Skip to comments.Former Vatican Ambassadors, pro-family advocates misrepresent Romney record on defense of marriage
Posted on 05/10/2012 7:42:43 PM PDT by xzins
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 Romneys 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 Vanything having to do with marriage according to the Mass Constitution separation of powers is the purview of Governor and the Legislaturethe 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 states 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 didnt 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 states 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.
… 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. Hes 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 Governors 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 courts decision before he exercised his duty as Governor to enforce the courts 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 constitutions 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 Courts 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 Courts infamous Dred Scott case the nations 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 States 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. Romneys 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 Courts opinion was, as the court itself acknowledged, for the Legislature to take such action as it may deem appropriate in light of [the courts] 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.
So, you’d rather have another 4 years of Obamalamadingdong.
Is that your final answer?
The RNC doesn’t have to do anything. The only ones who can make us lose are people like you. Obama is going to lose in a landslide. A LANDSLIDE because our nominee is someone like Romney. Like it or not...GET INVOLVED IN YOUR LOCAL REPUBLICAN PARTY AND MAKE SURE REPUBLICANS DO WHAT THEY SAY THEY ARE GOING TO DO..Get off your computer and get into action or shut the hell up.
Bob Seger said it best:
“Well you used to shake it down, but now you stop and think about your dignity”...
This isn’t beanbag. The point is to win.
178 days until the election.
Read Dr Titus’ letter above in the article.
I got the same phone call, also from a very nice lady, and I had the pleasure of telling her that I haven’t been a Republican since 1998, but if they would nominate a true conservative I would be more than happy to donate the maximum allowed under law. She graciously thanked me and bid me good evening, as I did likewise.
“What do posts like this accomplish please?”
The court had ruled that any distinction between gay couples and man-woman couples was null and void in the law. the 180 days was a court-imposed arbitrary limit on the lege to act. But after that date, the court ordered massachusetts to accept gay couples requesting marriage licenses no matter what.
The idea that Romney could have defied this supreme court order is lunacy. the idea that Romney is to blame for gay marriage because he didnt defy the court order, even though at this time he vocally opposed it and supported a referendum to overturn it, is even more absurd.
And btw if you want to find out what happens when you defy a court order like this, google judge roy moore. where is he today?
My final answer... As much as I despise obamalamadingdong at least he won’t be doing what he will do with my vote and my blessing. Voting for mittens would mean that he would do the SAME AS OBAMA with my vote and blessing. Please, please, please try to see the difference. As bad as obama is, was and will be he has not signed any permanent weapons bans into law as mittens already has. How does any clear thinking, Constitution loving American vote for mittens? If we are doomed to living through the second war of northern aggression then so be it but it will not be brought about by a manchurian candidate having my vote! I will only be voting down ticket and proud to do so.
ROFLOL Do you really think your hyperventilating hysteria is going to affect me? The RNC pushed this baby killing goon on us and I’m not buying. The local Republican Party isn’t going to change that.
Ive read the history, Romney opposed gay marriage that is historical fact.
Do you have problems with truth about your candidate?
He came out today in favor of gays adopting your kids.
What is his position today despite his on-again-off-again support of gay marriage?
He says that gays can adopt your kids but they can’t marry. He won’t let them be together, but he will give them your children.
What a guy!@
I will cut you some slack for using the proper Southern name for the Civil War, but I completely disagree with your reasoning. SAME AS OBAMA?
OK, let’s walk through this: one is a totally avowed socialist POS who wants to destroy our country, the other is a wimpy RINO with nice hair.
Total hate for America vs. weakass RINO. I will not sit this one out. I’m in the WEEK OLD DEAD SKUNK IN THE MIDDLE OF THE ROAD PARTY and will be there at the polling place with a clothespin on my nose.
Your choice, my choice.
Could you please link me to where it says Romney has EVER supported gay marriage?
(P.S. I read the other link. You do realize it contradicts your post's assertion he did not have the power right? The attached clip shows (my guy) Santorum stating both the legislature and the governor did have the power.)
Dude, I got bigger stuff to worry about than homo marrying. I’m thinking about the end of America, and I won’t help that happen.
You OK with helping Barry get another 4? Not me. It will be the end of the Republic. Mitt getting in just means I have to listen to people like you rag him for 4 years and I think I can deal with that.
Blah blah blah society is sick, I don’t know a single politician opposing gay adoption. Romney did oppose gay marriage in Mass. and tried a lot of strategies to stop it. He failed. All these tortured legal analyses about how the Mass. Supreme Court decision was meaningless are just that, tortured logic.
I don’t like what Romney said about gay adoption, however please post here an opposition to gay adoption by maybe - Newt Gingrich. I will be impressed to read it.
I believe obummer is the ultimate vermin. That’s what I believe and I will crawl on broken glass to get myself to the pols ad vote for a dogcatcher to get that creep out of the WH. You on the other hand believe the ultimate vermin enemy of the Constitution community moron is A OK w/ you to stay on for another 4 years of his good time as your president. That’s the difference between us.
But you will not win.
Here’s my apology before you have to yell back. I certainly did find interviews in which Gingrich opposed gay adoption. Frankly, I think it’s more important than gay marriage as an issue because no one really has honestly evaluated the effects of having gay couples raise children. So I applaud Gingrich on this and I don’t agree with Romney’s quick statement taht he supports gays adopting.
However, for a multitude of reasons, Romney still gets my vote against Obama.
Romney personally installed RomneyMarriage, just like Romney DEATH PANELS.
What SEVERE CONSERVATISM. /s
Note Romneys use of improper executive authority. [The Romney Way]
"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, ...
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."
"....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."
Whats more preferable? Lets see:
Romney: for Ryan budget, against SSM, supports 2nd and NRA, lower tax rates, supports ‘self-deportation’, supports Roe v Wade overturn, will pass conservative Congress bills, vetoed hundreds of liberal bills as governor.
Obama: Socialist, for SSM,gun-grabbing “fast and furious”,big-gov, wants higher tax rates, spent $6 trillion in new debt,open borders,abortionist [D] who will stop conservative bills with his vetos.
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?
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