Posted on 05/10/2012 7:42:43 PM PDT by xzins
!!!!
http://bostoncatholicinsider.wordpress.com/
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 embassadors, 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 admits we are a bit “over our skis” on this one, and we are relying on information provided to us from a number of sources and legal experts with permission to republish their information. Our point here is that The Boston Pilot published information that was inaccurate.
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 and will cover this with an addendum to the main post (so come back to read more later). 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 1870 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.”
As BCI understands it, 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 leaked to BCI suggest they believed 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. No laws ever changed. Yet Romney proceeded 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.
Apparently both Gov. Romney and the signatories of this letter are 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.
We must pause here for now. More coming later.
There is no plan to beat him. The RNC decided that.
I don’t know you but I agree with you 100%. Enough said.
Thanks, Patton.
Do you have a link to the Forbes’ article about Mr Auto Flip/Flop?
The only viable plan is to UN-elect Obama. and the only way to do that is to elect Romney.
And if you see NO difference between the two, as bad as Romney is, you are an idiot.
What is YOUR plan?
yawn.
I had assumed that the liberal media would have been ok with Mitt....but in the last few days I’ve realized that the liberals apparently are going to melt down if their boy loses.....so that would be Mitt’s only saving grace.....we know he’s not a conservative....but they seem to think he is......so at least Mitt winning will make their heads explode.....that’s some small consolation.
Wrong. There is a plan to beat him, though not ideal. It is to elect Romney in his place.
Except that damned fools who want to cut off their nose to spite their face will sit home and bellyache.
Can you say to me, “I give you my word, Mitt Romney is a Solid Conservative.”?
I knew before the primary ever started that the MSM would support Romney during the primary and would turn against him once he was the presumptive nominee. I also knew they would have more than enough ammo to destroy him. Couldn’t happen to a nicer liar.
If these two are the best we can do, this country is doomed.
The funny things is that your community moron is so degeneratively wicked and anti-Constitutionally disgusting that no matter how hard folks like you try, Americans won’t be held back from going to the pols and kicking him out of our WH and replacing him w/ a Republican or a non-obamba or a dogcatcher.
Past your bedtime. Drink some warm milk and check back in the morning.
No votes for gun-grabbing baby killers. Got it? No spite, no sitting at home. I will vote for a third party conservative if my ballot has one and down ticket in any case. I don’t vote for trash. Period!
So, you believe Romney is a conservative. Is that right?
So you believe attacking Romney helps anyone except for democrats, how?
Let’s see... For the last 3 1/2 years we have had a Consititutionally ineligible, US hating, Marxist loving, usurping freak running the county and you think that “electing” a “lighter shade of fail” is going to make a difference? Really? Are you that dense? Look, the horse has left the barn and the barn has burnt to the ground. There is no barn nor horse to be saved. It is 3 1/2 years too late. To not see that is to display your delusion to those who can. What part of “it’s too late, the damage has been done” don’t you understand? You think that a baby killing gun grabbing gay marriage granting POS is the answer? If so, you and I are NOT on the same side.
Just like this post does. Massachusetts was ordered by the supreme court to do this within a 180 day deadline. On the 180th, only after the legislature failed to act in accordance with the court, did Romney issue the order.
"Romney was a leading voice against gay marriage as Massachusetts governor. The courts legalized gay marriage in the state during his tenure, but he supported a constitutional amendment to define marriage as the union of a man and a woman."
-Fox News
From wiki:
"On November 19, 2006, Gov. Mitt Romney led a rally against the tactics that the Massachusetts legislature used to delay and possibly prevent a vote on the same-sex marriage ballot initiative in front of the Massachusetts State House. Romney said he would ask a justice of the state Supreme Judicial Court that week to put the initiative on the ballot in case the legislators failed to vote on the initiative on the last day of the Joint Session, January 2, 2007 as required by the Massachusetts Constitution Amendments Article XLVIII (The Initiative, IV. Legislative Action on Proposed Amendments, Section 2. Joint Session)[17] Romney said, "The issue before us is not whether same-sex couples should marry. The issue before us today is whether 109 legislators will follow the constitution."
On December 27, 2006, the Massachusetts Supreme Judicial Court agreed unanimously with Romney's repeated assertion that Article 48 of the Massachusetts Constitution explicitly and unambiguously requires that the Massachusetts Legislature take a final vote on any and all voter initiatives placed before them, which includes the marriage amendment.
"After gay marriage became legal, Romney sought to enforce a statute banning state officials from marrying gay couples from other states. In a speech to conservatives last winter, Romney touted that move, saying he prevented Massachusetts from becoming the "Las Vegas of gay marriage."
-FoxNews
Romney and Obama are two peas in a pod.
It helps honesty and integrity.
The Washington Post in the article "Romney worked to reassure liberals" wrote:
“You need someone like me in Washington,” several participants recalled Romney saying that day in September 2002, an apparent reference to his future ambitions.Romney made similar assurances to activists for gay rights and the environment, according to people familiar with the discussions, both as a candidate for governor and then in the early days of his term.
Integrity enables us to recognize when we are violating our principles. Hypocrisy is when we refuse to publicly acknowledge that we are violating our principles.
They provide a handy link to post on threads where those of us still saying "no romney, no way" are being told "Mitt HAD to do it," Mitt lead the opposition to gay marriage". Proof of the delusion.
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