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.
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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 CNN.com (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.
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.
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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.
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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 …..
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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).
