>>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.
I enjoyed your post in spite of the little shot you took at the end. It was better reasoned than some of the others, and it met the points head on. I disagree with most of your conclusions however, but let me tell you why, taking your points in seriatim:
“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.”
I disagree with you. The marriage laws were in place. The tax laws were in place. We agree on that. You say the tax laws would require legislative action, while the marriage laws would not. That is where we disagree. If the Supreme Court is merely adjusting the rates as in my hypo, no legislative action would be required as a procedural matter.(Of course, for a court to raise taxes is an outrageous ultra vires act, but procedurally, it would require no legislative action.) As far as the marriage laws are concerned, while they were in place, and the definition of marriage is a legislative prerogative, whether the age of consent, degrees of permissible consanguinity, child custody, alimony, inheritance etc.). To change the marriage laws to comport with this ruling would require legislative action because it is fairly complex to overhaul a state’s entire domestic relations and estate code. I think the best evidence that legislative action would be required is the Goodridge opinion itself, which gives the legislature 180 days to amend the code. I read this as a sheepish Supreme Court, realizing it had usurped a legislative prerogative, committing this task to the legislature, hoping the legislature would get them off the hook, because they recognized their own lack of procedural competence to effectuate the new “right” they had found. The legislature declined to do so, but Governor Romney did. He should have called the Court’s bluff, in my opinion.
“Romney never needed an order. Once the stay expired, the Court’s ruling stood.”
Here I take issue with you. This was a declaratory judgment. It is not self executing. Someone, presumably the plaintiffs, would have had to go back to the Court and ask for an order, which would have been nightmarish to fashion. If the legislature had passed a law ratifying Goodridge, the legislators would have had to face the people at the polls and many of them would be gone even in Massachusetts. I am not sure what you mean when you say the Dem legislature might have thrown him under the bus. If you mean to impeach him, I rather doubt it, because he would have held held the moral, political and legal high ground. If you mean that they would have said bad things about him, that is part of his responsibility.
“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.”
In fact, the Court did legislate here, using the rubric of the equal protection clause, which is a notorious vehicle for judicial activism. It was within its power to give the advisory opinion, but it could not craft a remedy without infringing on the prerogatives of another coequal branch. They really had an opinion, but no method to enforce it, because of the separation of powers. I believe that Governor Romney could have, and should have, told them that he could not implement this opinion without legislative action. I would be really curious to have seen what the Goodridge Court next move would have been. The bone that I have to pick with him on this issue is that he let them off the hook.