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.
>>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?<<
No, because the tax laws were already in place. To change the tax rates would require legislative action. The marriage laws were all in place in Mass. No changes needed be made.
>>And what if he had waited? Wouldn’t the Massachusetts Supreme Court have issued the order? Perhaps. We will never know.<<<
Romney never needed an order. Once the stay expired, the Court’s ruling stood. Should he wait for an order? I frankly don’t see the point. The Dem legilsature would have just thrown him under the bus.
>>>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.<<
I have studied Constitutional law. And read the Mass Constitution. And the Mass marriage laws. A court is perfectly within its limits in striking down a law that it sees as un-Constitutional. Further, the court did no legislating whatsoever. It struck down an existing law and ruled that other laws should apply to all equally.
>>>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.<<<
Right in part. But the legislature did define marriage. The laws were all in place. Read through Mass’ state laws regarding marriage. They’re all there, and all defined by the legislature. The Supreme Court ruled that one of these said rules violated the Mass Constitution—something perfectly in its power to do.
>>>This, in spite of the fact that when he had the power, not only did he do nothing<<<
*Rolls eyes* You obviously aren’t interested in the truth. Exactly what was Romney doing when he held rallies to allow the people to vote? Exactly what was he doing when he brought his case to the Mass judiciary that the Mass legislature was mandated to vote on the petition trying to bring a Constitutional vote before the people of Mass? Trying to force gay marriage on people? You really hurt your credibility with that nonsense. You know better, and yet you still play the dumb game for the point of what?
Listen, regarding the judicial philosophy that the Mass Supreme Court took in taking on that case, I won’t argue with you: I think they over-stepped judicial prudence in ruling as they did. They clearly went against what had been the will of the people and the Mass legislature in striking down that law. But as you know, when a court makes a ruling, it doesn’t necessarily do so on the grounds of enacting the will of the people.