December 17, 2011

Mitt Romney’s Same-Sex Marriage Betrayal, Part 2: What Romney Really Did

Filed under: Taxes & Government — Tom @ 9:49 am

Part 1 — Rick Santorum Exposes the Truth
Part 3 — Romney Did It Because He Promised He Would

__________________________________________

Last night, I:

  • Noted how people who should (and in my opinion do) know better like Maggie Gallagher, Ann Coulter, and others are defending Mitt Romney’s indefensible same-sex marriage record when he was Massachusetts Governor.
  • Showed and transcribed Rick Santorum’s mostly correct critique of Romney’s handling of the Massachusetts Supreme Judicial Court’s November 2003 Goodridge same-sex marriage “ruling” at Thursday’s GOP primary debate in Iowa.
  • Noted that after the debate, Romney dared Santorum to back up his claims. As Steve Deace described it, “Romney issued a challenge that Santorum wouldn’t be able to find any respected legal authorities that would agree with his characterization of Romney’s (same-sex marriage) culpability.”

So here we are. This is the part where we take Mitt Romney’s goose and thoroughly cook it.

As carried at Deace’s place, here’s “respected legal authority” Number 1 (bolds are mine throughout this post):

When I contacted Mat Staver, Founder and Chairman of Liberty Counsel, for his response to the exchange, he sent me the following statement:

“Rick Santorum’s statement during the debate about Mitt Romney’s actions regarding same-sex marriage are correct. I litigated in Massachusetts by filing a suit in federal court to prevent the implementation of same-sex marriage. Due to federalism issues with the federal courts being asked to block a state court action, the federal courts were constrained not to get involved.

Having spent considerable time reviewing the Massachusetts Constitution, drafted by John Adams, I can say that the Massachusetts Constitution is unique with respect to marriage and domestic relations by vesting the authority over marriage to the Legislature. The provision is explicitly set forth in the Massachusetts Constitution. The Massachusetts Supreme Judicial Court ruled that the Legislature should act within a certain time to implement same-sex marriage, but the Legislature refused to act. Yet, Gov. Romney on his own went ahead of the Legislature and forced the implementation of same-sex marriage. Not only was he not required to implement same-sex marriage, the Massachusetts Constitution gave him no authority to do so. Gov. Romney should not have acted until the Legislature acted as that is the body vested by the Massachusetts Constitution with authority over marriage.

Sen. Rick Santorum was right and Gov. Mitt Romney was wrong.”

Staver is also the dean of Liberty University Law School. His work on behalf of constitutional law has been endorsed by three of the most pivotal figures in Christian political activism, who have since passed away — D. James Kennedy, Jerry Falwell, and Bill Bright. Staver is a trustee of the Supreme Court Historical Society. He’s written 11 books. He may or may not meet Gov. Romney’s definition of a respected legal mind, but his bio begs to differ.

Staver identifies the one place where Santorum was not correct.

Santorum said:

So Governor Romney was faced with a choice. Go along with the Court or go along with the Constitution and the statute. He chose the Court, and ordered people to issue gay-marriage licenses and went beyond that. He personally, as Governor, issued gay marriage licenses.

Staver makes it clear that Romney didn’t “choose the Court.” Instead (“Yet, Gov. Romney on his own went ahead of the Legislature and forced the implementation of same-sex marriage”), Romney acted totally on his own without any constitutional authority whatsoever and imposed same-sex marriage on Massachusetts by fiat. He forced Justices of the Peace in the Bay State to Issue “Partner A/Partner B” marriage licenses instead of ones reading “Husband/Wife.” I am told that a small number of JPs resigned rather than do so. And yes, he indeed, as Santorum said, “personally … issued (some of those) gay marriage licenses.”

Again at Deace’s place, let’s get to “respected legal authority” Number 2, who in no uncertain terms reinforces the points made in the previous paragraph, and takes it further:

Dr. Herb Titus was the founding dean of the School of Public Policy at Regent University, and later served as the founding dean of Regent Law School. Before that he studied under Dr. Francis Schaeffer, and graduated from Harvard Law School. Titus has worked with the U.S. Justice Department, and is admitted to practice before the U.S. Supreme Court. His book “God, Man, and Law” is a must-read for anyone interested in preserving the rule of law for the next generation.

I contacted Dr. Titus on Friday morning for his response to the Santorum-Romney exchange. He replied back with the following:

“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.

… 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 (Court’s) 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.

The only quibble I have with Mr. Titus is his use of the word “order.” Yes, it’s technically correct, but when you say, as the Goodridge court did, that it wanted “the Legislature to take such action as it may deem appropriate in light of [the court’s] opinion,” that was hardly an “order” as laymen understand it. If the Legislature, either consciously or out of sheer laziness, chose to do nothing, it was still in compliance with the court’s “order” (really an “opinion” or “suggestion”) as written. Roughly 2,950 days after the ruling, the Massachusetts legislature has as far as I can tell still not followed the Court’s suggestion. (Update: Because of that lack of legislation, it is a constitutionally valid fact that no same-sex marriage license issued in Massachusetts, even the one issued to the couple involved in the Goodridge case itself, is valid or enforceable.)

Memo to Mitt: If Mat Staver and Herb Titus aren’t “respected legal minds,” Thomas Edison and Henry Ford were pathetic tinkerers who accomplished nothing meaningful. Consider your goose thoroughly cooked.

Deace goes on to cite a July 1997 WorldNetDaily item which included more expert opinion and critically important truths:

Experts: Credit Romney for homosexual marriage
‘What he did was exercise illegal legislative authority’

Some opponents contend that with those actions, Romney did no more or less than create the first homosexual marriages recognized in the nation.

And (Herb) Titus agrees.

(Hadley) Arkes (cited earlier in the item as “a professor of jurisprudence at Amherst,” and who is also a universally recognized “respected legal mind” — Ed.) wrote about the situation in National Review shortly after the implementation of the law. He called the developments a “dramatic abuse of power by the Supreme Court” and a disappointment from the legislature.

But, he wrote, “a deeper failure must go to the man who stood as governor, holding the levers of the executive. … Against a plural body like a legislature, a single executive could act as force to impart focus and energy. … The range of things he could do in combination with the legislature was considerable – if there was a will to do them.”

“In the Goodridge case in Massachusetts, Romney could have announced that he would respect the decision for the plaintiffs allied in the case, but he might have pointed out that the case was not a ‘class action.’ He could have insisted then that clerks should issue licenses of marriage only to couples who have come through comparable litigation and received a comparable order from a court,” he said.

Romney also could have invoked the state constitutional provision that, “All causes of marriage, divorce, and alimony, and all appeals from the Judges of probate shall be heard and determined by the Governor and Council, until the Legislature shall, by law, make other provision.”

Arkes also suggested the governor could have gone to court himself, creating the circumstances in which the “court could be compelled now to face precisely the issue that the judges had skirted: whether the majority of four had themselves violated the constitution of Massachusetts.”

Remember, the Massachusetts Constitution says that “All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.” In other words, the Supreme Judicial Court of Massachusetts had no legal authority to even take the case — but no one, including Romney’s predecessor as Governor of Massachusetts, stopped them.

Now let’s look at Romney’s assertion Thursday that Rick Santorum’s rundown, as well as everything outlined in this post and the previous one, are somehow “unusual,” and that “everybody in Massachusetts, and the legal profession in Massachusetts, and my legal counsel” believes that “I fought it (the decision) every way I possibly could.”

This is a lie. There’s no way to sugarcoat it. There can be no doubt that Mitt Romney knows better:

  • He and his people know darned well who the outspoken Hadley Arkes is (Amherst College is in Massachusetts).
  • He and his people received a wide range of legal advice from legal experts in and out of Massachusetts during the critical post-Goodridge period. They had to know that there were and still are plenty of people who were then and today remain vehemently opposed to what he chose to do.
  • Finally, in 2006, as noted here, “A letter signed by 45 Massachusetts and national pro-family leaders including the late Paul Weyrich, Sandy Rios, Gary Kreep, Robert Knight, Linda Harvey, Rev. Ted Pike, Peter LaBarbera, Gary Glenn, Brian Camenker, John Haskins, etc. was sent to Romney in December 20, 2006, urging him to use his power as Governor to reverse himself on homosexual marriage.” So much for the “everybody in Massachusetts” — “respected legal authorities” or otherwise — agreeing with what he did.

Thursday, Mitt Romney said that he would be “happy to be corrected.” Consider it done, pal. Are you happy?

As readers will see tomorrow morning in Part 3, it gets even worse.

That’s because there is credible and never-refuted evidence that Mitt Romney entered office as Governor of Massachusetts fully intending to react to the Goodridge decision as he ultimately did, proving even further that he’s inarguably and objectively unfit to be president of the United States.

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10 Comments

  1. [...] No we don’t Mitt — and neither do many “respected (and correct) legal authorities,” ones you told a national audience will make you “happy to be corrected.” I will cite them tomorrow morning in Part 2. [...]

    Pingback by BizzyBlog — December 17, 2011 @ 9:53 am

  2. Mitt Romney completely ignores the separation-of-church-and-state principle.

    He so scorns the 31 million Americans who are lesbian, gay, bisexual, or transgender, that he this week proposed 3 new classes of citizenship: 1st class with full marriage rights (opposite-sex couples only); 2nd class with partial rights (legally wed same-sex couples, 2004-2012 only); and 3rd class with no rights (everyone else). His policy is that LGBT people are only partial citizens, entitled to only partial protection from SOME discrimination, but never full protection from all discrimination.

    He thinks that his religion’s supernatural superstitions about marriage should also become the national law for everybody, including the vast majority who don’t even belong to or believe in his religion. He believes that discrimination against some people is just fine, so long as it’s his religion doing the discriminating. That’s not a democracy; that’s a theocracy.

    Comment by Ned Flaherty — December 17, 2011 @ 2:47 pm

  3. #2, not that I’m a Romney defender, but are the 45 or so states in which same-sex marriage is not legal “theocracies”? Yes or no?

    And as to all the past civilizations which only recognized one-man, one-woman marriages — were they all “theocracies” too? Yes or no?

    I will only post a response from you if you answer each question “yes” or “no” before you attempt to explain yourself.

    Your 31 million number is sheer fantasy based on the 10% myth.

    The number is more like 1.7% of the over-18 population, or 4 million, according to a “demographer-in-residence at the Williams Institute on Sexual Orientation Law and Public Policy, a think tank based at the University of California, Los Angeles” (i.e., he’s gay-friendly).

    Comment by TBlumer — December 17, 2011 @ 3:01 pm

  4. #2, What a load of crap. This has nothing to do with “separation of church and state” (which by the way is a false concept both legally, historically and constitutionally as I will now point out for FOR THE 100 MILLIONTH TIME!), and everything to do with the legal institution of marriage, which cannot be redefined or made into something it’s not just because you feel like doing so. You can’t marry animals or children or corpses or family members either, does that also equal “theocracy?” And please, get a new argument, I’m sick of the reactionary, tired and shrill cries of “theocracy!” from gay marriage defenders whenever gay
    “marriage” is opposed. It’s so fanatical and trite. The reasons for not allowing it are clear both from a religious AND secular point of view. Opposing gay marriage is not theocracy, it’s common sense.

    Comment by zf — December 17, 2011 @ 5:05 pm

  5. [...] 2 is at this link, with the meat of the matter. Essentially, Mr. Blumer demonstrates what everyone who pays attention should know; that Santorum is [...]

    Pingback by Polyticking, Willard Mitt Romney | Extrano's Alley, a gun blog — December 18, 2011 @ 6:49 am

  6. Rather than delving into the question what Romney did or didn’t do I’d like to adress your contention that the MA-SC was violating the Constitution by even hearing this case. I think you move on shaky grounds.
    The plaintiffs essentially argued that the existing provisions concerning marriage violated Art. CVI of the MA Constitution specifically that “[e]quality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”
    To determine whether this conflict exists and in case that it exists to resolve it, is arguably within the Courts power. To adress conflicting rights in the Constitution is one of the roles of any Supreme Court.
    In this instance the SC resolved the question by redefining the meaning of the word marriage:

    “We construe civil marriage to mean the
    voluntary union of two persons as spouses,
    to the exclusion of all others. This reformulation
    redresses the plaintiffs’ constitutional
    injury and furthers the aim of
    marriage to promote stable, exclusive relationships.
    It advances the two legitimate
    State interests the department has
    identified: providing a stable setting for
    child rearing and conserving State resources.
    It leaves intact the
    Legislature’s broad discretion to regulate
    marriage.”

    Comment by EMS — December 18, 2011 @ 8:19 pm

  7. #6, except for the fact that the MA Constitution gives the legislature and the governor sole discretion over matters of marriage, and in the spirit of original intent (just as you would have to do with the US Constitution) you would have to ask if John Adams et al thought of marriage as anything other than one man and one woman. Of course, they didn’t, and it was NOT within the court’s discretion to redefine a word.

    It IS within the Legislature’s discretion if they wish, and it IS within the Governor’s discretion if he wishes to sign off on what the legislature has done. But the SJC had NO right to claim jurisdiction because it felt the need to redefine a word. That is/was NOT within its power. By claiming to have that power and taking the case so it could redefine a word with a clear original understanding, the Court’s majority committed an impeachable abuse of its power.

    Comment by TBlumer — December 18, 2011 @ 10:54 pm

  8. #7: The Constitution doesn’t say that its words have to be solely interpreted according to the intent of its creators. That justices have to do that is the opinion of one in conservative circles very influential legal school.

    Your description has it backwards btw: They didn’t claim jurisdiction because they wanted to change the meaning of one word, but because there was a real or perceived conflict between two articles within that constitution. They chose to resolve that conflict by redefining what marriage means. That the court thereby overstepped its power is merely your opinion not fact.

    Comment by EMS — December 19, 2011 @ 8:35 am

  9. Sorry, EMS, it ain’t so.

    As Amy Contrada commented at Part 1, the judicial branch in MA was in essence proscribed from interfering, and it’s not a matter of opinion:

    +++++++++++++

    John Adams clearly delineated the separate powers of the three branches in the Mass. Constitution:

    … the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. – Part I, Article X

    The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it. – Part I, Article XX

    In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men. – Part I, Article XXX

    All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision. – Part II, Ch. III, Article V

    Amy Contrada, Author, “MITT ROMNEY’S DECEPTION: His Stealth Promotion of ‘Gay Rights’ and ‘Gay Marriage’ in Massachusetts”

    ++++++++++

    It was up to the legislature, with the ultimate possible assent of the executive to deal with the issue the judges “perceived” to be a conflict. It was NOT, under MA’s Constitution, within their jurisdiction to deal with. That’s a matter of MA Constitutional fact.

    Comment by TBlumer — December 19, 2011 @ 3:01 pm

  10. [...] Mitt Romney’s Same-Sex Marriage Betrayal, Part 1: What Romney Really Did     [...]

    Pingback by Mitt Romney: The Anti-Mormon Family Values Mormon GOP Presidential Candidate Trojan Horse For The Radical Homosexual Agenda – WARNING: ANOTHER LIAR Wants To Be President Of The U.S.A. « Gospel of Yahusha Ha'Mashiach, The Gift of Eternal L — December 20, 2011 @ 8:06 pm

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