Did Romney create same-sex marriage in Mass.?

Did Romney create same-sex marriage in Mass.?

Is Mitt Romney the champion of traditional marriage many people think he is? Does Massachusetts need a constitutional amendment to protect marriage? Is same-sex marriage legal in Massachusetts? The answers to these questions may not be what you think they are—or what the media and even some pro-marriage groups have led you to believe.

The group Mass Resistance has published on its web site an argument that it was Mass. Gov. Mitt Romney who started same-sex marriage in Massachusetts. Close readers of Bettnet will not be surprised by this claim, as it has been made several times by commenters on various threads.

The basic argument is that the Mass. Supreme Judicial Court, contrary to popular belief, did not strike down Massachusett’s marriage laws that only permit one man and one woman to marry. Instead it changed the common law meaning of marriage to include same-sex marriage. This does not change the law nor does it change the state Constitution. Only a constitutional amendment can change the Constitutional meaning of the word “marriage.” The SJC as much as admitted this when it acknowledged that it could not change the law itself, but instead ordered the Legislature to act within 180 days “as it may deem appropriate.” That means that Legislature could have chosen not to change the law. Instead, the Legislature did nothing: it didn’t change the marriage statute, didn’t repeal it, and it didn’t amend the state Constitution. Thus, the law remains on the books.

What Romney did

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  • The SJC (who cannot make law) told the Legislature they had 6 months to make a law.  The Legislature did nothing.  Six months later, Romney’s Department of Public Health began issuing licenses to same-sex couples.

    Their blog has another interesting aspect,

    Until January 2005, a couple could not marry without a physician’s certificate of health verifying that each person was free of certain STDs. But this part of the marriage statutes (MGL Ch. 207, Sec. 28A) was overturned when Gov. Romney signed into law House Bill #75 on Oct. 29, 2004. Why did Romney do this? Wasn’t the marriage health certificate an important part of controlling the STD epidemic? (Remember too, the DPH is under Gov. Romney’s authority.)

    Curiouser and curiouser…

  • Funny, no town clerks had the guts to ignore the Romney order.  If one did, and was prosecuted, then this would have really come to a head.

  • Liam said:  The SJC (unlike the federal court system) has a tradition of periodic judicial legislation dating back to the first decade of the Massachusetts Constitution

    Thank you Liam for your honesty.  Liam is admitting that the SJC was performing “judicial legislation.”  Interestingly enough, that is exactly what the pro-family lawyers claiming to protect the rights of conservative citizens in Massachusetts have said.  The Goodridge decision was “self-enacting.” “The SJC legislated a new law.” and “The ‘marriages’ are technically illegal.”  What nonsense.  Those comments, including Liams, are from people who have either never read the Massachusetts Constitution or don’t mind when it’s plain words are ignored as meaningless. 

    The Massachusetts Constitution is not hard to understand.  The Judiciary CANNOT legislate. Period.

    Article X.  …[T]he people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent.

    Article XX. The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature.

    Article XXX. 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.

    Living in a post-constitutional society doesn’t improve people’s lives over time.  Just ask our friends in the former USSR. 

    Thankfully, our SJC’s “tradition” of violating the constitution is about to end.

    The evidence against Romney is compelling and overwhelming.  What a fraud pointing at the judges and saying they were out of control and need to be stopped.  He is out of control and needs to be stopped.

  • John,

    Even if you are correct, is this the way to address the SSM issue?  What you propose is that opponents of SSM ultimately go to the same court that rendered the Goodridge decision and have it declare that, either:

    A – It never intended SSM to be the law of the Commonwealth without legislative action, or;

    B – It lacked the authority to render a decision in the first place.

    How likely is that?

    Also, if the SJC did not intend their decision to have full force and effect, why did they set a 180 deadline for action?

  • Liam,
    Any answer to John’s question about the actual words of the Constitution?  Are they meaningless?  Can the Supreme Judicial Court ignore the plain words of a Constitution when they do not comport with their beliefs in what should be or with their past (unconstitutional) traditions?

    Are we a constitutional government or not?

    Does it matter? 

    If your answer is yes, then how could
    a.  Goodridge – the Judiciary – create a new law—legislate
    b.  Romney—the Executive—enforce a new law not created by the legisltive branch (or suspend a current law not repealed by the legislative branch)?

  • Sean H.,
    A better question is, if the SJC has the legal authority to create new law, then why did they give the legislature any time to do anything?  Just declare it and that is that?  The answer to your question regarding why the 180 days is that the SJC was strongly suggesting (without requiring) the Legislature to change the marriage laws.  That is far different than actually changing them themselves.

  • Robert,

    If you look at the Michaud case that the court cites, the purpose of the 180 days is to allow the legislature time to change the law, and the executive to change procedures and regulations, to make the practical changes necessary to enable SSM to occur without some of the confusion that ultimately happened. If you read the decision and the Michaud case, it is clear that the SJC doesn’t think it has to give a grace period, but that it makes practical sense.

    Don’t get me wrong.  I am as big an opponent of SSM as you will find, and I think the Romney administration did have litigation alternatives that at least would have kept the issue more in the public mind, but I think attacking the SJC decision in this way is a non-starter, and may, in fact, lessen the chances of reversing the SSM course in the commonwealth.

  • John Haskins: Maybe you haven’t noticed but every time you post multiple comments in a row, all but the first one are automatically deleted. There is a rule—as you noted in your first comment—that you’re not allowed to post multiple comments in a row.

    The word limit on comments is very generous, but are designed to prevent people from monopolizing the conversation with a wall of text. Say what you have to say one comment at a time and then let the other person respond. That’s how a dialogue starts.

  • John,

    I am trying to be reasonable here and avoid the hysterics you display anytime anyone disagrees with you.  Put simply, even if you are right – so what?  Your point of view, and your approach, can only be made effective by the very court you are so upset with.  That seems to me to be a collosal waste of time.

    Since you are so adamant about taking a litigation approach to the problem, I hate to break it to you, but what the court “believes” the law is is a lot more likely to tell you your result than what you “believe” it is, even if you are right.

    If we take your approach that, as I said, requires relying on the very processes you say are being abused and people who you say abused them, we will all be arguing about this until SSM isn’t just allowed, but mandatory.

  • Posted by eleutherius on 10/17/06 at 03:13 PM
    Reason number 101 that the “law” in our country would disgust the founding fathers.

    It is not the law that would disgust our founding fathers.  Rather it is our lack of courage to speak the truth.  Our lack of inertia to fight for what our founding fathers were willing to die for and to go bankrupt over as many of them did. Our willingness to surrender.

    It is not that we have bad law, or a bad legal system.  It is that one side uses it to the fullest extent possible while the other side (conservatives) have bought into the false principle that it is much more important to be agreeable than it is to stand up and fight for your rights. 

    The true principle is: when people try to take your rights away, take them back. 

    Sean, being reasonable and trying to avoid the hysterics in an outrageous situation as we have here (all three branches of government ignoring thhe Mass. Constitution) is exactly why we are in this mess.  Sean if your point is, the SJC can violate the constitution, the governor can violate the constitution, and the legislature can violate the constitution and we the people have to accept it and can do nothing about it, you are dead wrong (and quite frankly, you ought to be embarrassed by your comments).

  • Robert,

    One simple question, since you are telling us who support the amendment that it is unnecessary.

    Who is going to rule on your case?

  • Honest judges and if they are not honest or they are biased, we need to have the intestinal fortitude to use the other parts of the Mass Constitution which foresaw such illegal conduct and remove any public official who is unfit for office.  Let’s say the SJC wants to involve itself in a cause concerning marriage.  Let’s not acquiesce in their blatant violation of the plain words of the constitution:  Article V. 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.

    The SJC therefore has no subject matter jurisdiction over that cause of action and thus has no legal authority to decide anything regarding that case. 

    Let’s say that Judge Margaret Marshall wants to sit on a case regarding same-sex “rights.”  Her previous decision to engage in that battle as a partisan (accepting awards from the GLBT legal community), makes her unfit to be an unbiased judge on that case.  She should have the honesty to recuse herself.  We should have the courage to call her on her dishonesty if she does not willingly recuse herself.

    It is fine for her to hold whatever beliefs she holds.  It is not fine to claim to be unbiased when the overwhelming evidence is that she is very biased on this issue.

    Let’s say the Governor had not been ordered by the SJC to do anything regarding marriage licenses.  Let’s say he swore to uphold the Constitution and laws of Massachusetts.  Lets say the marriage law does not permit same-sex marriage (read Goodridge).  Let’s say that the SJC never struck the marriage law and thus it continues to prohibit same-sex “marriage.”  Lets say that the Constitution explicitly says that the citizens of the Commonwealth are bound by no law other than one passed by the legislature.  Lets say that the legislature never changed the marriage law.  Let’s say that neither the SJC nor the legislature could change the meaning of the word marriage by statute or fiat because that word exists in the Constitution and only the citizens of the Commonwealth have the legal authority to amend (change the meaning of) the Constitution through constitutional amendment procedures well laid out in the constitution. Lets say that despite all of this Governor Romney took it upon himself to violate the marriage statute which does not permit same-sex marriage by ordering town clerks and JP’s to violate the marriage statute and certify and solemnize marriages not permitted by the statute.  What would you do?

    No . . . it is actually a null and void act because it was done without authority AND additionally it is an impeachable act.

    It is unacceptable to permit all three branches of government to ignore the plain meaning of the words in the Constitution.

    Sean is there any case in which you could imagine where the actions of either the Judiciary, the Governor, or the Legislature are without actual legal authority?  If so, what would you do in that situation?  Simply accept it and move on?  Hope it doesn’t happen again?  What is the remedy?  What is your solution.  Like it or not that is the situation we are in right now and it is frightening.

    The practical reason why the judges who will “hear our case” have the nerve to blatantly outright violate the constitution is because they know that most people are like you sean; too afraid to stand up and defend themselves.

  • I’m with Robert Paine.  What are we going to do in 3 weeks when the Legislature refuses to meet for the ConCon?  The amendment will be dead and we’ll be back to square one.

  • Marty said:
    but since they are the final arbiter of said Constitution,

    Brad said:
    The SJC has the final say on interpreting that LAW.

    Brad and Marty,
    with all due respect, you need to educate yourselves better on the problem at hand.  Neither of you have addressed the problem that the “law” as you say, has NEVER changed.  Romney is currently enforcing something other than the law.  Because the law of Massachusetts DOES NOT PERMIT SAME-SEX MARRIAGE. 
    Romney has a constitutional duty to enforce the law of Massachusetts.  The Marriage statute does not permit same-sex marriage and therefore he needs to remove his order to town clerk’s and Justices of the peace because his order to them is in fact a violation of Massachusetts law.

    And no matter how the SJC interprets the constitution, they cannot ignore the plain meaning of the words of the constitution.  They cannot claim that a statute which contains the meaning of marriage is unconstitutional where the constitution contaiains that exact word with that exact meaning.

    To claim that the judiciary has more power than the other branches of government, is to ignore the meaning of “separate but EQUAL branches of Government.”  To claim that the SJC’s decision here is like Row v. Wade is to fail to read both decisions, to fail to try to understand the exact factual situation that gave rise to both situations and to fail to understand that the Massachsuetts state Constitution is a different constitution than the US Constitution. 

    This is astounding.  It is evidence that you both have gone through law school where we were trained to not even look at the words of a constitution and where we were brainwashed to believe that the judiciary is the strongest branch of government.  A brief review of the history of our country indicates, however, the exact opposite.  The judiciary was intentionally created as the weakest branch of government and the only way for it to obtain greater power than it had been given was for the other branches of government and the citizens to silently acquiesce.

    The Governor, with respect to his duties, is the final arbiter of the constitution.  The legislature, with respect to their duties, is the final arbiter of the constitution.  The judiciary, with respect to a pending controversy between two parties is the final arbiter of the constitution, and finally, if you read the plain words of the constitution, you will realize that the true final arbiter of the meaning of the constitution is the citizenry. 

    For you both not to understand this is to give high accolades to the ABA accreditation system of indoctrination.  If you have any interest in getting unindoctrinated, read “Original Intent” by David Barton.  If you are anything like me, after you read his amazing explanation of our legal system, you will be astounded by how poorly your own legal career has been pursued having completely submitted to a basic set of false principles.

  • Glad to hear you are not a lawyer.  It means there is hope for you because you have not had the American Bar Association brainwashing that us lawyers have had the pleasure of.  Alan Keyes is a great American.  I just recently spent some time discussing How Romney went beyond the SJC decision and instituted gay marriage single handedly.  Ambassador Keyes was surprised to learn that fact. 

    Goodridge is UNLIKE Roe v. Wade, where (wrongly) the US Supreme Court found a right to privacy in the penumbras of the Constitution.  In Roe v Wade, the USSCt STRUCK DOWN the abortion statute finding it unconstitutional, here the SJC found that the marriage statute DOES NOT PERMIT SSM but DID NOT STRIKE DOWN THE STATUTE.  The SJC left the statute in place.  This is completely different then from Roe.  Thus, the marriage statute having never been repealed, stricken or changed in any way, continues today to NOT PERMIT SSM. 

    Then you might ask, how can town clerks and justices of the peace be certifying, solemnizing SS “marriages?”  The answer is simple.  Mitt Romney violated his oath of office, violated the constitution, and violated the marriage statute by ordering them to certify and solemnize these couplings.  Without Romney, SSM would not exist in Massachusetts (or for that matter in America).  And Romney could just as easily end same-sex “marriage” in Massachusetts as he began it.  It would be simple.  All Romney would need to do is to uphold his oath of office and the plain meaning of the words of the Constitution.