From this comment, one has to conclude that Glen Lavy has never read the Goodridge opinion carefully or in its entirety:

“We conclude . . . that G. L. c. 207 may not be construed to permit same-sex couples to marry.”  Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

The law was never stricken nor severed.  The Massachusetts Supreme Judicial Court (hereafter “SJC”) explicitly stated: 

“Here, no one argues that striking down the marriage laws is an appropriate form of relief.  Eliminating civil marriage would be wholly inconsistent with the Legislature's deep commitment to fostering stable families and would dismantle a vital organizing principle of our society.

Because the SJC could not force the legislature to change the law, the SJC simply gave the legislature 180 days to act “consistently” with their decision declaring the statute unconstitutional.  The Court left it within the legislature’s discretion as to how to change the laws.  The Court said:

We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion.  Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. See, e.g., Michaud v. Sheriff of Essex County, 390 Mass. 523, 535-536 (1983).” 

On Feburary 3, 2004, the Supreme Judicial Court confirmed what it intended to accomplish in the Goodridge case in Opinions of the Justices to the Senate, 440 Mass. 1201 (2004):

In response to the plaintiffs' specific request for relief, the court preserved the marriage licensing statute, but refined the common-law definition of civil marriage to mean "the voluntary union of two persons as spouses, to the exclusion of all others." Id. at 343.  The entry of judgment was stayed "for 180 days to permit the Legislature to take such action as it may deem appropriate." Id. at 344. The purpose of the stay was to afford the Legislature an opportunity to conform the existing statutes to the provisions of the Goodridge decision.

If after the Goodridge opinion (November 18, 2003), the Massachusetts marriage statute, M.G.L. Ch. 207, had already been “changed” by that judicial decision; i.e., as Lavy claims, the statutes no longer “define marriage as the union of a man and a woman,” then why in February of 2004 was the SJC still waiting for the Legislature to conform the existing statutes to the Goodridge decision?   What exactly were they waiting for?  What could the legislature do that had not already been done?  Why would the Legislature need to conform the existing statutes to the provisions of the Goodridge decision if the Goodridge ruling had already accomplished that?  The answer is that the SJC was waiting for the legislature to legislate – to make new laws – because the SJC did not (and legally could not) legislate such a change to the statutes.

Lavy is wrong again.  Goodridge itself states:

“We conclude . . . that G.L. Ch. 207 may not be construed to permit same-sex couples to marry.”  Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

Not even the Supreme Judicial Court in Goodridge attempted to assert anything like what Glen Lavy is claiming  here.  The majority agreed that the statute’s use of the term “marriage” is defined and the SJC construed it to forbid same-sex “marriage.”

Here is the fundamental governing principle of jurisprudence that Glen Lavy is missing:  If a statute does not explicitly define a word, that word’s implicit definition is gleaned from determining the legislative intent behind the statute. 

Cf. Levin v. Wall, 290 Mass. 423 (1935) (“The word “tender” had, at the time when the statute in question was originally enacted, "acquired a peculiar and appropriate meaning in law . . . and therefore, in the construction of that statute, must be given such meaning." G. L. (Ter. Ed.) c. 4, § 6);

Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“The plaintiffs have asked us to interpret a statute, G. L. c. 207, § 12, and we are obliged to do so in the way our Legislature intended.”); 

Devine v. Board of Health of Westport, No. 05-P-428 (April 14, 2006) (“We interpret a statute "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated ... [and] the statutory language itself is the principal source of insight into the legislative purpose." Commonwealth v. Smith, 431 Mass. 417, 421 (2000), quoting from Registrar of Motor Vehicles v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981).  See Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622-623 (1983).  We attempt to construe the language such that all provisions will be given effect and no part rendered inoperative or superfluous. Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998).”).

Where is the citation of authority for that legal principle that Glen Lavy pronounces?  The accepted legal principle is diametrically opposite of what Glen Lavy claims.   It is that statutes override common law in any case where they may conflict.  Put another way, common law is subordinate to statutory law.  Period.  Nothing could be more fundamental. 

See School Committee of Lowell v. Mayor, 265 Mass. 353 ("[W]here a statute has been enacted seemingly intended to cover the whole subject to which it relates, including a remedy for its infraction, other provisions of the common law, including such as are remedial in nature, are thereby superseded. Many of our decisions illustrate the application of that principle."); 

Decker v. The Black & Decker Manufacturing Co., 389 Mass. 35 (1983) (note 10) ("Part II, c. 6, art. 6, of the Massachusetts Constitution provides: "All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the Legislature;”   To uphold the third-party plaintiffs' argument would be tantamount to placing "certain rules of the 'common law' ... above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and of the flexibility required for the healthy growth of the law." Freezer Storage, Inc. v. Armstrong Cork Co., 47 Pa. 270, 281 (1978), quoted with approbation in Klein v. Catalano, 386 Mass. 701, 713 (1982).”).

Again, familiarity with Goodridge and reams of prior SJC precedent would have kept Glen Lavy from asserting something like this.  It is the Court’s “…plain but not necessarily easy duty to read the words of the statute in the sense in which they were intended.” See Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945).  The statute thus contains the statutory definition – even if that definition “hewed to” the common law definition at the time of the writing of the statute.  The statute does not “incorporate” the common law definition.  The SJC does not possess the authority to change the plain meaning of a statute’s language.  Not only does the Massachusetts Constitution explicitly deny courts any power remotely approaching what Glen Lavy claims for it, the court’s own previous rulings would have told Glen Lavy that was he is asserting has no conceivable foundation in law.

See Bratcher v. Galusha, 417 Mass. 28 (1994) (The plaintiff's request for a liberal interpretation of the statute is essentially a request that this court rewrite or ignore the plain language of the statute. We decline to intrude on the Legislature's function or to disregard the plain meaning of the statute.) 

In Goodridge, the SJC construed the plain meaning of c.207 as follows:

Sections 1 and 2 of G.L. c. 207 prohibit marriages between a man and certain female relatives and a woman and certain male relatives, but are silent as to the consanguinity of male-male or female-female marriage applicants. See G.L. c. 207, §§ 1-2. The only reasonable explanation is that the Legislature did not intend that same-sex couples be licensed to marry. We conclude, as did the judge, that G.L. c. 207 may not be construed to permit same-sex couples to marry.

How could any pro-family, “constitutionalist” attorney assert such a flagrantly anti-constitutional point? Any judicial attempt to legislate is a nullity. 

Cf. Casieri's Case, 286 Mass. 50 (1934) (“The final decree ... was a judgment of a court.  The Legislature cannot exercise judicial powers. That is prohibited by the clear words of art. 30 of the Declaration of Rights of our Constitution.  Any legislative attempt to that end would be a nullity.”)

The Massachusetts Constitution EXPLICITLY says this in several ways.  On this principle rests the very concept of self-government through an elected legislature.To grant judges the right OR the power to legislate is to submit to a Soviet-style system of government. 

Rogers v. Tennessee, ___ U.S. ___ (2001) (Scalia, J. dissenting) ("Massachusetts Chief Justice Hutchison could declare in 1767 that `laws should be established, else Judges and Juries must go according to their Reason, that is, their Will.' It was also imperative `that the Judge should never be the Legislator: Because, then the Will of the Judge would be the Law: and this tends to a State of Slavery.' " Or, as Judge Swift put it, courts "ought never to be allowed to depart from the well known boundaries of express law, into the wide fields of discretion." 2 Swift 366.” quoting 1 M. Horwitz, The Transformation of American Law 1780-1860, p. 5 (1977).).

Countless American soldiers have died on the battlefield to defend this principle that Glen Lavy has given up without a fight.  This sort of advice from our profoundly compromised legal experts is one of the major reasons why we are losing the Culture War.  Again, any judicial attempt to legislate is a nullity.  Void. The Massachusetts Constitution emphatically refutes Glen Lavy’s glib and obviously un-researched assumption that so-called “case law” (court rulings) have broad legal power to set policy in Massachusetts:

Article X of Part1 of the Massachusetts Constitution (…[T]he people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent.)

Lavy’s errors could not be more fundamental nor could they have had more devastating consequences.  The SJC possesses no more legal authority and -- lacking the “power of the sword” that Governor Romney alone has – they also have no more power to change the plain meaning of a statute’s language than the United States Department of Agriculture does.

Commonwealth v. Smith, 46 Mass. App. Ct. 822, 826 (1999) ("The scope of the authority of [an appellate] court to interpret and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body. See art. 30 of the Massachusetts Declaration of Rights." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539 (1996), cert. denied, 520 U.S. 1131 (1997)).

Bratcher v. Galusha, 417 Mass. 28 (1994)  (“The plaintiff's request for a liberal interpretation of the statute is essentially a request that this court rewrite or ignore the plain language of the statute. We decline to intrude on the Legislature's function or to disregard the plain meaning of the statute.”)

Such an act is beyond the province of the Court and therefore a violation of the Separation of Powers doctrine.

Commissioner of Mental Health v. Gagne, 19 Mass. App. Ct. 545 (1985) (“We recognize, however, that it is beyond our province to rewrite the statute.”).

Cahill v. Commonwealth, 15 Mass. App. Ct. 914 (It is not for us to assume a legislative role and rewrite the statute. [citing] Rosenbloom v. Kokofsky, 373 Mass. 778, 780 (1977)). 

The Court cannot disregard the legislature’s decisions in enacting statutes.

Commonwealth v. Rahim, 441 Mass. 273 (2004)  (The Legislature's choice to include only "consanguinity" cannot be disregarded.)

Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539 (1996), cert. denied, 520 U.S. 1131 (1997) (We have no right to read into the incest statute ‘a provision which the Legislature did not see fit to put there.’ ..." King v. Viscoloid Co., 219 Mass. 420, 425 (1914).)

To do so would amount to judicial legislation, which is forbidden by Art. 30 of the Massachusetts Declaration of Rights.

Massachusetts Constitution - Article XXX. The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Commonwealth v. Smith, 46 Mass. App. Ct. 822 (1999) ("The scope of the authority of [an appellate] court to interpret and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body. See art. 30 of the Massachusetts Declaration of Rights.")

Bronstein v. Prudentials Ins. Co. of America, 390 Mass. 701 (1984)  (There is “no right to conjecture what the Legislature would have enacted if they had foreseen the occurrence of a case like this; much less can [it] read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose.”); General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999);  King v. Viscoloid Co., 219 Mass. 420, 425 (1914). 

The SJC repeatedly has acknowledged it has “no right to read into [a] . . . statute a provision [extending a definition] which the Legislature did not see fit to put there."  Nor will it “add words to a statute that the Legislature did not put there . . ."

Commonwealth v. Santos, 58 Mass. App. Ct. 701 (2003);  Commonwealth v. Smith, 46 Mass. App. Ct. 822, 826 (1999), S.C., 431 Mass. 417, 425 (2000), quoting from King v. Viscoloid Co., 219 Mass. 420, 425 (1914).

Commonwealth v. Poissant, SJC-09355 (2005) citing Commonwealth v. Callahan, 440 Mass. 436, 443 (2003), quoting Commonwealth v. McLeod, 437 Mass. 286, 294 (2002), and cases cited.

Civitarese v. Middleborough, 412 Mass. 695, 700 (1992) ("We will not read into the plain words of a statute a legislative intent that is not expressed by those words"). 

It is the Legislature alone whose legal prerogative it is to adjust the statutes to changed conditions.

Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945). (“[I]t is not our function to assume a "liberal" attitude or a "conservative" attitude. As in other cases of statutory construction and application, it is our plain but not necessarily easy duty to read the words of the statute in the sense in which they were intended, to accept and enforce the public policy of the Commonwealth as disclosed by its policymaking body, whatever our own personal opinions may be, and to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions. . . . . If it is thought that modern conditions require that such an exception be made, the Legislature and not this court should make it.”)

As Mr. Chief Justice Burger of the Supreme Court of the United States explained in his dissent in Furman v. Georgia, "in a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people."

Furman v. Georgia, 408 U.S. 238, 383--384 (1972) (Burger, C.J., dissenting); see Mass. Const. Part I, Art. XX. (“The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.”); 

Mass. Const. Part I, Art. XXI. (“The freedom of deliberation, speech and debate, in either house of the legislature [is] essential to the rights of the people.”).

There are two basic problems with Glen Lavy’s claim, here:

• The SJC does not have the right to “do that” – to legislate – whether they appear to be asserting such a right or not, and
• Marriage does not have origins in common law.  Rather, common law has origins in canon/ecclesiastical law long predating the existence of our state constitution (the oldest now “in force” in the world) and our statutory law in Massachusetts.

They cannot.  No legal authority.  Therefore they did not!

See Dalli v. Board of Educ., 358 Mass. 753 (1971) ("To attempt to interpret this [statute] as including those in the category of the plaintiff would be to engage in a judicial enlargement of the clear statutory language beyond the limit of our judicial function. We have traditionally and consistently declined to trespass on legislative territory in deference to the time tested wisdom of the separation of powers as expressed in art. [30] of the Declaration of Rights of the Constitution of Massachusetts even when it appeared that a highly desirable and just result might thus be achieved." Id. at 759.  See also Connors v. Boston, 430 Mass. 31, 42-43 (1999), (where SJC refused to expand health insurance coverage to include domestic partners because such an expansion was within the province of the Legislature, where policy affecting family relationships is most appropriate and frequently considered).)

If they did, as Glen Lavy claims, “improperly,” then their ruling is void.  Their unconstitutional action is a legal nullity. 

See McCracken v. Sears, Roebuck & Co. , 51 Mass. App. Ct. 184 (A void judgment, that is, a 'total want of jurisdiction must be distinguished from an error in the exercise of jurisdiction. A court has the power to determine its own jurisdiction, and an error in that determination will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void.' Harris v. Sannella, 400 Mass. [392,] 395 [1987], quoting from Lubben v. Selective Serv. Sys., supra." O'Dea, 30 Mass. App. Ct. at 455.  . . . A judgment is void if the court from which it issues lacked jurisdiction over the parties, lacked jurisdiction over the subject matter, or failed to provide due process of law. United States v. 119.67 Acres of Land, 663 F.2d 1328, 1331 (5th Cir. 1981). . . . [A]cting with total want of jurisdiction . . .  render[s] the judgment a complete nullity." Hooks v. Hooks, 771 F.2d 935, 950 (6th Cir. 1985), quoting Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984).

Hopkins v. Clemson Agricultural College of South Carolina, 221 U.S. 636 (1911) (A void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection.) 

If “pro-family” attorneys and law professors haven’t the courage to publicly denounce an illegal and unconstitutional court ruling as null and void, then not only are they in flagrant violation of their own oath to uphold the Constitution, they are on the wrong side of the Culture War.  This habit of surrendering with only the appearance of a fight has brought us the point where pro-family attorneys are making a fancy living while they preside over the passing of our basic constitutional rights.

Putting aside for the moment the Court’s arrogant refusal to accept the Constitution’s explicit removal of marriage policy from court jurisdiction and, also, their outright disregard of the “rational basis” standard, to call the marriage statute “unconstitutional,” blatantly violates the Massachusetts Constitution in yet another way.  The term “marriage” is found in the Constitution.  The concept is therefore already constitutionally defined.  It is perhaps the most fundamental principle of jurisprudence that the concept means what it meant when ratified.  It is fixed until a Constitutional amendment -- and only that -- by the people might modify it.  It is thus quite obviously immune to attempted redefinition by court rulings -- or even by new legislation.  Declaring the definition of “marriage” as ratified in the Constitution itself “un-constitutional,” would render every word in the Constitution meaningless the moment a judge finds it distasteful.  Why did Glen Lavy not know that Massachusetts courts have long acknowledged this?  Due diligence would have revealed to him that “words of the Constitution cannot be ignored as meaningless.”

See Commonwealth v. Johnson, 417 Mass. 498 (1994) (the words of a Constitution "should be interpreted in the sense most obvious to the common intelligence." Bergstrom, supra at 541, quoting Opinion of the Justices, 365 Mass. 655, 657 (1974), and that "[w]ords of the Constitution cannot be ignored as meaningless" since "[a]ll [the] words [of the Constitution] must be presumed to have been chosen advisedly." Bergstrom, supra at 541, quoting Opinion of the Justices, 332 Mass. 769, 777 (1955), and Mount Washington v. Cook, 288 Mass. 67, 70 (1934). ); see also Cleaveland v. Malden Savings Bank, 291 Mass. 295 (1934).

The words of the Constitution and its Amendments "are mandatory and not simply directory.  They are highly important. There must be compliance with them. (emphasis added).”  Town of Mount Washington v. Cook, 288 Mass. 67 (1934).  “If the meaning of [the word] is plain and [it is] not controlled by other words or by some clear demonstration that [it is] not to be taken in a literal sense, the plain literal meaning must prevail.”

Colantouni v. Selectmen of Belmount, 326 Mass. 778 (1951);  Attorney General v. Methuen, 236 Mass. 564, 572—573.  Cf.  Teamsters v. Terry, 494 U.S. 558 (1990) (Kennedy, J., O'Connor, J., and Scalia, J., dissenting)  (“If we abandon the plain language of the Constitution to expand the jury right, we may expect Courts with opposing views to curtail it in the future.”)

Coleman v. Alabama, 399 U.S. 1 (1970) (Black, J., concurring) (“I can have no part in unauthorized judicial toying with the carefully selected language of our Constitution, which I think is the wisest and best charter of government in existence. . . .  For one, I still prefer to trust the liberty of the citizen to the plain language of the Constitution rather than to the sense of fairness of particular judges.”)

Cohen v. Hurley, 366 U.S. 117 (1961) Note 23 (“The notion that a violation of the plain language of the Constitution can gain legal stature by long-continued practice is not one I can subscribe to.”)

Smith v. California, 361 U.S. 147 (1959) (Black, J., concurring) (“It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States,  116 U.S. 616, 635   . . . Censorship is the deadly enemy of freedom and progress. The plain language of the Constitution forbids it. I protest against the Judiciary giving it a foothold here.”)

No word, therefore, can be construed out of the Constitution.

Colantouni v. Selectmen of Belmount, 326 Mass. 778 (1951) (“The word "any" cannot be construed out of the sentence.”)

Dooley v. U.S., 183 U.S. 151 (1901) (Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Peckham, dissenting) (“The plain language of the Constitution should not be made 'blank paper by construction,' and its specific mandate ought to be obeyed.”).

“[W]here the intention is clear there is no room for construction and no excuse for interpolation or addition."

Town of Mount Washington v. Cook, 288 Mass. 67 (1934) citing Attorney General v. Methuen, 236 Mass. 564, 573, 576. Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 99. In Opinion of the Justices, 271 Mass. 582, 589.

United States v. Sprague, 282 U. S. 716, at page 731  (All its words must be presumed to have been chosen advisedly. They must be given their ordinary meaning, and construed to accomplish a reasonable result. Mere words are not to be placed above the plain purpose to be achieved. The aim of all interpretation is to give effect to the dominating idea of the instrument.  Statements in the Constitution and its Amendments must be given effect in consonance with the end they are designed to accomplish).

How could the SJC in Goodridge declare the marriage statute unconstitutional because it does not permit same-sex marriage, while at the same time ignore the fact that the founders in 1780 embedded the word “marriage” in the Constitution?  How can a statute that protects the concept of traditional marriage be unconstitutional when the constitution protects that concept by explicitly addressing the concept in the document itself using the exact same word with the exact same meaning written by the exact same authors?  In other words, how can the Constitution be unconstitutional?  It can’t.  The Goodridge ruling is null and void.  And due diligence would have found countless court rulings – not to mention the state Constitution itself -- to substantiate that.

Hopkins v. Clemson Agricultural College of South Carolina, 221 U.S. 636 (1911) (A void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection.)

Smith v. California, 361 U.S. 147 (1959) (Black, J., concurring) (“It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States,  116 U.S. 616, 635   . . . Censorship is the deadly enemy of freedom and progress. The plain language of the Constitution forbids it. I protest against the Judiciary giving it a foothold here.”)

Dooley v. U.S., 183 U.S. 151 (1901) (Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Peckham, dissenting) (“The plain language of the Constitution should not be made 'blank paper by construction,' and its specific mandate ought to be obeyed.”).

As Martin Luther King said:   “One has not only a legal but a moral responsibility to obey just laws.  Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all." Letter from a Birmingham Jail, by Martin Luther King (April 16, 1963).

Every attorney and law professor who has sworn in the name of God to defend constitutional rule of law has a solemn obligation under God to do so, regardless of the displeasure of the ABA or anyone else.  To do otherwise is a very serious matter, and is taking the name of the Lord in vain, no matter how many other attorneys and law professors are also guilty of the same cowardice and rationalizations.

Even though they were the named defendant in the Case, the Goodridge Court did not instruct the Department of Public Health to do anything.  Why?  Why would the SJC order the Legislature (a non-party) to act consistent with their opinion, but not order the Department of Public Health (a party in the case) to do anything?  The answer is obvious.  The SJC knew they had no constitutional authority to order the Department of Public Health to do anything without a change in the marriage statute. 

Indeed, the plaintiffs in their request for relief chose not to ask that the Court order the Department of Public Health to do anything.  Why?  Because even the plaintiff’s attorneys never dreamed that same-sex “marriage” could be imposed on the citizens of the Commonwealth without a change in the actual marriage laws. Only the habitual, sleepwalking surrender of “pro-family, conservative, constitutionalist” attorneys and law professors and the decade-long (and repeatedly declared) sympathy of Governor Mitt Romney for “gay rights” made such a flagrant subversion of statute and Constitution possible.  Mitt Romney knew in advance that the pro-family movement would go for his “head fake.”

The Goodridge Court struck nothing down and had no constitutional power to do so. They simply gave the plaintiffs what they had asked for: a “declaratory” judgment on their opinion of the Massachusetts Constitution.  That is all they gave:

Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (“We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates  the Massachusetts Constitution.”)

Governor Romney and certain attorneys entrusted by the pro-family movement gave the rest. 

Contrary to Glen Lavy’s odd assertion, since the Goodridge Court never ordered the Department of Public Health to do anything and there was never a change in the enabling statute (the marriage laws), the officials at the Department had a constitutional obligation to enforce the current marriage laws which did not (and currently do not) permit same-sex marriage.

Mitt Romney’s handling, in 2005, of the issue of birth certificates (which have never been changed to accommodate same-sex couples) establishes his knowledge of his own similar constitutional responsibilities since there was no change in the enabling legislation.  In the words of Romney’s spokesperson as quoted in the Boston Globe: 

[T]he Department of Public Health, which the governor oversees, has been advising hospitals to alter the documents [by crossing out Father and Mother] since last year, when the first children were born to same-sex married couples.

[Romney’s spokesman, Eric] Fehrnstrom insisted that the practice is legal. But city and town clerks, who register and store birth records, argue that the cross-outs on the birth certificates could make them open to challenges by passport agents, foreign governments, and other officials. They have repeatedly asked Romney to create a new birth certificate for the children of same-sex parents that would include gender-neutral nomenclature.

But Romney has resisted, arguing that the Legislature must first pass a law authorizing such a change.

Boston Globe, July 22, 2005
Birth certificate policy draws fire, by Michael Levenson

Why must the Legislature, according to Romney, pass a law before the official wording of birth certificates are changed, but not before changing the official wording of marriage licenses?  The truth is, and Romney knows it (and Glen Lavy ought to be embarrassed for not knowing it), that without any authority from the enabling statute, the Department of Public Health had no legal authority to issue marriage certificates to any couples that did not meet the statutory requirements.

An easy analogy, but a false and misleading one.  Mayor Newsom had no legal authority to do what he did.  In contrast, Romney had a constitutional duty sworn before God to uphold the laws of the Commonwealth – which to this day preclude homosexual “marriage.”  What Romney did choose to do, however, was exactly what Mayor Newsom did.  Each ordered public officials to violate the law.

Without any enabling legislation, Governor Romney had no legal authority to order town clerks and justices of the peace to certify and solemnize “same-sex “marriages,” nor did he have the right to unilaterally change the official words of the “marriage” certificates. 

The same-sex “marriage” certificates being handed out since May 17, 2004, are null and void.  This is based on the longstanding legal principle that one can only receive the title (power, authority, ownership) that one has been given; i.e., a person can stand in no greater position, nor obtain greater ownership than that which was transferred.  Nemo dat qui non habet (“You cannot give what you do not have”). 

This is true, despite the passage of time.

Cohen v. Hurley, 366 U.S. 117 (1961) Note 23 (“The notion that a violation of the plain language of the Constitution can gain legal stature by long-continued practice is not one I can subscribe to.”)

Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 557 (1979), quoting Walz v. Tax Comm'n of the City of N.Y., 397 U.S. 664, 678 (1970) ("the mere fact that a certain practice has gone unchallenged for a long period of time cannot alone immunize it from constitutional invalidity . . . “)

Having benefited from this research – which he should have done himself long ago, Glen Lavy will now be able to rationally criticize the Governor’s actions as any courageous attorney ought to have.

It is deeply disturbing, and tragic, that the State Constitution was not consulted, nor was the massive body of case law that would have been necessary to defend marriage and our system of governance.  Most of Glen Lavy’s assertions – which have apparently governed MFI’s, FRC’s, Focus On the Family’s and ADF’s entire reaction to homosexual marriage -- are flatly contradicted by the Massachusetts Constitution, an overwhelming abundance of prior court opinions and (notwithstanding all of its flaws) the plain meaning of the words of the Goodridge opinion itself.  The clarity of our Constitution is precisely why over two centuries of court rulings debunks these legal claims that have kept much of the pro-family movement and some of its grass roots disoriented and paralyzed and have shielded Mitt Romney’s actions from even rudimentary examination. 

In actual fact, the Goodridge decision, illegal, void and anti-constitutional as it was (for multiple reasons), was not nearly as radical or as unconstitutional as the interpretation given it by those supposedly on our side who have rushed to explain Mitt Romney’s subsequent illegal imposition of void homosexual marriage. Romney did not enforce the court ‘s ruling as he claimed.  He violated it.  Goodridge said it was up to the Legislature, not the Governor to act.  Mitt Romney’s long history of public sympathy for “homosexual rights” provides the context for understanding his actions.  His current applause lines at pro-family gatherings are diametrically opposed to his statements and his actions over the years.  In his quest for the Presidency he will be abandoned en masse by informed pro-family voters who realize their leaders have fallen for an exquisite hoax.

This is a case of pro-family attorneys and leaders abandoning a Constitution they have not even bothered to read.  If they had, it would not have even been necessary to do the many hours of research into case law that we believe quite plainly none of the pro-family lawyers paid to do so has ever done.  The case law cited in part above is merely an endlessly redundant acknowledgment of what the state Constitution says very forcefully. 

Some relevant parts of the Constitution:

Article X.  …[T]he people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent.

Article XX. The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for. [See Amendments, Arts. XLVIII, I, Definition and LXXXIX.]

Article XXX. The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Part II, Article VI. All the laws which have heretofore been adopted, used and approved … shall still remain and be in full force, until altered or repealed by the legislature…