A mere three days before the sodomy "marriages" were to begin in Massachustts, a brilliant posting on the Boston Globe's constitutional law blog (May 14, 2004) explained our constitutional crisis. Dwight Duncan, Professor of Constitutional Law at Southern New England School of Law, apparently agreed with the analysis by Jonathan Goulding which he posted on that blog. Duncan now seems to be "missing in action" -- though if this constitutional legal analysis was valid then, why is it not valid now? (Professor Duncan, where are you?) Duncan's post (from 5-14-04):
Here's my friend Jonathan Goulding's commentary on our strange constitutional crisis provoked by the judicial imposition of gay marriage. Jonathan is a second-year law student at Ave Maria School of Law in Ann Arbor, Michigan and a long time Massachusetts resident.
The train is moving. It will soon be unstoppable as officials create and then begin administering the mechanics of same-sex marriage for the state of Massachusetts. Standard marriage forms are even now being revised. Town clerks are preparing for their new duties. Perhaps the most persuasive indicator that same-sex marriage will arrive in some form in Massachusetts on May 17 is that Governor Romney's legal counsel has instructed magistrate judges to resign if they cannot, in good conscience, marry same-sex couples.
Yet on that date, if the rule of law is ultimately followed, same-sex marriage will no more exist in the state of Massachusetts than when its constitution was ratified over two hundred years ago. It is my position that the Massachusetts Supreme Judicial Court made legislative action a prerequisite for same-sex marriage. My authority is the Court's opinion itself, Goodridge v. Department of Public Health.
For those who have not had the time or the inclination to read the historic opinion, the Court made the following two important findings. First, the Court found that current Massachusetts law does not provide for same-sex marriage. Second, the Court held that this state of affairs violates the Massachusetts constitution. Based on these two conclusions, the Court expressly directed the legislature to take appropriate action and to do it within 180 days.
Regarding the fast approaching deadline, the legislators have done nothing except to request an advisory opinion of the Justices, inquiring as to the validity of 'Vermont style' civil unions. The legislature received a sharply worded answer in the negative. And so, come May 17, all the citizens of Massachusetts will have is the Goodridge opinion.
It is fundamental that the power of any state official to do anything comes from-and only from-delegated authority. In particular, the authority of town clerks to issue and file marriage licenses and of the Department of Health to create procedures relative to marriage flows directly from the Massachusetts statutes cited in Goodridge. Therefore, when the Court found that those statutes did not permit same-sex marriages, the Court effectively denied town clerks and Department of Health officials the ability to confer marriage upon same-sex unions until the legislature takes further action.
Principles of our democratic republic demand that law be created by duly elected representatives. Those in the executive branch or in subordinate agencies-for example, town clerks-are not permitted to create law on an ad hoc basis. When, as has happened in Massachusetts, a state's highest court allows time for a legislature to change current statutes, procrastination on the part of the legislature does not empower those responsible for implementing existing law to proceed as if the statutes had been duly changed. Simply put, state officials may not implement a legislative scheme that does not yet exist. Yet, if the train keeps moving, that is exactly what will happen in Massachusetts on May 17. Town clerks, magistrate judges, and the entire executive branch are all gearing up for same-sex marriage. If the people of Massachusetts value their democratic principles, they will consider again the significance of May 17. Aside from an entry of the Court's judgment declaring that the lack of provision in the law for same-sex marriage is unconstitutional, nothing more will result. There will be no provision for valid same-sex marriages.
Importantly, the Goodridge Court could have written its opinion so that legislative action was not a prerequisite for same-sex marriage. The Court could have construed Massachusetts law as currently written to provide for same-sex marriage. Alternatively, the Court could have created a form of common law marriage that included same-sex unions. Either would have had the immediate effect of creating same-same marriage in Massachusetts. For obvious reasons, however, the Court chose to do neither. Radical changes to law should involve, to the greatest degree possible, the cooperation of all of the co-equal branches. Without delving into the Court's claim that the world's oldest functioning constitution suddenly now requires same-sex marriage, it is to the Court's credit that it crafted an opinion mandating legislative action prior to same-sex marriage arriving in Massachusetts.
It is unfortunate that Governor Romney and others are undermining the democratic process by refusing to recognize this. The result is that Massachusetts may shortly have hundreds or even thousands of "married" couples of dubious status. If, in due course, the rule of law is honored, these marriages will be invalid for lack of enabling legislation.
There are undoubtedly those who would support the current trend. That the failure of the legislature to act in a timely fashion should give state officials carte blanche to effectively create law based upon the principles articulated in Goodridge is itself a dangerous principle to espouse. In essence, it will be legislation without the legislature. The founders did not contemplate such a thing when they framed our governments over two hundred years ago. Neither did the Goodridge Court six months ago. The people of Massachusetts would do well to keep this in mind.
