Former Vatican Ambassadors, pro-family advocates misrepresent Romney record on defense of marriage

In our post yesterday, “Pro-family advocates misrepresent Romney’s record on life, marriage,” we talked about how the Boston Pilot had erred by publishing an endorsement of a political candidate on the front page of the archdiocesan newspaper (“Pro-family advocates defend Romney’s record on life, marriage.”)  Furthermore, the letter referenced in the article, and signed by former Vatican ambassadors, Mary Ann Glendon and Ray Flynn, and former Mass Catholic Conference head, Gerry D’Avolio, contains a series of incorrect statements or flat-out misrepresentations of facts and reality.

Yesterday we talked about the misrepresentations regarding the record of former Gov. Romney on emergency contraception. Today we discuss the misrepresentations on the issue of “same-sex marriage.”  BCI is relying on information provided to us from a number of sources and legal experts with permission to republish their information.

But in addition, it now appears to BCI that our own Catholic lawyers advising the archdiocese at the time on defense of marriage gave faulty advice that contributed to a surrender on this battle rather than a legitimate constitutional fight. We are assembling rather conclusive proof of that. Some of those lawyers are also now apparently giving political air-cover to Gov. Romney in his campaign instead of speaking the truth.

Among many issues with the letter is that the signatories said Romney “staunchly defended traditional marriage”, claimed he did not issue marriage licenses to same-sex couples, and “worked hard to overturn ‘same-sex marriage’ in the Commonwealth with substantial results.”

These issues could take days and many posts to cover, so BCI must take an abbreviated path. First, some background and then an explanation of what is inaccurate in the letter from Prof. Glendon, Ray Flynn and others.

The Goodridge Ruling

November 18, 2003: The Massachusetts Supreme Judicial Court ruled 4 to 3 in Goodridge v. Department of Public Health that the state’s ban on same-sex marriage was unconstitutional.  The court specified that the original marriage law banned homosexuals from marrying partners of the same sex as themselves. This law was left intact by the Goodridge ruling (“Here, no one argues that striking down the marriage laws is an appropriate form of relief.”)  The court gave the Massachusetts Legislature 180 days in which to “take such action as it may deem appropriate” following its November 18, 2003 ruling.

What the Massachusetts Constitution Says

The first place that “Boston Lawyer” suggested we look is to the Massachusetts Constitution, written in 1780 and the oldest written, still-governing constitution in the world, with clear separation of powers. Gov. Romney took a sworn oath to uphold. It says:

Part the First

Article X: “…the 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, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.

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.

Chapter 3, Article V.
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.

“Boston lawyer” said, “The simplest way for people to understand this is to just look at Chapter 3, Article V–anything having to do with marriage according to the Mass Constitution separation of powers is the purview of Governor and the Legislature–the SJC is banned by the state constitution from ruling on marriage.”

Articles XX and XXX of the constitution say the courts have no power to suspend laws or change the laws.  Article X says the people of the commonwealth are only bound by laws passed by the people they elect to the legislative branch of government, not judges.

Several lawyers and experts on this topic say that if Mitt Romney had just followed the Massachusetts Constitution–as he took an oath to do–he would have said two things–the court had no constitutional authority to rule on marriage, and only the legislature could change the laws. Since the elected Legislature never approved changes in the law to permit and legalize “gay marriage,” the Romney administration–Romney himself, his general counsel and Department of Health under his authority–had a constitutional duty to uphold the law on the books. Thus, they should not have directed town clerks to issue “same-sex marriage licenses,” and the people of the commonwealth should never have been bound by a supposed new “law” that really was never a law at all, and is not even a law today, despite popular misconception.

Here is the bitter irony and grave tragedy as we understand it.  Even the attorney for the gay and lesbian couples in the Goodridge case, Mary Bonauto, acknowledged in November 2003 that the legislature had to act to change the marriage laws before “same-sex marriages” were permitted, but it was Gov. Romney and our own Catholic lawyers who said that was not necessary!

MASSACHUSETTS COURT RULES BAN ON GAY MARRIAGE UNCONSTITUTIONAL (Nov. 18, 2003)

“While seen as a victory for gay rights advocates, the decision itself does not make it immediately possible for seven same-sex couples who sued the state to receive marriage licenses since the court left the details of the issue to the legislature.

Attorney Mary Bonauto, who represented the seven gay couples who sued the state, said the only task the court assigned to state lawmakers is to come up with changes in state law that will allow gay couples to marry by the end of the 180-day period.”

An undisputed fact is that those changes to state law never occurred. Lawyers tell BCI that the ruling was not somehow “self-executing” as emails from some of the Catholic lawyers advising the archdiocese leaked to BCI suggest they believed in 2004 and still believe today. Consider the following:

“He [Romney] placed the blame for the confusion on the Legislature, which has yet to follow a directive from the SJC to change the state’s marriage laws to reflect the legalization of same-sex matrimony.” ‘‘I believe the reason that the court gave 180 days to the Legislature was to allow the Legislature the chance to look through the laws developed over the centuries and see how they should be adjusted or clarified for purposes of same-sex marriage; the Legislature didn’t do that,’’ Romney said. Senator Bruce E. Tarr (R) of Gloucester, said he believes the Legislature will ultimately pass bills that will insert gender-neutral language into the state’s marriage laws in time for the May 17 deadline. ‘‘No one should interpret inaction thus far with the idea that no action is forthcoming,’’ he said

But, no action was forthcoming.  If the lawyer for the gay and lesbian couples said the law had to be changed, the SJC never changed the law, and Romney on April 16, 2004 was waiting for marriage laws to be changed, yet no laws were ever changed, then why did Romney proceed to order issuance of same-sex marriage licenses anyway in mid-May of 2004?  As BCI sees it, this is perhaps one of the most impactful “head-fakes” on society of all time–one which continues to this day.

This is not just the opinion of BCI and people who have fed us information.  A multitude of other sources, including constitutional law experts agree.

This blog reports the following from Mat Staver, Founder and Chairman of Liberty Counsel:

… 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.

Staver is also the dean of Liberty University Law School. Staver is a trustee of the Supreme Court Historical Society. He’s written 11 books.

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.

Here is what Dr. Titus said on this matter:

“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.  

After the debate, Mr. Romney stated to Mr. Santorum that he did all that he legally could to stop the implementation of the court’s decision before he exercised his duty as Governor to enforce the court’s decision requiring local officials to issue marriage licenses to same-sex couples. He issued a challenge to Mr. Santorum to find any qualified legal authority that would not agree with him. I have been asked to meet that challenge.

I am a graduate of the Harvard Law School. I am an active member of the Virginia bar and the bar of a number of federal courts, including the United States Supreme Court. As a professor of constitutional law for nearly 30 years in four different ABA-approved law schools, and as a practicing lawyer, I have written a number of scholarly articles and legal briefs on a variety of constitutional subjects; including the nature of legislative, executive and judicial powers and the constitutional separation of those powers. 

I am generally familiar with the Massachusetts Constitution, and especially familiar with that constitution’s provision dictating that no department shall exercise the powers that belong to either of the other two departments “to the end it may be a government of laws and not of men.”

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 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.

Clearly, Gov. Romney failed to uphold the Massachusetts Constitution. Apparently both Romney and the signatories of this letter are also misrepresenting what he did and did not do to protect marriage. Even worse is that a surrender of major proportion apparently happened under the watch of our own Catholic lawyers advising the Boston Archdiocese, and some of these lawyers apparently continue  to propagate misconceptions today for whatever reason, rather than speaking the truth.

BCI cares about the truth and believes faithful Catholics are entitled to hear that from our leaders.

17 Responses to Former Vatican Ambassadors, pro-family advocates misrepresent Romney record on defense of marriage

  1. 178mahwas@comcast.net says:

    1780 written not 1870

  2. BCI,
    Nice post! Thanks for referencing my comments. You’ve displayed mastery of a complex topic remarkably well!

    Here’s another example of how others agreed that the court did not “legalize” the same-sex marriages but instead knew something about their constitutional bounds and was asking the legislature to change the law:

    http://www.foxnews.com/stor/0,2933,103399,00.html#ixzz1j4EN9sby

    “They said, basically, to the Legislature, ‘we really think this is your job,’” Wendy Murphy, a former sex crimes prosecutor and victims advocate, told Fox News, adding that the court took an activist role in its decision but backed up enough to give the Legislature the authority to make same-sex marriages legal.”

    You may want to look for some writings by lawyers Hadley Arkes and Dwight Duncan (Boston.com blog, I think) on this same topic around the timeframe of May 2004.

  3. Liam says:

    The problem is that the Massachusetts constitution is not the federal constitution: the school of strict construction that was built around the federal constitution does not apply the same way at the state level. And especially to the MA constitution, which is the oldest extant. Point in evidence: the slavery cases that arose in the early 1780s in MA, whereby the MA judiciary freed slaves *without* compensation to their owners, while the state constitution pointedly did not address emancipation. This judicial lawmaking was accepted at that time. And the MA judiciary, especially in the ante-bellum period, had a long tradition of what might be seen as judicial lawmaking that would appear to be in tension with some of the constitutional texts you refer to; the judicial culture here was activist, to a considerable degree, and largely accepted. So reading the state constitutional text through the lens of the history of the interpretation of federal judicial power, while understandable, doesn’t really provide a silver bullet as desired.

  4. Arthur O'Leary says:

    BRAVO

  5. Michael says:

    Liam … enough of the nonsense. The words are plain enough for a third grader to read. Your post essentially says that the SJC has long been ignoring the Massachusetts Constitution. That doesn’t make their conduct legal. Romney’s brazen disregard of the Massachusetts Constitution didn’t make his conduct legal. Ask Judge Nolan (former SJC “conservative” judge) whether he ever thought that this argument BCI addresses “sweeps the rug right out from under the legs of gay marriage?”

    Liam … sorry to report to you … here in the US (including Massachusetts) JUDGES DO NOT MAKE LAW. The people do through their elected representatives. If the SJC actually changed the law, why then has the legislature had before it two competing bills (EVERY SINGLE YEAR since the opinion in Goodridge) — for and against — enabling same-sex “marrriage”? Why? … Because everyone (except for Maryanne Glendon, et al) knows that what happened in Massachusetts was a fraud of gigantic measure. They know the only way to clean it up is to get a bill to pass actually and legally authorizing same-sex “marriage.” Without one, the law has not changed and thus, only void marriage license have been produced. They have the same legal authority as a fake id.

    Now Maryanne knows this of course, but SHE MISSED IT and WILL NOT ADMIT IT. Lawyers refer to that as a conflict of interest — in addition to the conflict BCI pointed out (Glendon being the recent honoree of a Romney appointment to ironically uphold “Justice”).

  6. Stephen says:

    I believe there were 175,000 signatures collected in MA in order to put a referendum question on the ballot defining marriage as a one-man/ one-women entity. The legislature of MA ignored the mandate and the rest is history. Could Romney have single highhandedly stopped gay marriage in MA? No way. The cards were well stacked in both the judicial and legislative branch. Romney is a pragmatic yet imperfect politician, he does however appear to support the American way of life. As the likely Republican candidate he is facing the Obama political machine bent on reshaping the American political and economic landscape into a free lunch nation sliding to destruction. The current administration is also diametrically opposed to virtually every Catholic cause.

    Given the gravity of the current situation the legal minutia on BCI seems a bit silly. Besides…who the hell reads The Pilot anyway?

    • Stephen,
      Your comment’s accurate only re: the 175,000 signatures to put the referendum question on the ballot. On the rest, you’re wrong.

      Are you a lawyer who knows something about the constitution? Sounds like your’e not! Of course Romney could have stopped the train from going forward! He said on April 16, 2004 he was waiting for the legislature to change the laws, and they never did. What stopped him from waiting and just declaring that the legislature had failed to act, so he couldn’t do anything until the laws were changed?!

      You’re also missing an important dynamic of the Legislature from 2004. The House Speaker at the time, Tom Finneran, was a pro-life Catholic who was solidly in our camp. We also had Rep. Phil Travis and many others solidly on our side. Finneran helped get the first vote teed-up for the constitutional amendment despite the opposition. We almost won–it had 98 for and 100 against.
      http://www.boston.com/news/local/massachusetts/articles/2004/02/11/how_legislators_voted_on_finneran_backed_gay_marriage_amendment/

      Criticize him as you might for his corruption after that, but he was very much with the Catholic church on this issue.

      If Romney had said he had a sworn responsibility to uphold the constitution and as a result did nothing–as many constitutional law experts said he should have done–what would have happened? Even if the Legislature at the time had voted to change the language on marriage (which they probably didn’t have the votes to do), Romney could have vetoed their change, and they certinaly didn’t have the votes to override a veto. “Same-sex marriage” would have died–at least for a while.

      • Stephen says:

        I’m not a lawyer nor do I aspire to be one. The president of the Massachusetts Senate, Tom Birmingham purposely failed to call the constitution convention in 2002. This step was needed in order to amend the constitution to define marriage. As 37 states have done, 33 by legislative action and 4 by popular vote. As a petition signer it seemed pretty obvious at that time that the Catholic politicians in MA lacked fortitude on the matter and that gay marriage was on the way. And as we know – it was.

      • Stephen says:

        BCI,
        I’m sorry I just can’t help myself.

        Today:
        VATICAN CITY (Reuters) – Pope Benedict said Monday that gay marriage was one of several threats to the traditional family that undermined “the future of humanity itself.”

        …and the gut-less hack quasi-Catholic culture in Boston brought it to the world!

      • No need to apologize. BCI saw the same article–thank you for sharing it. Does this not validate the reason for our attention to this issue?

    • Stephen, Thank you for your comment. This post and the attention by BCI are because of what appears to be a large-scale deception and misrepresentation of the truth by multiple people, including prominent local Catholic leaders., and further enabled by The Pilot. BCI is focused on exposing such deception and communicating the truth. You are entitled to your opinion on the importance of this topic. BCI feels it is important enough to warrant the coverage we are giving it, but if you differ, feel free to return when we get to our next topic.

  7. [...] Ex-Vatican Ambassadors Misrepresent Romney Record on Marriage – Boston Cthlc Insider [...]

  8. Jack O'Malley says:

    BCI,

    You do great work in exposing the “lies and falsehoods” (who said that?) of the chancery. But, for those of us who don’t have the time to peruse, analyze and evaluate your increasingly protracted posts, would it be possible to provide a succinct executive summary either at the beginning or end of your articles? Such prolixity may well be worth the detailed read, but without a preadumbration of its congruity with the theory of a decadent ecclesiology in the archdiocese, it is hard to judge whether the time and effort are an efficacious use of one’s limited temporal resources. So many blogs, so little time. That sort of thing.

    All the best and keep up the excellent work.

  9. curious says:

    Not related to current topic:

    At some point please post, review, and analyze this
    article: Strong Catholic Identity Can Protect
    Religious Liberty

    By Patrick Reilly

    Source: National Catholic Register

  10. Alice Slattery says:

    Certainly the editor of The Pilot had to be aware of the fact that the actions and decisions of Gov. Mitt Romney, regarding his support for LGBT rights ,will easily be documented by the editors of Bay Windows. Already Hannah Clay Wareham,Associate editor of Bay Windows, is publishing documented statements made by Romney that shows
    even his decision that “he was no longer opposed to a repeal of “Don’t Ask,Don’t Tell”, the military’s ban on gay men and women serving openly.”(“Romney’s most recent denial of LGBT support latest in decades-long flip-flop”, by Hannah Clay Wareham, assoc. ed. of Bay Windows,Jan.11,2012) Wareham also includes evidence of Romney’s support for the Gay Pride Weekend as well as statements Romney made such as :”I will support and endorse efforts to provide those domestic partnership benefits to gay and lesbian couples.” Romney told Bay Windows in an interview published Oct. 24,2002.”.
    Is it possible that the editor of The Pilot and the leaders of the Boston Archdiocese who decided to run the Pilot article:”Pro-family advocates defend Romney’s record on life,marriage” by Michelle Bauman,Jan.6,2012, didn’t realize that the editors of Bay Windows
    have documented evidence of exactly what Romney did and said to advance the LGBT agenda in Massachusetts? Wait until Bay Windows shows how , during Romney’s administration, state money was poured into setting up the Gay Straight Alliance Clubs(GSA) in so many of our public high schools through funds channeled through Parents,Friends of Lesbian and Gays(PFLAG) to recruit students into supporting same-sex sexual activities and prevent any students from objecting to this recruitment out of fear of being charged with “harassing” and possibly being sanctioned with the “anti-bullying” charges. The leaders of the Archdiocese had to know that these actions have been documented and will be used.

  11. [...] are holding off on our final installment regarding the pro-family advocates and former ambassadors’ misrepresentation of the record of Mitt Romney to cover a different topic today.  (But we still suggest The Pilot remove the CNA propaganda and [...]

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