Gov. Mitt Romney and his wife, Ann

While former Massachusetts Gov. Mitt Romney claims he did everything possible to throttle homosexual marriage in his state – his campaign now saying he took “every conceivable step within the law to defend traditional marriage” – several constitutional experts say that just isn’t so.

“What Romney did [was] he exercised illegal legislative authority,” Herb Titus said of the governor’s actions after the Massachusetts Supreme Judicial Court released its opinion in the Goodridge case in 2003. “He was bound by what? There was no order. There wasn’t even any order to the Department of Public Health to do anything.”

Titus, a Harvard law graduate, was founding dean of Pat Robertson’s Regent University Law School. He also worked with former Alabama Supreme Court Chief Justice Roy Moore, now a WND columnist, to draft the Constitution Restoration Act, which sought to take out of federal court jurisdiction cases that involved public officials that acknowledged God as the sovereign source of law, liberty, or government.

He’s written “God, Man and Law: The Biblical Principles,” and contributed to “Judicial Tyranny: The New Kings of America?” and has been admitted to practice before the U.S. Supreme Court and a multitude of state and federal court jurisdictions.

Romney’s aides have told WND that after four of the seven court members reinterpreted the definition of marriage, he believed he had no choice but to direct clerks and others to change state marriage forms and begin registering same-sex couples.

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

And Titus agrees.

“All the Supreme Judicial Court did was pronounce their judgment, declared their opinion,” he told WND. “Gov. Romney is like too many other governors in America. If a court says something, they jump,” said Titus, who also is a former candidate for vice-president on the Constitution Party ticket.

Others raising questions about the issue included Chris Stovall, senior general counsel the Alliance Defense Fund; Scott FitzGibbon, a professor of law at Boston College; attorney Phyllis Schlafly of Eagle Forum; and Hadley Arkes, a professor of jurisprudence at Amherst, who wrote about the situation in National Review shortly after the implementation of the law.

But the court’s decision conflicts with the constitutional philosophy of three co-equal branches of government: executive, legislative and judicial, Titus said. It also violates with the Massachusetts Constitution, which states: “The power of suspending the laws, or (suspending) the execution of the laws, ought never to be exercised but by the legislature…”

And it cannot even be derived from the opinion itself, asserts the pro-family activist group Mass Resistance, which says the decision did four things:

  • First, it acknowledged that the current law does not permit same-sex marriage.

    “The only reasonable explanation is that the Legislature did not intend that same-sex couples be licensed to marry. We conclude, as did the judge, that G.L. c. 207 may not be construed to permit same-sex couples to marry.”

  • Second, it said it is NOT striking down the marriage laws (among other things, the Massachusetts Constitution forbids a court to change laws)

    “Here, no one argues that striking down the marriage laws is an appropriate form of relief.”

  • Third, it declared that not allowing same-sex marriages is a violation of the Massachusetts Constitution.

    “We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.”

  • And fourth, given that the court is not changing any laws, the SJC gave the Legislature 180 days to “take such action as it may deem appropriate.”

    “We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.”

After the Legislature did nothing during the 180 days, Romney then took action “on his own,” the group said.

“Gov. Romney’s legal counsel issued a directive to the Justices of the Peace that they must perform same-sex marriages when requested or ‘face personal liability’ or be fired,” the group said.

To see what could have happened, several experts suggest a review of history.

Titus noted the 1857 Dred Scott decision, in which the U.S. Supreme Court had declared a slave was the property of the master, even if they both were physically in a free state. But President Lincoln rejected the authority of that opinion.

“[I]f the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made – the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of the eminent tribunal,” he said.

Lincoln simply declined to enforce the court’s opinion.

Stovall told WND that a much more recent confrontation between branches of government played out recently in Alaska.

After a statewide vote, executive branch officials refused to grant benefits to partners of state employees in same-sex duos; a lawsuit was filed and the state Supreme Court sided with the same-sex couples. The governor, Frank Murkowski, called the Legislature into special session, but lawmakers didn’t want to be hurried. They approved legislation that no such changes to the state benefits could be made until they met in general session.

The court then refused to extend its deadline, and lawmakers refused to yield.

The standoff collapsed when a new governor was inaugurated and without benefit of authorizing legislation, instituted the changes demanded by the court.

Mass Resistance leaders note that to this day, the Massachusetts Legislature still has not authorized a change in the state’s marriage laws

FitzGibbon also told WND the Goodridge opinion included no requirements.

“My opinion is that the Supreme Judicial Court’s decision in Goodridge v. Department of Public Health (2003) did not mandate that the executive branch issue marriage licenses to same-sex couples,” he wrote in an e-mail.

In a previously issued statement he made in support of the Federal Marriage Amendment, FitzGibbon warned of the immediate and dramatic social impact of such a decision, including a mandate by public schools in Massachusetts to teach homosexuality to children.

He noted one school dictum that said, “Administrators, teachers, parents and students are reminded that no action or speech will be tolerated that results in harassment, discrimination, bias or intimidation toward any member of our community for any reasons, including his/her sexual orientation or perceived sexual orientation.”

“The effect of the Goodridge decision has been to encourage the indoctrination of public school students in the merits of legalization of [same-sex marriage],” he said.

The result has been so extreme, FitzGibbon noted, it created circumstances in which school officials had police jail a parent who wanted to know when his 5-year-old son would be exposed to such teachings, in violation of the family’s religious beliefs.

He noted further that schools have adopted the philosophy that “has no obligation to notify parents of discussions, activities, or materials that simply reference same-gender parents or that otherwise recognize the existence of differences in sexual orientation … I expect teachers to continue to allow children access to such activities and materials..”

FitzGibbon said under the logic and arguments of the Goodridge decision, there is no reason why only pairs should be supported by law.

“Polygamy – the absurdity to which SSM advocates resisted being reduced in argument even a year or two ago – has recently come to be treated by leading authorities as eligible for legal recognition,” he said.

He argued for a consistent standard nationwide:

“When a state gets off the same page as the rest of the country as regards fundamental marital and sexual morality, and comes to indoctrinate children in ways that are anathema elsewhere; when a state begins to exclude or even prohibit the presentation of opinions which are not only acceptable but common and commonsensical in the minds of the rest of the country; and when a state goes even further along the road and develops a morality and jurisprudence of marital relationships which is unstable and divergent from tradition, it is appropriate to bring the matter forward for national discussion and common resolution. A nation cannot maintain a coherent social order while operating two marital systems,” he concluded.

The ADF’s Stovall agreed that the final resolution ultimately may have to be a Federal Marriage Amendment. Voters in 27 states already have taken such decisions away from their courts by adding the one-man-and-one-woman definition to their state constitutions.

“I do think a Federal Marriage Amendment would be the only across-the-board way to stop these repeated efforts to push this agenda in different states,” he told WND.

And he said there already is precedent for such a move. In the late 1800s, as Western states wanted to be advanced to statehood, there was considerable concern over the issue of Utah’s polygamy.

The result was a federal condition on statehood – a ban on polygamy.

“You have to this day at least three states, Utah, Arizona and New Mexico, with provisions in their state constitutions that say polygamy is forever prohibited – and if that provision is ever to be changed, it can only be done with the permission of Congress,” Stovall said.

“It was important to our nation in the late 1800s to have a uniform understanding of the very basic definition of marriage,” he said.

It was Eric Fehrnstrom, a spokesman for the Romney campaign, who told WND that Romney, “by virtue of being at ground zero in the culture wars … has been the most outspoken defender of traditional marriage in the country.”

He said Romney “took every conceivable step within the law to defend traditional marriage. He held rallies, he went to court, he lobbied legislators and he used the bully pulpit of his office to make effective public arguments in favor of marriage as the union of a man and a woman.”

Romney also enforced a 1913 law prohibiting couples from coming to Massachusetts to get married if they were barred from marrying in their home state, he said.

“The enforcement of this law stopped gay marriage from being visited on virtually every other state in the nation,” he said.

But Schlafly also has rejected the idea that Romney somehow was forced into action.

“[Romney] said: ‘We obviously have to follow the law as provided by the [Court] and … decide ‘what kind of statute we can fashion which is consistent with the law.’ But what ‘law’?” Schlafly asked. “There is no law that requires or even allows same-sex marriages.”

Fehrnstrom, however, noted that the “body of law” is more than just statutes passed by the legislature.

“It also encompasses opinions of the court. In our democratic form of government, the court is given the responsibility of interpreting the constitution. In Massachusetts, the Supreme Judicial Court found a constitutional right for same sex couples to marry,” he said.

But the Massachusetts court opinion itself noted that the justices recognized they were breaking ground into new definitions.

And Haskins, of MassResistance, noted that the Massachusetts Constitution dictates: “[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.”

Arkes 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.”

“Faced with a tension of that kind, it was even conceivable that one of the wavering judges of the four might peel away, and in peeling away, leave the issue back where it belonged ? in the political arena, with the governor and the legislators,” he wrote at the time.

Titus noted that the Massachusetts Constitution probably is the most specific in the nation on the separation of powers.

“It makes it very clear that … the judiciary doesn’t have either executive or legislative power,” he said. “It specifically rejects any claim of supremacy by any one of the branches over the other.”

But in the Goodridge case, the court said, “We are the supreme expositors on the constitution,” he said, even though the justices admitted reformulating the definition of marriage, “which means they have blatantly exercised legislative power.”

“It was a phony lawsuit … much the same way as they have show trials in the communist countries,” Titus told WND.

Stovall said, too, that the American people should be alert.

“In the last six months or so, we’ve seen legislatures not listening to the will of the people,” he said.

In Massachusetts, for example, lawmakers decided, even though there was a record number of petitioners, not to allow people to have a statewide vote on the definition of marriage.

In both Oregon and California, statewide votes defining marriage also have come under attack by lawmakers.

Titus noted on instance of an official who did defy a court opinion after determining it was not correct. That was the case of Judge Roy Moore, who defied a federal judge’s opinion that the display of the Ten Commandments on state property was illegal.

Moore ended up being removed from office by state officials.

Titus said it would have been good to see what would have happened if Romney had defied the court’s opinion.

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