 3 I thought I would put up when I posted Part 2 on Wednesday. There will be a Part 4 (or maybe Parts 4 and 5) about the possible constitution-related implications of a Romney presidency.

In the meantime, I thought it would be worthwhile to post a few excerpts and statements from the period following the Goodridge ruling in November of 2003 (full text here; opens in new window). They will illustrate how putting the ruling into place was originally seen as requiring enabling legislation — but then, without such legislation, it was nevertheless implemented extra-constitutionally (based on the Massachusetts constitution), and illegally (unless someone wants to tell me or comment below as to why I’m wrong), by Mitt Romney.

In a final item, I will contend that Romney’s opposition to a 2002 amendment that would have affirmed one man, one woman marriage in Massachusetts was based on specious reasoning.


On the need to have an actual law in place by 180 days after the Goodridge “ruling”:

Feb. 14, 2004, Boston Globe — Massachusetts Governor Mitt Romney ruminates on what happens in case no constitutional amendment is brought before the voters in response to the Goodridge decision, and signals his intent to implement Goodridge even if there is no legislative instruction:

“One [possibility] is that there will be no amendment, in which case there’s no particular legal limbo,” the governor said. “Another is an outcome that will cause potentially some confusion and disruption. And if that were the case, you’d look to see if there were a way to reduce that, and I’ll be open to suggestions about how one might accomplish that.”

The response by Romney to the amendment’s status is equally apropos to the lack of any enabling legislation, which would also create, in his mind, a “legal limbo,” even though under Massachusetts’ constitution, a governor and the executive branch can’t, and thus in this case could not, do anything as executive until he has it. He appeared to be signaling his intention to implement the law a full three months before the court’s (unenforceable) deadline (oops, make that six months — see “Nov. 19, 2003, Wayback-saved version of original CNN Article” below).

February 4, 2004 at (appears, based on URL, to have been updated from Nov. 18, 2003) — Plaintiffs’ counsel acknowledges that legislature has a task to enact relevant law changes:

Attorney Mary Bonauto, who represented the seven gay couples who sued the state, said 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, the AP reported.

Yet that same article also claimed, “Analysts said the state Legislature could write laws legalizing same-sex marriages, or it could do nothing and let Tuesday’s ruling go forward.” I’d like to know who these “analysts” are, as it appears that nothing should have been allowed to “go forward” if the legislature did nothing. And the legislature did nothing.

Nov. 19, 2003, Wayback-saved version of original CNN Article — Oh, what I said above about Mitt Romney signaling his intention to comply with the law regardless of the presence or absence of enabling legislation is wrong. Romney’s acquiescence started on the day of the ruling:

Massachusetts Gov. Mitt Romney said the state Legislature would comply with the court’s ruling “even if we don’t agree with it.”

In partial defense, Romney may have been misquoted, as he obviously can’t really speak for the Legislature, as the sentence says. Nevertheless, the intent to lie down and take it in the seven quoted words, after some perfunctory posturing, appears to have been clear from the start.

Jan. 5, 2004, Boston Globe

Saying the “rule of law and the legitimacy of the courts” are at stake, former governor William Weld, two former state attorneys general (Scott Harshbarger and James Shannon — Ed.), and two top lawyers will deliver a letter to all 200 legislators today, urging them to enact into law the Supreme Judicial Court’s ruling allowing gays to marry.

….. “We see the SJC’s ruling as unequivocal: The existing ban on marriage for gay people is unconstitutional,” reads the letter, authored primarily by Harvard constitutional scholar Laurence Tribe. “. . .We urge each of you as members of a coordinate branch of government sworn to uphold the constitution, and the rule of law, to use the remainder of the time period in the court’s stay to take any and all steps possible to facilitate the orderly issuance of marriage licenses to qualified same-sex couples.”

….. In addition to Harshbarger, Weld, Shannon and Tribe, Boston Bar Association president Renee M. Landers signed the three-page letter. While their views on the issue had already been reported, the letter marks an unusual lobbying effort by high-profile former state officials on a current policy issue on Beacon Hill.

I would suggest that the assembled heavyweights lobbied as they did, using the strong language that they used (saying that the “rule of law and the legitimacy of the courts” hang in the balance is about as strong as it gets), because they knew, and still know (but probably will dare not now say), that only actual legislation enacted by the legislature and signed by the governor would truly legitimize same-sex marriage in the Bay State.


On the relevance of a proposed constitutional amendment brought to the voters for approval that would have established the validity of same-sex marriage:

From the same Globe story by Richard Klein –

Because the SJC found that gay couples have a right to marry under the state constitution, only a constitutional amendment can invalidate the ruling. But the earliest any amendment can be added to the constitution is November 2006, because amendments must be approved by two consecutive sessions of the Legislature and then be adopted on a statewide ballot.

This appears to be fundamentally wrong in several ways:

  • The SJC did NOT find that “gay couples have a state constitutional right to marry.” A reading of the ruling makes that crystal clear. Instead, as covered in Part 2, the court invented a “refinement” of the common-law definition of marriage, overturning centuries of common-law legal understanding and at least several millenia of societal tradition, and then falsely claimed that this “refinement” trumps the state’s constitution.
  • If Romney didn’t want the “ruling” to go into effect, all he had to do is to have the legislature take it under advisement, and then, after due consideration, fail to affirm the court’s “ruling,” which is really an unenforceable “statement of belief.” But wait a minute: In the process of also failing to come up with constitutional amendment language, the legislature also failed to affirm the ruling by passing a real law.
  • So I believe Mr. Klein had it exactly backwards:
    – Rejection of a constitutional amendment that would establish the legitimacy of same-sex marriage would leave the law as is, i.e., one man, one woman. Again, the SJC “ruling” isn’t enough; it has to have an enabling law. No enabling law, no same-sex marriage. Period.
    – But the voter approval of such a constitutional amendment would be binding on the state, its politicians, and its citizens, and could then only be undone by a future constitutional amendment.


On Romney’s opposition to a 2002 attempt to get an amendment constitutionally enshrining the one-man, one-woman definition already in the law put on the ballot:

February 11, 2004 Boston Globe — Richard Klein again:

In 2002, Democratic legislative leaders scuttled an effort to put a constitutional amendment defining marriage as the union of a man and a woman on a statewide ballot. If that had gone forward, the state constitution could have been amended as soon as this year, rather than 2006. But a Republican attempt to use this issue against Democrats is complicated by a potentially awkward fact: Romney opposed that amendment as a gubernatorial candidate in 2002. At the time, Romney said he felt the amendment went too far because it would have outlawed domestic-partner benefits for gay couples, as well as gay marriage, and said he would vote against it.

I would think not:

  • Massachusetts law (separate from the constitution) defined, and still defines, what marriage is in the state.
  • Massachusetts law, which has yet to be revised, says that marriage is one man and one woman.
  • Any attempt to mandate the extension of the perquisites of a marriage, such as access to employer-provided “spousal” benefits, would run smack up against the state’s current and unrevised definition of what a valid marriage is, and, absent a legislature-passed redefinition, would be unlawful on its face.
  • The domestic-partner benefits section of the attempted 2002 amendment thus appears to have been redundant and unnecessary.

It seems to me that the governor could have supported the entire 2002 amendment, redundancy and all, with no legal impact. As to political impact on the 2002 gubernatorial election campaign, well, that may be another matter …..


UPDATE, Nov. 24 — In the course of reviewing press coverage, I found that a statement I originally made in Part 2, namely that “everyone” knew that legislation had to be enacted within 180-day time frame the SJC suggested (“suggested” IS the correct word) for same-sex marriage to legally take effect in Massachusetts, was incorrect.

Though there may be more, I found just one exception, in the December 5, 2004 Boston Globe, in a statement made by Democrat Thomas M. Finneran, who was at the time the Speaker of the Massachusetts House of Representatives (bold is mine):

Finneran, who until yesterday had not spoken publicly on the historic Nov. 18 ruling, said he sees three options for the Legislature: a constitutional amendment to ban gay marriage, a civil unions bill for same-sex couples, or doing nothing and letting the ruling stand. He has not decided which approach he prefers.

It appears that no one asked Mr. Finneran why “doing nothing” would “let the ruling stand.”

In light of the content of Part 2, I am at a loss as to how “doing nothing” would, as Mr. Finneran claims, “let the ruling stand.”

Mr. Finneran has since left the Massachusetts House, and, besides other employment, is the morning drive talk radio host on Boston’s WRKO-AM. Perhaps someone can call in to “Finneran’s Forum” and ask him.

UPDATE 2, Nov. 24: Here’s an interesting question — In this complete list of Romney’s Executive Orders, where’s the one that tells everyone involved in the Executive Branch how Goodridge is to be implemented? The answer appears to be that he had those involved “just do it.” Even aside from the lack of legislation, is that legal?

UPDATE 3, Nov. 24: Now let’s look at some of the training program slides I am told the state used to prepare township clerks statewide for the implementation of Goodridge (click to open full-sized document in a new window; insurmountable problems are noted after each slide):


The full slide show (PDF) is here (saved at BizzyBlog host for fair use and discussion purposes).

A Taxing Matter: New York State v. Derek Jeter

Filed under: Taxes & Government — Tom @ 11:15 am

Tuesday, a subscription-only Wall Street Journal editorial commented on the tax “troubles” of baseball’s Derek Jeter:

The Empire State claims Mr. Jeter dodged income taxes for 2001 to 2003 and that it’s owed millions, plus interest. Number 2 says he lives most of the year at his primary home in Tampa, Florida, and that he snowbirds in New York to play ball.

Who can blame him? Florida has no personal income tax, while New York’s rate for the top bracket is 6.8%, rising to 12.15% in New York City (including temporary surtaxes that expired in 2005; the combined rate is now 10.5%). That makes for one of the worst tax burdens in America — and politicians are proud of it. Mayor Michael Bloomberg boasts that his city is a “luxury good” for which everyone should happily pay higher taxes.

….. New York doesn’t claim that Mr. Jeter has avoided taxes on the salary he’s earned in-state — i.e., his 10-year, $189 million Yankee contract. New York’s complaint is in pursuit of the additional millions a megastar like Mr. Jeter makes from endorsement deals and the like, as well as from his investments.

….. According to court filings, state auditors don’t dispute that his primary residence was in Florida before 2001 or after 2003, or even that he spent most of the year down south over the target period. Rather, they’re employing the more subjective “domicilery (sic) test.” They point to Mr. Jeter’s Manhattan apartment, his “numerous public statements professing his love for New York,” and allege he has “immersed himself in the New York community.” Gosh.

There is a five-pronged test for domicilary, according to this law firm web site:

  1. maintenance of a home
  2. active business involvement
  3. time spent in the state (which is supposed to be independent of the so-called “183-day rule” — but, in reality, auditors usually do a day count similar to the 183-day rule)
  4. location of near and dear items (auditors look for items of significant value as well as items with sentimental value)
  5. location of family

Point by point, as I see it:

  1. Jeter’s primary home is in Florida (it is likely that this Wiki reference to his living in New York is false). Though he does have a Trump Tower residence in Gotham, he has had the Florida home much longer. Apparent advantage to Jeter.
  2. Jeter’s professed “immersion” in the community is likely charitable (Turn 2 Foundation), doesn’t involve business, and is mostly handled by other people. Advantage Jeter.
  3. Jeter surely has knowledgeable advisers, and presumably knows better than to spend too much time physically in the state. Advantage Jeter — but if I’m wrong on time spent, throw the book at him.
  4. Most “near and dear” items are probably in Florida, even though the NY Daily News reports that the taxman disagrees (uh, how would they know?). The “sentimental value” provision could tilt the conclusion. Advantage unclear.
  5. Jeter is single, and I believe his parents and siblings still live outside of New York. Not relevant.

Obviously, I don’t have all the facts, but it seems that the state and city are attempting to intimidate Jeter into ponying up big bucks with bad PR — because the shortstop’s defense, as on the ball field, looks pretty good. The original New York Daily News article about this says he’s “cheating.” The appearance of an article like that doesn’t just happen, and the characterization is probably wrong. If Jeter really is in the Empire State less than 183 days a year, this is a legitimate disagreement on a matter of law, and even if he loses, it will not mean that he was “cheating” — he was, as is his right, taking a position based on his and his advisers’ interpretation of New York State tax law. But I think the state will strike out on this one.

The better question in all of this is why the state and city don’t lower their income tax rates so that “evil rich people” like Jeter might want to live where they work, and spend more of their money in the local economy.

Couldn’t Help But Notice (112307)

This sure stayed under the radar (bolds are mine):

Greg Ballard just a few months ago was an obscure Republican mayoral nominee without a prayer, some scoffed, of unseating a well-funded, two-term incumbent.

Today, he’s the mayor-elect of the nation’s 13th-largest city, a tax opponent held up for admiration by President Bush, and a lesson to political incumbents everywhere of what can happen if they don’t mind the mood of the voters.

Ballard beat Democrat Bart Peterson 51 percent to 47 percent to become the first challenger in 40 years to unseat an Indianapolis mayor.

The 52-year-old retired Marine Corps officer never doubted himself.

”I know half the city doesn’t believe it when I said I always believed. I mean, I always thought we were going to do this thing,” he said.

What happened in Indianapolis was a classic taxpayer revolt in which voters took out their frustrations on the man at the top.


More invisible news: a guilty plea by a major player in the Oil for Food scandal:

A Switzerland-based oil trading company has pleaded guilty to paying $13 million in kickbacks to the Iraqi government in violation of the U.N. oil-for-food program’s rules, the Manhattan district attorney, Robert Morgenthau, announced yesterday.

Vitol S.A. allowed the kickbacks to continue between June 2001 and September 2002 but did not report them to the United Nations, according to a release from Mr. Morgenthau’s office.


Walter Williams, a member of it, is a “Greatest Generation” dissenter.


When it comes to movies about Iraq and the War on Terror coming out of Hollywood, it’s bombs away, at least domestically:

The Robert Redford movie “Lions for Lambs” has been a box-office disappointment. It grossed $6.7 million during its first weekend earlier this month, placing it fourth behind “Bee Movie” ($25.6 million), “American Gangster” ($24 million) and “Fred Claus” ($18.5 million).

The latest on “Lions for Lambs” in the US is here (links in this para may require free registration). No way it gets past $15 millions before its run ends. But the foreign box office is $20 million, meaning that the “hate America” crowd is getting its red meat. Thank you, Robert Redford.

Another Iraq War movie, “Redacted,” may end up being the Mother Of All Flops of any genre:


Do the math: $25,628, divided by 15 theaters, divided by 4 showings per day (likely average), divided by $10 per ticket, is 43 people per showing. Ouch.

Carnival Barking (112307)

Filed under: News from Other Sites — Tom @ 9:20 am

The 92nd Carnival of Ohio Politics, assemblage courtesy of Pho, is here.

Boring Made Dull’s 38th on Econ and Social Policy is here.

Positivity: Veterans Day 2007 Marks One-Year Anniversary of Innovative Little Caesars(R) Veterans Program

Filed under: Positivity,US & Allied Military — Tom @ 6:00 am

Three years ago today, the Robbie Doughty story (second story excerpted below) appeared in USA Today. That story led to an amazing program.


DETROIT, Nov. 12 /PRNewswire/ — Veterans Day marks the one-year anniversary of the Little Caesars Veterans Program, which has enabled nearly two dozen veterans to transition to new careers as Little Caesars franchisees in the past 12 months. “It has been a terrific year for Little Caesars in several areas and one of our very exciting achievements has been the success of the Little Caesars Veterans Program,” said David Scrivano, president, Little Caesar Enterprises, Inc.

The Little Caesars Veterans Program provides business opportunities to veterans as they transition to civilian life or seek a career change. It offers honorably discharged service-disabled veterans who qualify as Little Caesars franchisees a benefit of up to $68,000. Honorably discharged non- service-disabled veterans who qualify as Little Caesars franchisees are eligible for a benefit of $10,000. Currently, more than 1,350 inquires have been made about the program.

“Little Caesars feels that it’s important to recognize the contributions veterans and their families make to our country, and thank them for their service,” said Scrivano. “Veterans can bring many capabilities to our business, and we feel that their skills are a good fit for our operating model.”

Inspiration Creates a Unique Program

Little Caesars founder and Marine, Michael Ilitch, read about Army Staff Sergeant Robbie Doughty, who lost his legs while serving in Iraq, and was impressed with his attitude and strength of character. After getting to know Doughty, Ilitch felt that he could be an entrepreneur. Wanting to show his appreciation, Ilitch gave Doughty a Little Caesars store, which he runs in his home town of Paducah, KY with his business partner and veteran Lloyd Allard. Ilitch was inspired by Doughty’s story to do more, and asked the Little Caesars management team to develop a program that would provide business opportunities to more veterans. The result is the Little Caesars Veterans Program.

….. The U.S. Department of Veterans Affairs recognized Ilitch for the dedication and great patriotism he demonstrated through the Little Caesars Veterans Program. On September 17, 2007, the Honorable R. James Nicholson, Secretary of Veterans Affairs, presented Ilitch with the Secretary’s Award, the highest tribute given to a private citizen by the United States Department of Veterans Affairs, in Washington, DC.

“In addition to providing business opportunities for veterans, Mr. Ilitch also wants the Little Caesars Veterans Program to demonstrate to other business leaders that they, too, can create programs within their organizations to make a difference for veterans,” said Scrivano.

For example, the Little Caesars Veterans Program has inspired Virginia- based Zero’s Subs to create a similar program to help veterans become business owners. …..

Go here for the rest of the EarthTimes story.

Here is the original USA Today story — From Washington’s Walter Reed Army Medical Center (HT Control Congress):

Soldier finds new meaning in Thanksgiving
Posted 11/23/2004 8:11 PM; Updated 11/23/2004 8:38 PM

WASHINGTON — Army Staff Sgt. Robbie Doughty has no complaints. Not about missing Thanksgivings with his family for most of the last decade. Not about spending half a year in the hospital.

And not about losing his legs after an ambush in July in Iraq.

“I’m just thankful for my family, my friends, and that my recovery has gone so well,” says Doughty, 29, of Paducah, Ky. “When I think about Thanksgiving this year, I’m just so grateful that I’ve received such excellent care from so many people. Everybody’s so well taken care of here.”

Here is the Walter Reed Army Medical Center. Doughty sits in a model apartment in the hospital’s occupational therapy ward and reflects on what Thanksgiving means to him. Patients, many who lost arms and legs, use the rooms to learn again how to open a door, take a shower or pop a pizza in the microwave.

“It used to be that I’d numb myself to Thanksgiving and holidays,” Doughty says. “You got so used to missing them. It’s different now because of the injury. Everything’s different.”

It’s different as well for many of the 9,326 U.S. troops that the Defense Department says have been wounded since the invasion of Iraq in March 2003. At Walter Reed, more than 3,600 soldiers have been treated — 881 with battle-related wounds. The facility is currently caring for 47 hospitalized soldiers, plus 200 others as outpatients.

Since Doughty was in junior high school, he remembers wanting to be in the Army, in part to satisfy a taste for adventure.

He found it.

Doughty joined the 10th Mountain Division at Fort Drum in New York, served on a peacekeeping mission in Haiti in 1994 and became an Army recruiter. One of the young soldiers he brought in was his brother John, now a military policeman.

“Then Sept. 11, 2001, happened, and I kind of felt on the sidelines” as a recruiter, he says. “I was ready to get back into it.”

As a member of the 3rd Battalion, 5th Special Forces Group, Doughty arrived in Iraq in May. He was based in the Sunni Triangle, the hotbed of the insurgency.

His unit’s top goal was training the Iraqi national guard. But as an intelligence specialist he also helped track bombmakers and terrorists. They caught some, and Doughty felt his unit was making a difference.

“The vast majority of Iraqis we met want to get on with everyday life, get jobs and an income,” he says. “Just a small percentage are terrorists. It was kind of slow going at first. It takes time to build up reliable contacts.”

Victim of an ambush

On July 8, Doughty rode in the passenger seat of the lead Humvee in a three-vehicle convoy. The vehicles had no armor or doors so soldiers could quickly get out during a mission. The troops left early, hoping to beat the 120-degree midday heat and deliver laptop computers and a vehicle about 50 miles south of Samarra.

“We were on the Samarra bypass when we were ambushed,” he says. “A 155mm-mortar round hit us, just behind where I was sitting. I knew my legs were hurt bad, but I avoided looking at them.”

Doughty remained conscious. He recalls medics applying tourniquets to his legs, dressing gaping wounds, injecting him with morphine and intravenous fluids.

“Special forces medics are like doctors on a battlefield,” he says. “I had every confidence in them to fix me up.”

A helicopter whisked him to a combat surgical hospital in Balad, Iraq. Hours later the phone rang at his parents home in Calvert City, Ky.

A captain told his mother, Diane Doughty, that Robbie had been badly hurt. A half-hour later the captain called back and asked if he could come to their house.

“That sent up a red flag,” she says. “When he showed up with another man who turned out to be a chaplain, I thought we’d lost him. We found out God had spared Robbie’s life, but he had lost both his legs.”

Lt. Col. Tim Williams, Doughty’s commander, visited Doughty at the hospital in Balad, three hours after his legs had been amputated — his right leg above the knee, and his left just below.

“He’s coming around for the first time, and his demeanor was still so positive after such a catastrophic injury,” Williams says. “We’re all so proud of him. He’s the kind of guy we want serving our country. He has the kind of attitude I only wish more people could have.” …..

Go here for the rest of this story.