Sunday, July 10, 2005

Governor Romney and Gay "Marriage"

Back in April, MassResistance pointed out that gay "marriage" still isn't, and never has been, legal in Massachusetts. That's why Article 8 Alliance asked Rep. Goguen to file bill #654 in the Mass. legislature declaring the same-sex "marriages" null and void. We printed some of the testimony about that bill after the "surprise" hearing before the Judiciary Committee on April 12.

Along those same lines, National Review just printed a great letter from one Mr. Goulding of Lancaster (July 18 issue). He makes these same points, and asks people to take another look at Presidential candidate Mitt Romney's role in this disaster. He asks: Why did Gov. Romney say he had to "uphold the law" when there was no law? And to what extent is Romney responsible for the mess we're in? Herewith, the letter:

In light of John J. Miller’s article on Mitt Romney (“Matinee Mitt,” June 20), I believe it is appropriate to recognize that, in his capacity as head of the executive branch of Massachusetts, Romney seems to be enforcing a non-existent same-sex-marriage law. If this is true, Romney is at least as responsible for the existence of same-sex marriage in Massachusetts as chief justice Margaret Marshall of the supreme judicial court.

As most are aware, the Goodridge decision that Marshall wrote announced a requirement for same-sex marriage. What many do not know is that the Goodridge decision did not actually create same-sex marriage. To the contrary, Justice Marshall left the task of reforming the law to the appropriate branch of government: the legislature. She merely said that the absence of same-sex marriage violated the Massachusetts constitution.

At the outset of the Goodridge decision, Marshall correctly declined to interpret the law to provide explicitly for same-sex marriage. But she then considered the constitutionality of the absence of same-sex marriage. In a feat of seemingly impossible proportions, the absence itself was deemed unconstitutional. She ordered that the decision be delayed for 180 days — allowing the legislature sufficient time to provide for same-sex marriage (because it was absent) and thereby to avoid a constitutional impasse. The court later stated that the reason for the delay in Goodridge had been “to afford the Legislature an opportunity to conform the existing statutes to the provisions of the Goodridge decision.” The decision, then, was clearly not intended to self-execute.

Aside from dickering around with a proposed constitutional amendment, the legislature has yet to address same-sex marriage in Massachusetts: The laws remain unchanged. This, in conjunction with the Goodridge court’s observation that there is an absence of a same-sex-marriage provision in the law, compels the unremarkable conclusion that even today same-sex marriage does not properly exist in Massachusetts.

Mitt Romney, however, has taken it upon himself to fashion a remedy to the court’s decision. Given the separation of powers set forth clearly in the Massachusetts constitution, that remedy properly lies with the legislature — a point the court repeatedly made.

This is more than quibbling over semantics. The executive branch wields the power of the sword, and that power must be tied to the will of the people. It is true that if Mitt Romney were to decline to enforce a non-existent same-sex-marriage law, the legislature would likely create some version of same-sex marriage. But at least the people, through their representatives, would have a say in the matter. And that is no small thing.

--Jonathan Goulding
Lancaster, Mass.