The Missing Governor (From 2004 Romney's Failure to Stop Same-Sex "Marriage")

Since 12 A.M. this morning, clerks in liberal enclaves in Massachusetts have been issuing marriage licenses for couples of the same sex and perhaps even pronouncing them married. All of this proceeds by a schedule handed down by the “Gang of Four,” the slim majority of the Supreme Judicial Court of Massachusetts that struck down the traditional laws of marriage last November. The four judges, speaking for the Court, gave the legislature six months to alter the laws, or come up with some accommodation, which would permit the marriage of gays and lesbians. The state senate tried to float an arrangement for “civil unions,” but the court, in an advisory opinion, rejected it.

The legislature, convened as a constitutional convention, labored to produce a constitutional amendment that would confine marriage to a man and a woman. After prolonged sessions and strains, the convention produced an amendment that contains, at once, an affirmation of traditional marriage and a provision for “civil unions,” which gives gays and lesbians every right and privilege of marriage except for the name itself. That is a formula likely to explode the whole device. As the judges in Massachusetts revealed, that kind of combination will be read as invidious discrimination, and so a federal judge would find a ready lever for striking down the constitutional amendment in Massachusetts, even if it eventually passes.

EXECUTIVE FAILURE

Against a plural body like a legislature, a single executive could act as force to impart focus and energy. But as the legislators splintered along several lines, Romney preserved a decorous silence in public, while he sought counsel, and mulled over schemes, in private. The range of things he could do in combination with the legislature was considerable–if there was a will to do them.

THE LINCOLNIAN MOVE

Clerks in some of the counties would have been resistant, but Romney could have invoked the Massachusetts constitution (Part 2, ch. III, art. 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.”

Romney could have pointed out here that the Supreme Judicial Court had actually violated the constitution by taking jurisdiction in a class of cases that the constitution had explicitly withheld from the courts. But as Romney contemplated his moves here, he could feel the drag even on the part of conservative lawyers. Lincoln’s argument, they thought, was no longer widely understood, and any challenge to the court in this way was likely to set off tremors, even in their own circles. In that moment of holding back, it became clear that even conservative lawyers had come to incorporate, and accept, the premises that gave to the courts a position of supremacy in our constitutional schemes.

The conservative lawyers argued that new plaintiffs would form a class and seek an injunction from the court to enforce the holding in the Goodridge case. But they seemed to forget that the legislature has the authority to shape and define the power to issue injunctions. Massachusetts had long ago followed the lead of Congress in restricting the power of judges to intervene with injunctions to break strikes mounted by labor unions. And yet, as the dispute over gay marriage wore on, it became clear that the legislature was having trouble enough forming a majority to affirm marriage between a man and a woman. It was too much to imagine that the politicians would be seized with the convictions of old that moved them to confront the judges, even when the court was usurping the powers of the legislature.

THE REQUEST OF A STAY

In such a case, the governor could go to the court on his own, in a pro se action, representing himself. But while Governor Romney went to law school, he did not make his career in litigation. He seemed to be struck with a certain diffidence now, a fear of appearing fumbling, especially if he were suddenly opposed by an attorney general experienced in litigation and opposed to his course of action. The governor could have gone in, of course, with the attendance of aides; and if the cause was as important as he had professed to believe, he should not have been put off by vanity, or by a fear of appearing less than commanding. Whether he was artful or not, the matter would indeed be before the court, and it would have to be addressed.

But the governor receded once again. He had been fueled, in his moral concern, by his faith as a Mormon, and yet that background became now but another motive for receding. He did not wish to be accused of imposing his “beliefs” as public policy. And once again, in a reflex now familiar in our politics, political men bearing “beliefs” did not show the confidence that their beliefs were supported by “reasons” which could be explained and defended in a public forum.

Romney has now tried to put a brave face on things: If the legislature was not inclined to defend its own policy in the courts, he would at least try to insure that the new form of marriage in Massachusetts would not spill over into the rest of the country. He drew from dusty files a statute of 1913, which forbade registrars from issuing licenses of marriage to couples from other states in unions that would not be permitted under the laws of their states.

THE FEDERALIST SOLUTION?

But, of course, the federalist solution would soon be rendered hollow if judges in the separate states simply follow the path of the judges in Massachusetts. It hardly makes sense to speak of leaving this matter of marriage to people in the separate states if the judges, state or federal, are free to take matters out of the hands of the voters and the legislators they elect. That sense of things moved a small group of legislators in Massachusetts to make one more try before the Supreme Judicial Court: The legislators invoked the constitution of Massachusetts and reminded the judges that their own court, in cases old and recent, had affirmed the point that questions of “marriage, divorce, and alimony” lay outside the province of the courts, unless they were explicitly assigned by the legislature. And until the legislature settles a policy, the governor and his council were given the primary authority to deal with this class of questions.

THE MISSING GOVERNOR

Is it now too late? That isn’t altogether clear. Today has become the decisive date only because of the holding of the Supreme Judicial Court. But this argument over the error of the court, or the wrongful taking of jurisdiction, does not expire on May 17. That argument is still open, which means that it could be plausible for the governor to make that move at any time. But why should he make that move when receding has now become his signature tune? For one thing, he has now put himself out on the limb with his avowal to enforce the law that restricts visitors coming in to marry from other states. He will find himself now in a tangle of arguments and litigation, of orders given and ignored, of postures taken with no discernible effect. Through the din a certain clarity may finally break through on these rudimentary points: Why should he subject himself to such embarrassment in arguing over a law so uncertain in its character and its operation? If he were going to open himself to controversy and litigation, why not finally take his stand on the constitution itself, where his own authority on matters of marriage is clearly spelled out? And in taking his stand on the constitutional question, he would move to higher ground, with the burden of challenge shifted to the courts. As the arguments and recriminations fly freely about, he can in effect blow the whistle, invoke his authority, shift the focus dramatically, and make it clear–to the relief of the public–that a grownup is finally in charge.

It might have been a striking appeal to the south and west in the Republican party, that there was a northern governor, aligned with them in their moral perspectives, and with the resolution to act. If Romney recedes yet again, he confirms a rather different sense of his party: that the Republicans are ever more comfortable in talking about taxes but lose their confidence to speak when it comes to addressing the questions of deepest moral consequence, the questions that establish the terms of principle on which we live.

An Open Letter Regarding Governor Mitt Romney
January 11, 2007

Dear conservative friends:

We hail from a broad spectrum of organizations dedicated to fighting for the pro-family agenda in Massachusetts. As you know, Mitt Romney became the governor of our state in 2003. Since that time, we have worked closely with him and his excellent staff on that agenda.
Some press accounts and bloggers have described Governor Romney in terms we neither have observed nor can we accept. To the contrary, we, who have been fighting here for the values you also hold, are indebted to him and his responsive staff in demonstrating solid social conservative credentials by undertaking the following actions here in Massachusetts:

• Staunchly defended traditional marriage. Governor Romney immediately and strongly condemned the 2003 court decision that legalized “same-sex marriage” in our state. More importantly, he followed up on that denunciation with action – action that saved our nation from a constitutional crisis over the definition of marriage. He and his staff identified and enforced a little-known 1913 law that allowed them to order local clerks not to issue marriage licenses to out-of-state couples. Absent this action, homosexual couples would surely have flooded into Massachusetts from other states to get “married” and then demanded that their home states recognize the “marriages,” putting the nation only one court decision away from nationalizing “same-sex marriage.”

• Worked hard to overturn “same-sex marriage” in the Commonwealth with considerable progress to date. In 2004 he lobbied hard, before a very hostile legislature, for a constitutional amendment protecting marriage – an amendment later changed by the legislature to include civil unions, which the Governor and many marriage amendment supporters opposed. Working with the Governor, we were successful in defeating this amendment.

• Provided active support for a successful citizen petition drive in 2005 to advance a clean constitutional amendment defining marriage as the union of one man and one woman.

• Rallied thousands of citizens to focus public and media attention on the failure of legislators, through repeated delays, to perform their constitutional obligation and vote on the marriage amendment.

• Filed suit before the Supreme Judicial Court. The Governor’s suit asked the court to clarify the legislators’ duty to vote and failing that, to place the amendment on the 2008 ballot. That lawsuit, perhaps more than any other single action, was by all accounts instrumental in bringing pressure on the legislators to vote. The vote ultimately was taken on January 2, 2007 and won legislative support – clearing a major hurdle in the three year effort to restore traditional marriage in the Commonwealth.

• Fought for abstinence education. In 2006, under Governor Romney’s leadership, Massachusetts’ public schools began to offer a classroom program on abstinence from the faith-based Boston group Healthy Futures to middle school students. Promoting the program, Governor Romney stated, “I’ve never had anyone complain to me that their kids are not learning enough about sex in school. However, a number of people have asked me why it is that we do not speak more about abstinence as a safe and preventative health practice.”

• Affirmed the culture of life. Governor Romney has vetoed bills to provide access to the so- called “morning-after pill,” which is an abortifacient, as well as a bill providing for expansive, embryo-destroying stem cell research. He vetoed the latter bill in 2005 because he could not “in good conscience allow this bill to become law.”

• Stood for religious freedom. Last year, Governor Romney was stalwart in defense of the right of Catholic Charities of Boston to refuse to allow homosexual couples to adopt children in its care. Catholic Charities was loudly accused of “discrimination,” but Governor Romney correctly pointed out that it is unjust to force a religious agency to violate the tenets of its faith in order to placate a special-interest group.

• Filed “An Act Protecting Religious Freedom” in the Massachusetts legislature to save Catholic Charities of Boston and other religious groups from being forced to violate their moral principles or stop doing important charitable work.

All of this may explain why John J. Miller, the national political reporter of National Review, has written that “a good case can be made that Romney has fought harder for social conservatives than any other governor in America, and it is difficult to imagine his doing so in a more daunting political environment.”

We are aware of the 1994 comments of Senate candidate Romney, which have been the subject of much recent discussion. While they are, taken by themselves, obviously worrisome to social conservatives including ourselves, they do not dovetail with the actions of Governor Romney from 2003 until now – and those actions have positively and demonstrably impacted the social climate of Massachusetts.

Since well before 2003, we have been laboring in the trenches of Massachusetts, fighting for the family values you and we share. It is difficult work indeed – not for the faint of heart. In this challenging environment, Governor Romney has proven that he shares our values, as well as our determination to protect them.

For four years, Governor Romney has been right there beside us, providing leadership on key issues – whether it was politically expedient to do so or not. He has stood on principle, and we have benefited greatly from having him with us.

It is clear that Governor Romney has learned much since 1994 – to the benefit of our movement and our Commonwealth. In fact, the entire nation has benefited from his socially conservative, pro-family actions in office. As we explained earlier, his leadership on the marriage issue helped prevent our nation from being plunged into even worse legal turmoil following the court decision that forced “gay marriage” upon our Commonwealth.

For that our country ought to be thankful. We certainly are.

Sincerely,

Rita Covelle President, Morality in Media Massachusetts
Richard Guerriero Immediate Past State Deputy, Massachusetts State Council, Knights of Columbus
Mary Ann Glendon Learned Hand Professor of Law, Harvard Law School
Kristian Mineau President, Massachusetts Family Institute
Dr. Roberto Miranda President, COPAHNI Fellowship of Hispanic Pastors of New England
James Morgan President, Institute for Family Development
Joseph Reilly President, Massachusetts Citizens for Life
Thomas A. Shields Chairman, Coalition for Family and Marriage

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.