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

January 10, 2012

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.


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