>>>Why would conservatives support Mitt Romney who, as governor of Massachusetts, did more to promote gay marriage than anyone in America by acquiescing in the Mass Supreme Court ruling rather than refusing to implement it. Without Romney’s actions in support of it (by ordering the Clerks of Court to issue gay marriage licenses, when he was not required to do so), there would be no gay marriage in Massachusetts today.<<<
Let me ask you a very simple question: when that Iowa judge struck down Iowa’s DOMA act, why were gays allowed to marry? Was that the governor’s fault? And why and when did they stop ordering marriage certificates?
You need to study your Constitutional Law, I’m afraid, and stop reading Mass Resistance and listening to the likes of one particular poster on here. The answer is of course that there is nothing the Iowa governor could have done to stop the Iowa court ruling. The Iowa DOMA was the only thing standing between gays marrying in Iowa. The judge struck down the DOMA act because it “violated” the state’s equal protection and due-process clauses and declared that it was a Constitutional violation to deny gays the right to marry. Thus, had the governor of Iowa or Mitt Romney attempted to circumvent the judge’s ruling, they would have been held in violation of the State Constitution—the one document they vowed to execute upon taking office. And who is in charge of interpreting law and the Constitution? Under Marbury v. Madison and hundreds of years of English Common Law, the Courts.
I’ll also note that the only things that stopped the judges’ rulings in those two instance were 1) a judicial stay put in place for the state legislature to amend the situation in Mass or a higher court to hear the case in Iowa and 2) a Constitutional amendment defining marriage to supercede the judge’s opinion of what violated equal protections/due-process.
Romney had two option in Mass. One was to argue that the state did indeed have a vested interest in maintaining marriage between one man and one woman—probably not an argument that the liberal court in Mass would give much credence. Or he could do what he tried to do and put the issue of marriage up for a vote for the people by ballot. Romney went so far as to file suit against the Mass Legislature for refusing to bring the issue of a Constitutional ballot initiative before the people in a vote. He won that case. At that point, the first vote passed the Mass Legislature and the second one failed, so the peole of Mass never got to vote on the issue.
And I’ll tell you what I told another poster: if you think the state of Mass is unlawfully issuing marriage certificates to gay couples without the legal authority to do such, sue them. I hear these same contrite arguments over and over again, and they all show a general failure to comprehend how our government works. If the state of Mass was acting without the legal authority to do such, don’t you think someone would have launched a lawsuit by now?
What these windbags harping on Romney for “choosing” gay marriage are interested in is attacking Romney and little more. They’re certainly not interested in dealing with legal realities.
Romney did not have to do anything. Neither he nor the legislature had been ordered to do anything. And, if they had, he would have been well within his rights to refuse based on separation of powers since the state constitution commits the definition for marriage to the legislature. What if the state Supreme Court had found that the tax rates in Massachusetts were not progressive enough and that this constituted a denial of equal protection. Would the governor then be justified in ordering his revenue department to begin assessing the higher rates? Remember, he has not even gotten an order from the Massachusetts Supreme Court to increase the tax assessments. In this case, Romney did not even wait for the order. He went ahead and issued his own executive order to the Clerks to issue the gay marriage licenses.
And what if he had waited? Wouldn’t the Massachusetts Supreme Court have issued the order? Perhaps. We will never know. But, had they done so, Romney would have been under no greater compulsion to obey such an order than he would be to raise taxes at the court’s order. The refusal would be based on the separation of powers doctrine, since both the the definition of marriage (and the levying of taxes)are legislative functions, committed to the legislature in the state constitution, and may not be usurped by the Supreme Court.
I think you need to study constitutional law. The Courts may not arrogate to themselves legislative or executive functions under the a tripartite system such as ours. In fact, the non-delegation doctrine even forbids the legislature from trying to delegate its powers under the Constitution to another branch. So the Massachusetts legislature could not even cede its authority to define marriage (or raise revenue) to the Supreme Court if it wanted to.
In a word, Romney would have been on very solid footing, constitutionally and politically, to refuse to obey an order, if in fact he had received one. He did not wait for the order. He went ahead and began to implement the Supreme Court’s declaratory judgment, which did not order anyone to do anything, and began ordering the licenses to be issued. He thus allowed gay marriage to become a fait accompli in Massachusetts, in spite of the fact that the Constitution commits this responsibility to the legislature. I am not going to repeat every argument I made on the other post, which I link to in post 31.
In Massachusetts, the state supreme court had issued what amounted to an advisory opinion. It had no power under the state constitution to enforce it, because the power to define marriage is vested in the legislature and the enforcement of any such laws is an executive branch function. Romney should have told the Court that he was powerless to act unless and until the legislature redefined marriage. But he precipitously began to order the issuance of the licenses. When a case involves the separation of powers between coequal branches, a completely different dynamic is at work. The Supreme Court is not interpreting the law, when it arrogates to itself authority committed by the Constitution to another branch. Show me a case that says this constitutes interpretation. I can show you many nondelegation cases, which forbid one branch from trying to delegate its functions to another.
You suggest that, if a citizen believes the state of Massachusetts is unlawfully issuing marriage licenses to gays, that citizen should sue. Unfortunately, the citizen would, in all likelihood, lack standing to bring such a suit.
I have a hard time understanding how you can say that others are making “contrite(?) arguments ../that show a general failure to comprehend how our government works.” Your post tells me you do not understand the Constitution, enumerated powers, the separation of powers, and constitutional interpretation (as opposed to infringement by one branch on the enumerated powers of another). (It really is not your fault. You suffer under the misapprehension that a Supreme Court (state or federal) is omnipotent, which is something you have been conditioned to believe by listening to the news. I suggest you read the Federalist Papers and Montesquieu. You might even try reading the Constitution of the United States from cover to cover once.) What is more disturbing is your candidate does not appear to understand the Constitution. I think that someone who aspires to take the oath, as President, to preserve, protect and defend the constitution of the United States, should have done a little better job preserving and protecting the Massachusetts constitution than Mitt Romney did.
And I take umbrage at the fact, that having contributed to the legalization of gay marriage in Massachusetts, Romney is now trying to recast himself as a defender of Marriage by promoting the FMA, which has no chance of passing any time in the next 30 years. (it could not even muster a majority in the Senate when the Republicans had 55 seats; It is decades away for a 2/3 majority) and further still from 3/4 of the state legislatures. This, in spite of the fact that when he had the power, not only did he do nothing, he actually moved to implement the opinion without even forcing the Supreme Court to issue an order. His actions have contributed to Massachusetts current status as the only state in America where gay marriage is legal.