How “Gay Marriage” Came to
Massachusetts:
Governor Mitt Romney’s Failure in a Constitutional Crisis
By Amy L. Contrada
Copyright © 2011 Amy L.
Contrada
ALC Publishing LLC
Boston, Massachusetts
All rights reserved under International and Pan-American
Copyright Conventions.
www.AmyContrada.com
Table of Contents
Introductory Note
Chapter V
– How “Gay Marriage” Came to Massachusetts: The Governor Kowtows to Judicial
Tyrants
Massachusetts
Supreme Judicial Court declares sodomy “marriage” a constitutional right
Romney’s action and
inaction on SJC ruling
What actually
happened
From the
Massachusetts Constitution
The
Goodridge ruling
What
happened in the months following the Goodridge ruling
Gov. Romney’s
specific actions implementing same-sex marriage
Orders to Justices of the
Peace
Town Clerk
Training Sessions
Orders Dept.
of Public Health to change marriage license to read “Party A/Party B”
Lax barring
out-of-state same-sex couples from marrying
Gave
discretionary wedding day certificates to same-sex couples
Romney
did all that, but continued to blame the Court and Legislature for the gay
marriage problem
Gov. Romney’s advisors on
the marriage ruling, 2003-2004
His Chief Legal Counsel Daniel
Winslow supported “gay marriage”
Other advisors
included “gay” activists
Romney’s Wall Street Journal
op-ed, “One Man, One Woman”
Edwin Meese; Matthew
Spalding (Heritage Foundation)
It did not have to end
this way
Romney tries to
cover his tracks
Background sources
Primary documents
Chapter
VI – The Conservative Establishment’s Failed Mass. Marriage Amendments &
The Grassroots Effort to Remove the “Gay Marriage” Judges
Romney’s failing long-shot strategy: Amend the
Constitution
History of
marriage amendments in Massachusetts
Before Romney became
Governor: He opposed good Mass. Citizens for Marriage amendment
Romney’s
term: He supported two flawed amendments establishing or allowing civil unions
MA&PA amendment and the
start of compromise: Civil unions OK?
Travaglini-Lees
Compromise Amendment, 2004-2005: Making civil unions a constitutional right
“VoteOnMarriage”
Amendment, 2005-2007
Pro-Family
Groups Oppose VoteOnMarriage Amendment
VoteOnMarriage campaign
VoteOnMarriage Failed the
People
Romney was complicit
in this failure
The Bill of Address
to remove the four Massachusetts Supreme Court Justices: Why did Romney not
support this effort?
The Judiciary is
the problem, not the Constitution
Romney refused to
consider Bill of Address
Constitutional
basis of the Bill of Address effort
No support from
Governor for Bill of Address or other bills on marriage
Chief Justice Margaret
Marshall: Ethically Challenged
Romney: “I’m not
looking to recall the judges”
Chapter
VII – My Letter from Mitt: Romney’s April 2004 Letter Reveals Weak,
Unprincipled Leadership during the Constitutional Crisis
Background
and constitutional context
Analysis of letter
from Gov. Romney
Romney
ignored our voices – and the Constitution
Irreparable damage done
Chapter
VIII – Timeline: Gov. Romney’s Role Creating “Gay Marriage” in Massachusetts
Mitt Romney demonstrates his commitment to “gay
rights” before becoming Governor & before “gay marriage” ruling (1994-early
2003)
After the “gay
marriage” ruling (Nov. 2003-May 2004)
After “gay
marriage” began (May 2004 & later)
Commentary
– Mitt Romney’s Other Flip-Flop: Follow the Court or the Constitution?
Endnotes
Introductory Note
This
Kindle edition (published December 2011) is excerpted from my 2011 print edition,
Mitt Romney’s Deception: His Stealth Promotion of “Gay
Rights” and “Gay Marriage” in Massachusetts (available at Amazon). Only a few minor changes have been
made from the May 2011 print edition manuscript. A brief commentary from
November 2011 is also included here.
The focus of these chapters is the
constitutional crisis of “gay marriage” in Massachusetts and Governor Mitt
Romney’s lack of leadership. Romney’s failure to uphold the Massachusetts
Constitution resulted in the issuance of null-and-void marriage licenses to
same-sex couples, still assumed to be “legal” by most commentators.
Not only has the mainstream media
ignored this history, likewise the Republican establishment is apparently
hoping the Party’s grassroots voters will never learn of it.
My book Mitt Romney’s
Deception completes the picture on Romney’s support of “gay rights,”
with a compendium of Romney’s public statements, a review of his record as
Governor promoting that cause, and the story of his support for radical
homosexual programs in the public schools.
Mitt Romney’s record is not one
conservatives can support.
In front of the Massachusetts State House, November 19,
2006.
Chapter V
How
“Gay Marriage” Came to Massachusetts:
The Governor Kowtows to
Judicial Tyrants[1]
Mitt Romney seemed comfortable as a
group of gay Republicans quizzed him over breakfast one morning in 2002.
Running for governor of Massachusetts, he was at a gay bar in Boston to
court members of [the homosexual] Log Cabin Republicans.
When the discussion turned to a court case on same-sex
marriage that was then wending its way through the state’s judicial system, he
said he believed that marriage should be limited to the union of a man and a
woman. But, according to several people present, he promised to obey the
courts’ [sic] ultimate ruling and not champion a fight on either side of the
issue.
“I’ll keep my head low,” he said, making a bobbing motion with his head
like a boxer, one participant recalled….
[Romney] … promised the Log Cabin members that he would not champion a fight
against same-sex marriage….
And, in the aftermath of the Massachusetts court decision, Mr. Romney,
though aligning himself with the supporters of a constitutional amendment, did
order town clerks to begin issuing marriage licenses to same-sex couples. Some
members of Log Cabin Republicans say that in doing so, he ultimately
fulfilled his promise to them despite his own moral objections.[2] [emphasis added]
– New York Times,
September 8, 2007
We need an amendment that restores and
protects our societal definition of marriage, blocks judges from changing
that definition and then, consistent with the principles of federalism, leaves
other policy issues regarding marriage to state legislatures. The real
threat to the states is not the [federal] constitutional amendment process, in
which the states participate, but activist judges who disregard the law and
redefine marriage in order to impose their will on the states, and on the
whole nation.…
At the heart of American democracy is the principle that the most fundamental
decisions in society should ultimately be decided by the people themselves.
Surely the definition of society’s core institution, marriage, is such a
decision.
Let me conclude with this point: Despite the warning signs, the Massachusetts
Legislature hesitated, and refused to act. But the court had no such
reluctance, and acted decisively. Now on the defensive, the legislature has
begun the long and difficult process of amending the Constitution to undue
[sic] what the Court has done. But it may soon be too late. [3 ]
[emphasis added]
– Mitt Romney,
testimony before the U.S. Senate Judiciary Committee, June 22, 2004
The SJC’s [Mass. Supreme Judicial
Court’s] claim to reformulate the definition of marriage was a legally
insignificant action that expired on May 17, 2004.
– Attorney “Robert
Paine,” “Frequently Asked Questions: Is same-sex "marriage" legal in
Massachusetts?” [4]
Massachusetts
Supreme Judicial Court declares sodomy “marriage” a constitutional right
On November 18, 2003, the Massachusetts Supreme Judicial
Court (SJC) informed the Legislature that the marriage statute’s clear
application only to opposite-sex couples was unconstitutional. The Court’s
one-vote majority suggested that the Legislature should change the law within
the next 180 days (by May 17, 2004) to allow same-sex couples to marry. But during
that six-month period, the Legislature postponed, debated, and postponed – then
finally dangled a cynical constitutional amendment defining marriage as
one-man/one-woman and creating civil unions. (That amendment could not
possibly have taken effect for two years). Essentially, the Legislature bucked
the Court, refusing to follow its instruction to alter the statutes.
The Massachusetts Court knew it could not have enforced its
same-sex marriage ruling on its own, so it had told the Legislature – not
the Governor – to act. But the Legislature resisted. Given the
unconstitutional nature of the ruling plus inaction by the Legislature, how was
it that same-sex marriages began in Massachusetts?
Enter Mitt Romney. As Governor, he had sworn an oath to defend
the Constitution. So how could he fail to block the errant judges who were
acting (in his own words) “outside of the law”? Why did he proceed unconstitutionally
to implement same-sex marriage?
Mitt Romney is sworn in as Governor, taking the oath to
uphold the Constitution, January 2003. Lt. Governor Kerry Healey is seated
behind him.
It appears Romney was keeping his pledge to the homosexual
Log Cabin Republicans who had twice endorsed him. His longtime support of gay
rights was playing out.
In 2002, “he promised [the Log Cabin group] to obey the
courts’ [sic] ultimate ruling and not champion a fight on either side of the
issue.” While he went on to make a show of working for a terribly flawed
(“designed to fail”) constitutional amendment on marriage, at the same time he
“order[ed] town clerks to begin issuing marriage licenses to same-sex couples.
Some members of Log Cabin Republicans say that in doing so, he ultimately
fulfilled his promise to them.”[5]
But whatever his personal conviction was, his oath to uphold
the Constitution should have taken precedence over his pledge to homosexual
activists. He was duty-bound to step up during this constitutional crisis and
say “NO” to the SJC. That is the purpose for the separation of powers: the
Executive should act as a check on the tyranny of another branch. What Thomas
Jefferson wrote[6] about the U.S.
Constitution applies equally to the Massachusetts Constitution (written by John
Adams):
The Constitution . . . meant that its coordinate branches
should be checks on each other. But the opinion which gives to the judges the
right to decide what laws are constitutional and what not, not only for
themselves in their own sphere of action but for the Legislature and Executive
in their own spheres, would make the Judiciary a despotic branch.
Also,
To consider the judges as the ultimate arbiters of all
constitutional questions [is] a very dangerous doctrine indeed, and one which
would place us under the despotism of an oligarchy.
The concepts of separation of powers, and checks and
balances embedded in our federal and Massachusetts Constitutions – which we
used to learn in junior high and high school – seem never to have entered
Romney’s or his legal staff’s minds.[7] Instead, Romney has
simply blamed the Court for acting, and the Legislature for failing to act. But
he still accepts no responsibility for same-sex marriages beginning.
Citizens’ banners outside Boston’s historic Faneuil Hall
during a pro-marriage rally on May 14, 2004, just days before the same-sex
“marriages” were to begin. Governor Romney failed to attend that rally, though
it was cosponsored by his supposed ally, the Massachusetts Family Institute.
The banner on the left reads: “ROMNEY: Tell Judge NO. ‘Separate But Equal Powers’.”
Author (on left) was handing out “Remove the Judges” stickers. (MassResistance
photo)
At the peak of the crisis (between November 2003 and May
2004), Romney redirected citizens’ attention to the hopeless effort to pass a
federal marriage amendment, and to the equally unlikely effort to pass a state
constitutional amendment on to the voters.[8] His only solution for
preserving marriage was to “let the people vote.” He wanted to protect
“democracy” … though he did not seem to care about the Constitution. Meanwhile,
his Executive Office was busy behind the scenes implementing the
unconstitutional marriage ruling.
Mitt Romney wants us to forget about his actions as Governor
during this constitutional crisis. He now wants us to believe he is a
constitutional originalist, and that he opposes judicial activism. His slight
mention of same-sex marriage in his 2010 book, No Apology, comes in his
declaration on the sanctity of the Constitution:
There is a strain of thought among some liberals … that
advocates lowering the bounds of law and the Constitution in order to
accommodate the sentiment and sensibilities about right and wrong held by the
elite and wise. They favor justices who will do “what they think is right”
rather than what they know the law and the Constitution demand. This explains
incongruous rulings on abortion and same-sex marriage – they are clearly beyond
the contemplation of the Constitution, but well within the sensibilities of
select society.…
Respect for the law will continue as part of our culture
only so long as it extends to the entire Constitution. When justices breach the
bounds of the Constitution and law, society may choose to follow them, with
untold consequences for the national character….
[Item 64 in his “Agenda for a free and strong America” at
the end of the book:]
Appoint judges that follow the Constitution rather than
invent a new one.[9]
How should we respond to governors (and presidential
candidates) who choose to follow such errant judges, rather than the
Constitution?
Romney’s action and inaction on SJC ruling
Romney wants to leave that question unexamined and tries to
divert our attention from his missteps. For instance, we read stories like
this, which focus on his emotions and feelings during the constitutional
crisis. Marc Ambinder at National Journal reported that upon hearing the
news of the SJC ruling, Romney reacted as if he had been hit in the gut:
The governor read a synopsis of the decision [the morning it
came out], writing notes in the margin. An aide directed him to this sentence:
“[It] is the exclusive and permanent commitment of the marriage partners to one
another, not the begetting of children, that is the sine qua non of civil
marriage.”
That finding rejected the thrust of the state attorney
general’s main argument against gay marriage. The court also held that
Massachusetts had scarred the children of same-sex couples by denying their
parents access to the state benefits and recognition available only through
lawful marriage. According to one of his aides, Romney, who is married to his
high school sweetheart and has five sons, looked like he was “hit in the gut”
when he read the court’s conclusion: The state government had no “rational”
reason for allowing only “opposite-sex couples” to marry. “Prejudices” alone,
the court said, had blocked same-sex couples from marrying.…[10]
Newsweek reported a similar version:
Romney can place a date on the moment he took a stand
against gay marriage. On Nov. 18, 2003, the Massachusetts Supreme Judicial
Court upheld gay marriage in the commonwealth. Romney’s chief counsel, Daniel
Winslow, recalls printing out the decision and carrying it to the governor’s
corner office. “It was as though he’d been punched in the solar plexus,”
Winslow tells NEWSWEEK. “I think he was stunned – and it was genuine, too,
because it was in private.” Romney was reacting against liberal judicial
activism as well as taking a position against gay marriage, say his advisers,
who do not wish to be identified discussing the candidate’s thinking.[11]
So he was reacting emotionally “against liberal
judicial activism.” But why did he refuse to act in his constitutional role as
Governor “against liberal judicial activism”? What good is his “stand against
gay marriage” if he did not also stand against judicial tyranny?
The focus in this chapter is neither the Governor’s gut
reaction nor his reasons for wanting to preserve marriage, but whether he
fulfilled his sworn duty to defend the Constitution and the rule of law during
this constitutional crisis.
If Governor Romney had truly wanted to uphold traditional
marriage, the easiest way would have been to follow the Massachusetts
Constitution, and ignore the Court’s unconstitutional ruling. Why did he choose
not to do so? Was he really committed to preserving marriage? Or to
fulfilling promises he had made to his radical homosexual Republican allies?
It is telling that Governor Romney never appeared
publicly with any pro-traditional-marriage groups or at any rallies before
he announced his support for the VoteOnMarriage effort (in June 2005). There
were no bully-pulpit speeches about marriage, the out-of-control Court,
or amendments or bills he might be filing or supporting. His official statements
on the ruling or on same-sex marriage were brief and weak. Was it an anomaly
that he issued hundreds of discretionary one-day Governor’s certificates
for same-sex couples (allowing their officiant to be someone other than
clergy or a Justice of the Peace)?[12] If he was really
opposed to same-sex marriage, why did he act in this way?
His claim to be a strong advocate for traditional marriage
rests entirely on his push for a constitutional amendment. The weakness
of that approach is explained in Chapter VI.
What actually happened
The timeline below (Chapter VIII) makes clear Governor Mitt
Romney’s role in creating same-sex “marriages.”
Same-sex marriage was not created by the Supreme
Judicial Court’s 2003 Goodridge ruling, and is still not legal in
Massachusetts.
Demonstrator in February 2004 outside the Supreme
Judicial Court in Boston. “SJC4” refers to the four justices who ruled
“same-sex marriage” was a Constitutional right. (MassResistance photo)
In fact, it was Governor Mitt Romney who was ultimately
responsible for the same-sex marriages starting on May 17, 2004. The Court had
only issued an opinion and advised the Legislature to pass enabling legislation
– which it still has not done (as of early 2011). In advising the Legislature
to change the statutes, the Court even acknowledged that it had no power to
change the law. Nor did it have the power to order the Legislature to act.[13]
When the Legislature failed to change the marriage statute
to allow same-sex couples to “marry,” Governor Romney took matters into his own
hands. Working with his Legal Counsel and the Attorney-General’s office on how
to implement what both the Governor and Attorney General referred to as the new
“law,” Romney authorized his Department of Public Health to print and issue new
gender-neutral marriage licenses. And through his Chief Legal Counsel, he
threatened to fire any Town Clerk or Justice of the Peace who failed to
implement same-sex marriages. JP’s were even warned they may face a fine of
$25,000 – $1 million if they refused to perform a same-sex wedding. No opt-out
for religious reasons would be allowed.[14]
Romney ignored pleas from conservative legal analysts and
pundits, as well as concerned citizens, to defy the illegitimate ruling. He
ignored calls to issue an Executive Order barring issuance of same-sex marriage
licenses. He refused to support removal of the four errant judges. (See Chapter
IX for reports and commentary from that period.)
Concerned citizens in West Springfield calling for action
in February 2004. (MassResistance photo)
Romney’s aides told WorldNetDaily (in July 2007)
that,
… he believed he had no choice but to direct clerks and
others to change state marriage forms to eliminate the “husband” and “wife” or
“bride” and “groom” references and to begin registering “marriages” of same-sex
couples.… A spokesman said while Romney felt passionately the court was wrong,
his options were limited. He said Romney explored “every legal avenue” and
concluded the decision could only be resisted “at the price of constitutional
government.”[15]
At the price of constitutional government? On the
contrary, defiance of the ruling would have engaged the needed battle to
preserve constitutional government. The Court was the instigator of the
constitutional crisis. The Constitution was crying out for a proper response
from the Legislature and Governor. Massachusetts, in fact, lost any semblance
of constitutional government because of Romney’s actions in 2004.[16]
From the
Massachusetts Constitution:[17]
… the people of this commonwealth are not controllable by
any other laws than those to which their constitutional representative body
have given their consent. – Part I, Article X
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. – Part I, Article XX
In the government of this commonwealth, the legislative
department shall never exercise the executive and judicial powers, or either of
them: the executive shall never exercise the legislative and judicial powers,
or either of them: 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 I, Article XXX
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. – Part II, Ch. III, Article V
John Adams, author of the Massachusetts Constitution.
From the very start of the crisis, Romney accepted the
notion that the Court opinion was new “law.” His brief, weak statement on the
day of the ruling implied that only an amendment to the Constitution could
answer the Court’s action. Preserving marriage was, however, no more important
than guaranteeing “appropriate benefits” to same-sex couples:
I disagree with the Supreme Judicial Court. Marriage is an
institution between a man and a woman. I will support an amendment to the
Massachusetts Constitution to make that expressly clear. Of course, we must
provide basic civil rights and appropriate benefits to nontraditional couples,
but marriage is a special institution that should be reserved for a man and a
woman.[18]
In reports from the day after the ruling, it is clear that
Romney had no conception of defying the ruling, but considered the ruling “law”
he had to implement. He viewed the Court as rightful dictator on what was
acceptable. His Chief Legal Counsel, Daniel Winslow,[19]
clearly helped shape that understanding:
As they pored over the decision, lawmakers and staffers
tried to find some wiggle room in the court’s instructions. One Romney aide
said that because the decision was so close, the court may be willing to
accept something short of gay marriage, at least temporarily….
Romney said he would work on two tracks, pushing to amend
the constitution to ban gay marriage while also working to provide “basic civil
rights and appropriate benefits to same-sex couples and other nontraditional
relationships.” He said he would support health-care benefits and inheritance
rights, but said he could not list the full slate of rights he is comfortable
with granting.
“I agree with 3,000 years of recorded history. I disagree
with the Supreme Judicial Court of Massachusetts,” Romney said. “But I can tell
you that over the next several months that I will work with legislative
leadership, and other legislators, and community leaders to decide what kind of
statute we can fashion which is consistent with the law.”
At the same time, though, he said he would abide by the
ruling. “We obviously have to follow the law as provided by the Supreme Judicial
Court, even if we don’t agree with it,” Romney said.[20]
[Emphasis added.]
Romney’s spokesman Eric Fehrnstrom confirmed this approach:
Fehrnstrom … noted that the “body of law” is more than just
statutes passed by the legislature. “It also encompasses opinions of the court.
In our democratic form of government, the court is given the responsibility of
interpreting the constitution. In Massachusetts, the Supreme Judicial Court
found a constitutional right for same sex couples to marry,” he said.[21]
Yet Romney would contradict himself, decrying “activist
judges who disregard the law and redefine marriage.”[22]
Which is it? What is the law, and what is not? Were the judges “disregarding”
the ultimate law and precedent – the Constitution? (The definition of marriage
embedded in the Constitution was clear.) And if that were the case, shouldn’t
Romney just disregard their opinion?
Citizens show their understanding of the Constitution at
an Article 8 Alliance demonstration outside the Mass. Supreme Judicial Court,
February 2004. (MassResistance photo)
Conservative legal analyst Phyllis Schlafly addressed (in
December 2003) what many pro-family leaders and citizens in Massachusetts were
asking. She believed that Romney and the Legislature should refuse to take any
actions assenting to the “right” invented by the Court:
Those judges had no authority to change the definition of
marriage. They looked inward and convinced themselves that they alone could
change social policy and make new law, and they even contemptuously opined that
belief in traditional marriage is without a “rational basis.”
Regrettably, the response by Massachusetts public officials
has been pusillanimous. They are groveling before the four judges in the hope
they might be appeased by a parallel system of civil unions.
Governor Mitt Romney is trying to walk a tight rope of
compromise. While supporting a constitutional amendment to protect traditional
marriage, he said: “We obviously have to follow the law as provided by the
Supreme Judicial Court, even if we don’t agree with it,” and we need to decide
“what kind of statute we can fashion which is consistent with the law.” But
what “law”? There is no law that requires or even allows same-sex marriages.
The judges enunciated only special-interest advocacy masquerading as legal
reasoning.
Attorney General Thomas F. Reilly said the judges
overstepped in trying to shape social policy, but he wants to test an
alternative solution and then seek “an advisory opinion of the court.” Au
contraire; we don’t want any more advice from those judges. …
This Massachusetts court decision isn’t just about same-sex
marriage. It has posed the question whether Americans are willing to submit to
what Thomas Jefferson predicted would be “the despotism of an oligarchy” if
judges are allowed to be “the ultimate arbiters of all constitutional
questions.” …
State legislators and public officials must refuse to
enforce court rulings as “law.” Only elected representatives can make law. They
should echo the famous remark of President Andrew Jackson about a Supreme Court
ruling he believed was wrong: “[Chief Justice] John Marshall has made his
decision; now let him enforce it.”
The legislatures of Massachusetts and Vermont (and any other
state suffering from activist judges) must nullify, repeal or revoke any
court’s redefinition of marriage. This is what the people of Hawaii and Alaska
did after their state courts used ERA to legalize same-sex marriage.[23]
And a month earlier (only two days after the ruling),
attorney and talk show host Hugh Hewitt was terribly concerned about the
Massachusetts events. He called on the Governor and Legislature to “Just say
NO” to the ruling, which he called “a radical diktat”:
“JOHN MARSHALL has made his decision,” Andrew Jackson is
said to have remarked in the aftermath of a Supreme Court decision he disliked,
“now let him enforce it.” …
Massachusetts Governor Mitt Romney would be well advised to
ponder that line long and hard ...
Romney should seriously consider indifference. The
governor noted that the ruling declaring same-sex marriage a mandate of the
Massachusetts constitution is contrary to the sweep of recorded history, but it
is more than that. The ruling is also absurd in its reasoning and breathtaking
in its arrogance. …
The legislators and the governor [Hewitt is in error; the
ruling did not mention the Governor] have been given 180 days to change 387
years of Massachusetts history…. but nowhere along the way did it embrace
the concept of four philosopher kings delivering commands.
The decision is illegitimate, and the appropriate
response will be to ignore it.
[Law professor and blogger Eugene Volokh] … in fact thinks
such inter-branch confrontations are useful in the life of constitutional
republics. …
But the storm will pass and the people of Massachusetts will
applaud. They didn’t sign up for a banana republic run by pretenders in robes,
and no one in the state’s illustrious history ever sacrificed life or limb …
for the proposition that four judges get to change everything when they decide
to conjure up a reason for doing so.
Romney and the legislature ought to stand back and say no.
In fact, if the court threatens with penalties, they ought to threaten back. An
outrageous overreach is only as strong as the passivity with which it is
greeted.
This isn’t primarily about gay marriage, and it isn’t
primarily about Massachusetts. It is primarily about self-government and
limiting courts to their constitutional duties. And Massachusetts, again,
has a central role to play.[24]
[Emphasis added.]
But was there something worse than “passivity” (Hewitt’s
characterization) which could explain Governor Romney’s eventual actions?
After the same-sex marriages began in May 2004, Schlafly
wrote:
The trumpet has sounded. Will Americans answer the call –
and demand that our elected representatives do their duty to protect us from
judicial tyranny? Or will they, like Massachusetts Attorney General Tom Reilly
and Governor Mitt Romney, protest that they are against same-sex marriage, but
knuckle under to the judicial supremacists and repeat the mantra that the
court’s decision is “the law of the land”? The failure of Massachusetts’
elected public officials to act emphatically against the judicial assault on
marriage has encouraged judicial activists in other states … to indulge in
similar same-sex mischief.[25]
Demonstrators outside the Supreme Judicial Court in
Boston, February 2004. “SJC4” refers to the four judges who ruled for “gay
marriage.” (MassResistance photo)
Even voices on the other side of the debate, those favoring
same-sex marriage and believing the SJC’s ruling had to be obeyed, were
concerned about preserving the separation of powers and some semblance of
constitutionality. They understood that the ruling would only become “law” if
the Legislature acted to change the existing law. Former Governor (and former
U.S. Attorney) William Weld, Harvard Law School Professor Laurence Tribe,
former Massachusetts Attorneys General Scott Harshbarger and James Shannon, and
Boston Bar Association President Renée Landers signed a
letter sent to all legislators in early January 2004. The letter noted their
concern over the “hundreds of laws on the books” referring to husband/wife
which had to be changed in order for same-sex marriages to begin. The Boston
Globe reported:
[The letter stated,] “We urge each of you as members of a
coordinate branch of government sworn to uphold the constitution, and the rule
of law, to use the remainder of the time period in the court’s stay to take any
and all steps possible to facilitate the orderly issuance of marriage licenses
to qualified same-sex couples.”…
Tribe, in an interview, said the letter is intended to urge
lawmakers on both sides of the issue to pave the way and change existing
state laws to bring them into compliance with the ruling, which the court
stayed for six months to give the Legislature time to act.[26] [Emphasis added.]
The letter presents a self-contradictory argument: It’s a
ruling (by one branch), but it must formally made law (by another branch),
otherwise the Constitution (separation of powers) is meaningless [conveniently
ignoring that the Constitution bars orders from the Court to the Legislature].
But it goes on to say that licenses must be given to same-sex couples even if
the Legislature does not do what it is required to do by the
Constitution (revise the law), because Court rulings are equivalent to law. The
letter makes no mention of the Governor’s role (or that of his Department of
Public Health). How exactly would newly worded licenses come into being if no
enabling statute was passed? (It is noteworthy that Governor Weld was one of
the signatories, and Mitt Romney had identified him as a mentor on gay-rights
issues in years past. Was Romney following Weld’s lead in this confused
thinking?)
The Goodridge
ruling
The Massachusetts Supreme Judicial Court issued its opinion
on same-sex “marriage” on November 18, 2003, reversing a lower court ruling.[27]
It stated:
The marriage ban works a deep and scarring hardship on a
very real segment of the community for no rational reason. The absence of any
reasonable relationship between, on the one hand, an absolute disqualification
of same-sex couples who wish to enter into civil marriage and, on the other,
protection of public health, safety, or general welfare, suggests that the marriage
restriction is rooted in persistent prejudices against persons who are (or who
are believed to be) homosexual. “The Constitution cannot control such
prejudices but neither can it tolerate them.”
…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….[28]
It made these basic points:
First, it acknowledged that the current law did not permit
same-sex marriage. The statute, Chapter 207,[29] is specific in its
opposite-sex wording, referring to “husband/wife” and “man/woman.” The majority
opinion states:
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.
Second, it said it is not striking down the marriage
laws. The Massachusetts Constitution[30] forbids a court to
change laws, and makes it clear that a law remains on the books unless it is
repealed by the Legislature.
Here, no one argues that striking down the marriage laws is
an appropriate form of relief.
Attorney “Robert Paine” explained:
Why didn’t the SJC simply order the laws to change? Because,
as the Court recently held (in its opinion regarding the legislature’s
constitutional duty to vote on the [2002] citizens’ proposed marriage
amendment), it has no power to order another branch of government to act.
So then how can Mitt Romney claim the SJC (the judicial branch) would have
forced him (the executive branch) to issue marriage licenses and get away with
it?[31] [Emphasis added.]
Third, it declared that not allowing same-sex marriages is a
violation of the Massachusetts Constitution. (And the logic they use for this
is bizarre.)
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.
According to Attorney “Robert Paine,” the SJC ruling simply
changed a “common law” meaning of the term marriage. But because that
term (marriage) already existed in the statute and in the Constitution,
the SJC’s common law declaration of a new meaning did not and could not change
the statute or the words of the Constitution (since common law is subordinate
to statutory and constitutional law). Only a constitutional amendment could
change the constitutional meaning of the term “marriage.”[32]
Fourth, given that the SJC was not changing any laws, it
gave the Legislature 180 days to “take such action as it may deem appropriate”
(i.e., “to fix the legal mess the Court had created”[33]).
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.[34]
What if the Legislature failed to act? As Attorney “Robert
Paine” noted, “The SJC’s claim to reformulate the definition of marriage was a
legally insignificant action that expired on May 17, 2004.”[35]
The absurd ruling would have simply withered on the vine.
Chief Justice Margaret Marshall impersonator
shreds the Constitution outside the Supreme Court building in Boston at an
Article 8 Alliance demonstration in 2005. The group was still then calling for
her removal from the bench. (MassResistance photo)
The Court did not order that same-sex marriage
licenses be issued. Various news stories and even promoters of same-sex
marriage acknowledged this early on.[36] For instance, the New
York Times reported, “The ruling … gave the legislature 180 days to
conform. But it left to the 200 lawmakers the choice of what steps to take, if
any, to allow gays to obtain marriage licenses.”[37]
Attorney General Tom Reilly and Senate President Robert Travaglini did not
believe the Court ordered issuance of marriage licenses to same-sex couples.[38]
Governor Romney’s “mentor” on the issue of same-sex marriage,[39]
former Governor (and former U.S. Attorney) William Weld, understood that the
Legislature had first to change the law to enable the issuance of marriage
licenses to same-sex couples:
William F. Weld, the former governor whose early advocacy of
gay rights frequently put him at odds with his Republican colleagues, yesterday
gave a strong endorsement to the Supreme Judicial Court’s legalization of gay
marriage and said he may officiate at a wedding after the ruling goes into
effect.
“It’s a thunderbolt, but a thunderbolt correctly heard,”
Weld told the Globe …. Weld said the court has clearly mandated that the state
must issue marriage licenses and allowed no wiggle room. …
“It’s all over,” said Weld… “I may well officiate at a
same-sex marriage next year, after the Legislature has a chance to pass an
enabling statute,” Weld said.[40]
[Emphasis added.]
And what could the Massachusetts Court itself do to implement
and enforce its opinion if the Legislature did not act? Nothing.
The Court cannot order either of the other two branches to
do anything. Indisputably, the Court did not tell the Governor to do anything.
And the Governor could not legally act if the Legislature did not change the
statute. Essentially, the Legislature did defy the Court by not
taking the action it suggested.
But Governor Romney was for whatever reason set on his own
course of action. His unconstitutional compliance gave the Court majority its
wish.[41]
Outside the Supreme Judicial Court, February 2004: Did regular
citizens have a better understanding of the Constitution than Governor Romney? (MassResistance
photo)
What happened in the months following the Goodridge
ruling
Governor Romney’s first reaction was to figure out a way to
please the Court. According to the Boston Globe, the day after the
(November 2003) ruling:
Under pressure to respond to the Supreme Judicial Court’s
decision on gay marriage, Governor Mitt Romney and a top House lawmaker said
yesterday that they believe the justices would be satisfied if lawmakers craft
a civil union statute that grants many of the benefits of marriage but does not
legally sanction same-sex marriage.…
Talking with reporters outside his office, Romney said that
the justices, by giving lawmakers 180 days to carry out their ruling, gave
state legislators a window to put in place “a civil union type” statute.
“Under that opinion, I believe that a civil union type
provision would be sufficient,” Romney said. “I believe their decision
indicates that a provision which provided benefits, obligation, rights, and
responsibilities, which are consistent with marriage but perhaps could be
called by a different name, would be in conformity with their decision.”[42]
Note that he also recognized here that it was the
Legislature that was called on to act. The Legislature floundered about, but in
the end changed nothing in the statutes. It began debate on constitutional
amendments to ban (not institute) same-sex marriage. But no amendment
could possibly be finally passed before the 180 days were up. Two favorable
votes in the Legislature would have to be followed a popular vote, so no
amendment could take effect before late 2006 at the earliest.
The Legislature requested and received an advisory opinion
from the SJC in early February 2004 that said creating civil unions just
would not satisfy the Court (whether via statute or amendment).[43]
Despite that advisory from the SJC, Romney continued to
“lead the charge for civil unions” – while saying he was opposed to civil
unions[44] – as the Legislature
proceeded to bury a well-worded amendment that would have banned same-sex
marriage and civil unions (in February 2004).[45]
That action came despite a huge rally on the Boston Common crying out for a
pure amendment (no same-sex marriages and no civil unions).[46]
Rally for the MA&PA amendment in front of the State
House on a frigid day in early February 2004. The amendment would have defined
marriage and banned civil unions. (MassResistance photo)
By the end of March, Romney actually forcefully lobbied
Republican legislators to support the Travaglini-Lees compromise
amendment – banning same-sex marriage while writing fully equivalent civil
unions into the Constitution – which both sides predicted was doomed to
failure in future required votes. Furthermore, the earliest that amendment
could take effect would be late 2006. (For more detail on the convoluted
history of the failed marriage amendments, see Chapter VI.)
Why didn’t the Legislature work seriously on strengthening
the statute for traditional marriage? Why did Romney not submit his own
bill to do so, and make a big public production of it? He had written an op-ed
in the Wall Street Journal (in early February 2004) urging strengthened
marriage statutes in other states, but sounding helpless to do anything in his
own state and resigned to the Court’s ruling (though prominent legal scholars
were suggesting wording for a statutory solution).[47]
Was all the busyness with the proposed amendments a
smokescreen, a kick-the-can-down-the-road tactic (as many pro-family activists
suspected)? The amendment process in Massachusetts is perilous at best.[48]
Clearly, the legislators did not want to go on record on the issue, which a
vote on a statute (within the 180 days) would have forced them to do. The
amendment process let them drag things out.
Were the legislators possibly also waiting for the Governor
to do something else? Did they know that Romney would pick up the ball for
same-sex marriage and run with it?
Meanwhile, citizens and local officials were wondering what
was going on in the State House as May 17, 2004 approached. In early March, the
Boston Herald editorialized, “Leadership needed on gay wed licenses”:
Hello, is anybody home? The question arises because it is
incomprehensible that neither Gov. Mitt Romney nor Attorney General Tom Reilly
appear [sic] inclined to help confused town and city clerks get ready for the
tsunami headed their way on May 17.
Romney made some grumblings in the wake of the November
Supreme Judicial Court ruling that municipal clerks ought not to act
unilaterally as some had threatened, to issue marriage licenses to same-sex
couples before May 17.
That guidance was appropriate, but May 17 is fast
approaching and clerks haven’t heard a word since then about how to proceed. …
Romney aides cite uncertainty over pending legislative
action as hampering the governor’s ability to advise the clerks. … While Romney
may not like the court’s decision, it will become the law of the land no
matter what the Legislature does, at least for now.
What other forms are needed and what procedural adjustments
must be made to accommodate same-sex couples from Massachusetts?
These are some pretty basic questions that two of the
state’s constitutional officers, charged with enforcing the laws, ought
to answer soon. It’s called leadership.[49] [Emphasis added.]
The editorial is just one example of the constant repetition
in the press that same-sex marriage was the “law” that had to be enforced, and
would inevitably start on May 17. The Herald also noted that the
municipal clerks’ association wrote to Reilly (on February 24) for direction on
what to do about out-of-state same-sex couples marrying in Massachusetts.
Was there was really a vacuum at the top of the state
government? Or was this silence a ploy to keep the conservatives calm and
hopeful that Romney might still say “No”?
Back in November 2003, Romney’s Department of Public Health
(DPH), which issued marriage licenses, had “sent a letter to local health
departments” immediately after the ruling “saying that issuing marriage
licenses before the deadline would violate the ruling.” Romney was quoted:
The state has informed the clerks in our various clerks’
offices around the Commonwealth that, given the stay of the implementation of
the supreme court’s decision, a 180-day stay, that they are not to proceed with
issuing marriage licenses at this time.[50]
In other words, it appears that Romney and his DPH were
readying to run with same-sex marriage from the start, and signaled
clerks they would be allowing same-sex couples licenses come May 17,
2004.
The powerful national homosexual organization, the Human
Rights Campaign, promised legal challenges if the licenses were not
forthcoming, no matter what the Legislature did or did not do. Mary Breslauer,
a Human Rights Campaign board member, said: “For any reason licenses aren’t
issued in 180 days from the court’s decision, yes, we will be back in court.
But I don’t expect that to happen.”[51]
The major newspaper reporters repeated over and over the
wording that same-sex marriage was “legalized” by the Court, that same-sex
marriages would begin on May 17, 2004, and that changes needed to the marriage
licenses were not an issue. Romney’s DPH bureaucrats agreed, a spokeswoman
saying (in February 2004) that the marriage license form “will be prepared to
comply with the law come May 17.”[52]
The Governor thus did not tighten the reins on his DPH to
prevent any such change.[53] In fact, by March he was
quietly but surely implementing the unauthorized document changes and preparing
training sessions, while remaining cagey with the newspapers. The Attorney
General let it slip that he had been working with Romney since early March
on how to implement the ruling.[54] Romney seems to have
been governing by stealth, preparing for the implementation on May 17,
but keeping citizens in the dark.
Romney wanted the people to be thinking of others’ feelings,
not the Constitution. He had instructed us in his February Wall Street
Journal op-ed to,
… remember that real lives and real people are deeply
affected by this issue: traditional couples, gay couples and children. We
should conduct our discourse with decency and respect for those with different
opinions.[55]
And in March, he urged citizens to remain calm:
Massachusetts Gov. Mitt Romney called on state residents Friday
to respect the rule of law and all sides of the same-sex marriage debate
as lawmakers continue to consider the issue.
“On a matter of such significance and with such tender
emotions and sentiments involved, I’d ask that we continue to show respect
and consideration for people of different views,” he said at the Statehouse in
Boston.
“The Legislature is now on track to put this issue before
the voters. Ultimately, this is as it should be. The people of our state should
decide.”
Romney said he would not comment on his plans until
state legislators complete their work at the end of the next [sic] month. “But
whatever I do, it will be within the bounds of the law,” he said, ruling
out issuing an executive order to block same-sex unions.[56] [Emphasis added.]
He would demand: “Let the people vote!” But in early
2004, when citizens were demanding, “Let the people know!” or asking, “Why
not an Executive Order?” he did not respond.
Citizens all over the state rallied to preserve
traditional marriage, here lining the town common in West Springfield on a cold
day in late February 2004. (MassResistance photo)
Shocking headlines started coming in late March – the first
word that the Governor’s office was making sure that same-sex marriages would
happening in May. But Romney was still playing hide-and-seek. He said he was
waiting for the Legislature to act. An AP headline on March 26, 2004 read,
“Romney denies gay marriage training scheduled.” But he left the door open that
something along those lines might be happening:
“That’s premature, perhaps a little jumping to
conclusions as to what might need to be provided as instructions,” Romney
said. “It’s very possible that various agencies in state government are making
preparations, but as to what would be taught or what would be provided to
people – I don’t think we know what that answer is until we end up hearing from
the Legislature.”[57]
[Emphasis added.]
But Stanley Nyberg, DPH Registrar of Vital Records, admitted
then that training for Town Clerks was scheduled.[58]
In this same story, Ron Crews of the Massachusetts
Family Institute cautiously states that Romney should wait before planning to
carry out the marriages (but he still accepts the Court’s authority in the end
– should their other options fail). Romney and Crews were singing the same tune
at this point, both apparently taking some very bad advice from the Alliance
Defense Fund. Crews thought:
… the state should not prematurely plan for same-sex
marriage until all options to ban or postpone it were exhausted. “We’re still
hopeful that the Legislature is going to pass an amendment next week that will
give the voters the opportunity to support marriage, and that will give
momentum for the governor to take some steps to ensure that marriage in the
state will remain defined as it always has,” Crews said.[59]
In another story that day (March 26), the Boston Globe
headlined, “Licensing for gay marriages planned; But Romney aide says word is 'premature'”:
“In the state’s first official acknowledgment that gay and lesbian couples can
legally marry in May, town and city clerks were notified this week that they
will be trained to issue marriage licenses for same-sex couples.”[60]
So, the Governor at first had no comment, then waffled on
whether training was planned (“that’s premature … It’s very possible”), then
admitted through his DPH official that he was planning training sessions for
town clerks on the new, gender-neutral marriage licenses. But he also claimed
he was waiting for the Legislature’s action on the proposed “compromise”
amendment.
“Legal experts” helped the forward momentum, telling the Globe
(in late March) that, “Romney has few options to block gay marriages in
May”:
Romney reiterated his commitment Tuesday to abide by the law
of the land as it exists on May 17 and said he would not order city clerks to
defy the court edict. There is a section in the state constitution that gives
the governor the power to weigh in on the “causes of marriage,” but Romney
said he had not explored whether this clause gives him any legal power to stop
gay marriages.[61]
[Emphasis added.]
It’s curious that Romney said “he had not explored” his
Constitutional powers on this. He failed to mention (and the mainstream press
failed to report) details of the legal brief from Massachusetts Family Institute
(working with the Alliance Defense Fund), or the opinion of Attorney Mathew
Staver (Liberty Counsel). Those attorneys laid out the Governor’s
constitutional authority to issue an Executive Order to halt the same-sex
marriage licenses.[62] Surely the Governor was
aware of these analyses. Staver wrote:
Unlike other state constitutions, the Massachusetts
Constitution is quite unique in reference to marriage. In the section of the
state constitution that sets up the judiciary, there is one, and only one,
limitation on the power of the courts – the limitation on judicial authority
over marriage. As one of the original 13 colonies, Massachusetts’ experience
with marriage bears some explanation. Originally, The Governor and the
Governor’s Council handled all matters pertaining to marriage. To get married
or divorced, the parties went before the Governor or the Council, not the
Courts. The judiciary was a fledgling branch, a ninety-pound weakling if you
will. When the state constitution was adopted, it left marriage where it had
always been – with the Executive branch. Thus, the state constitution gives
absolute authority over marriage to the Governor and the Governor’s Council.
The constitution then states that the Legislature may delegate some authority
over marriage to the other branches, namely to itself or to the courts. The
Legislature has only twice delegated authority to the Judiciary. In 1785, the
Legislature gave authority to the courts over divorce and alimony. In 1836, the
Legislature gave the courts authority over annulment and affirmation. Outside
of these four limited areas, the courts have no other authority over marriage.
In its decision on November 18, 2003, when the Massachusetts
Supreme Judicial Court issued its ruling regarding same-sex marriage, the court
acknowledged that marriage has always been understood as the “union of one man
and one woman,” but the court then redefined marriage to mean the “union of two
persons.” In doing so, the court usurped the power of the Executive and
Legislative branches of government and therefore violated the [federal]
Guarantee Clause….
Governor Mitt Romney could refuse to enforce the Supreme
Judicial Court’s ruling. As noted, the state constitution vests the Executive
branch with authority over “causes” of marriage. While neither the Governor nor
the Executive can redefine marriage from its undisputed meaning in the state
constitution absent a constitutional amendment, the Executive retains authority
over causes of marriage other than divorce, alimony, annulment and affirmation.
Thus, the Executive has the authority to preserve the definition of marriage,
and thus the authority to issue an Executive Order prohibiting the issuance,
solemnization and recordation of same-sex marriage licenses. Moreover, since the
Executive branch enforces the law, it does not have to implement or enforce the
decision of the Massachusetts Supreme Judicial Court. Without the Executive
branch enforcing the court decision, the court’s ruling is meaningless. The
Department of Public Health, the Registrar and the City and Town Clerks all
come under the Executive branch.
No matter.
In late March, the Legislature passed the Travaglini-Lees
compromise amendment (sending it on to the next session for a second
legislative approval before it could go to the voters). Only because Romney
lobbied Republican legislators did it pass.[63]
With that in hand, in April 2004 the Governor said he wanted
the Court to stay its ruling until the constitutional amendment issue could
sort itself out. It was obvious that a stay was extremely unlikely.[64]
Even approaching the Court was a convoluted problem. The Attorney General had
already refused Romney’s request to represent him, so the Governor filed an
“emergency” bill in the Legislature for special permission to petition the
Court as a citizen represented by counsel. Former SJC Justice Joseph Nolan
wrote to all legislators asking them to support the Governor’s bill.[65]
Did Romney really think the Legislative leadership would honor this request?
Both the Senate President and House Speaker said they were too busy with the
budget to pay any attention to the marriage issue.[66]
The Boston Globe reporter opined:
From a political standpoint, the governor’s effort appeared
designed to demonstrate one last time that he tried to block gays from marrying
in this state, and to give him room to blame the Democrat-run Legislature for
refusing to allow him even to ask the SJC to stay its ruling.[67]
The lead homosexual lobbyist, Arline Isaacson, agreed:
Romney, Travaglini and House Speaker Tom Finneran held a
conference call on the night before Romney announced his bill, said Travaglini
spokeswoman Anne Dufresne, although she was unsure whether the governor
attempted a head count of votes in either house. Dufresne said it is “unlikely”
the governor’s legislation will come up for a vote in the Senate.
Asked if the governor expected the legislation to pass,
[Romney spokeswoman] Feddeman said the bill was making progress in the House
and that Romney “[looks] forward to hearing from members of the Legislature.”
Isaacson said Romney’s emergency legislation is an effort to
appeal to conservatives outside of Massachusetts in preparation for a future
run for office outside the Bay State.
“There’s nothing else that he can do, really, and he’s desperate
to prove his right-wing credentials to a national audience, which is why he’s
acting more like a religious zealot than the CEO of the state who is determined
to follow the law,” said Isaacson.[68]
Perhaps it was just a useful ploy to divert everyone’s attention
from his Town Clerk and JP training, and marriage license preparations.
Attorney General Reilly said Romney’s predictions of legal
chaos (his argument for a stay) were overblown. After all, his office had been
communicating “regularly with Romney’s administration, offering legal guidance
on how to implement the court’s ruling since early March.”[69]
April 22, 2004: As the Governor was bowing before
the Court (Please, grant a stay so the citizens
can vote on marriage!) and simultaneously preparing to issue same-sex
marriage licenses, Article 8 Alliance-MassResistance demonstrators pointed to
the core problem: the rogue judges. Inside the State House that day, Brian
Camenker of Article 8 Alliance and Rep. Emile Goguen were holding a press
conference demanding the removal of the four judges, and exposing Chief Justice
Margaret Marshall’s ethical violations. See Chapter VI. (MassResistance photo)
To recap: Romney said he had to wait for the Legislature to
act on an amendment before he could take any action. Then if a marriage
amendment passed that first hurdle, he could try to get a stay from the Court …
if only he could get the Attorney General to represent him. The AG refused.
Then he tried to get permission from Legislature to approach the Court through
an “emergency” bill. They also refused him. What were the chances that the
Court that decided Goodridge would respond favorably to logical
arguments about avoiding “legal chaos,” in any case? Clearly, zero.
In fact, Romney could have gone to the Court on his own
(without counsel) to argue for a stay, without getting permission from the
Legislature. Why did he not do so? According to Professor Hadley Arkes:
…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.[70]
[Emphasis added.]
Arkes’s guess on Romney’s motives for “receding” may not be
the most plausible explanation for his inaction. At the time Arkes wrote this,
Romney’s pandering 1994 letter and 2002 campaign promises to the Log Cabin
Republicans were not public knowledge. Nor was it known that Romney’s Chief
Legal Counsel, Daniel Winslow, was supportive of the Goodridge ruling.
(See section below on Romney’s advisors.)
Romney said that if his late-filed bill (for permission to
appear before the Court) were rejected, same-sex marriages would start on May
17. “If the Legislature refuses, so far as I know and based on the best
judgment I have at this point, it’s done.”[71]
But Romney said the court’s ruling, and the possibility that
voters will overturn it in 2006, raise several legal questions that make the
situation extremely confusing. He placed the blame for the confusion on the
Legislature, which has yet to follow a directive from the SJC to change the
state’s marriage laws to reflect the legalization of same-sex matrimony.
“I believe the reason that the court gave 180 days to the
Legislature [following the ruling] was to allow the Legislature the chance to
look through all of the laws developed over the centuries and see how they
should be adjusted or clarified for purposes of same-sex marriage; the
Legislature didn’t do that. Without an extension of the stay, it leaves it
to the executive branch … the responsibility to sort out as well as we can how
we can interpret and execute these laws.”[72]
[Emphasis added.]
But the “laws” on the books were clear: husband/wife,
man/woman marriage only. There was nothing new to “interpret” or “execute.”
Once the Legislature rebuffed the Governor, he felt free to
proceed publicly with his plans to implement the ruling as if it were law. Town
Clerks and Justices of the Peace would have to comply. Apparently, Romney’s
Chief Legal Counsel, Daniel Winslow (whose office was working with the Attorney
General) pushed Romney in this direction. Winslow told CNS News: “We’ll leave
it to the courts to litigate what the law is, but once the courts have ruled,
if you’ve taken an oath under the constitution, you have to follow your oath.”[73]
In mid-April Romney finally confirmed “his administration
has been preparing for legalized gay marriage by scheduling training sessions
for city and town clerks from May 5 to 12, and by ordering new, gender-neutral
marriage certificates.”[74] Romney’s Registrar of
Vital Records and Statistics at the DPH, Stanley Nyberg, sent a letter to all
City and Town Clerks dated April 15, informing them of training sessions to
prepare them for “the current implementation date” for same-sex marriages on
May 17. Nyberg notes that his office is “working closely with the Department of
Public Health Office of the General Counsel to resolve legal questions, provide
clear guidance, and to develop sound policy and procedure to correctly comply
with this ruling.”[75] And when the Justices of
the Peace asked what was happening, the Governor’s Legal Counsel agreed to meet
with them at the end of the month for “appropriate guidance.”[76]
Thus, as the six-month supposed “deadline” drew close,
Governor Romney decided to take matters into his own hands and run with
same-sex marriage. How curious, because the Court had not ordered – or
even suggested – the Executive Branch should do anything. (Not that it had the
constitutional authority to do so.) So again we ask: Why did the Governor
proceed to implement same-sex marriage?
Romney’s testimony before the U. S. Senate (in favor of a
federal marriage amendment) about a month after the same-sex marriages began is
revealing. He dissembles on what exactly happened in the months just before May
17, 2004. It seems the marriage licenses, issued by the Department of Public
Health under his authority, simply started appearing:
And so the Court simply redefined marriage, and, based on
their reading of the Massachusetts Constitution, declared that “the right to
marry means little if it does not include the right to marry the person of
one’s choice.”…In response, our legislature proposed a constitutional amendment
that “only the union of one man and one woman shall be valid or recognized as a
marriage in Massachusetts,” and establishing civil unions for same-sex couples.
… Because it will take time to follow the process of
constitutional amendment in the Commonwealth, I asked the Massachusetts
Attorney General to call for the Court to withhold their pronouncement until
the people could consider the question, so that they would not be excluded from
a decision as fundamental to our societal well-being as the definition of
marriage. He declined to do so. Several last minute challenges to the decision
were also summarily rejected.
So, as a result, on May 17, the Commonwealth of
Massachusetts began issuing marriage licenses to persons of the same sex.[77]
Governor Romney’s specific actions
implementing same-sex marriage
In April 2004, Romney’s Chief Legal Counsel, Daniel Winslow,
issued a directive to the Justices of the Peace that they must perform same-sex
marriages when requested, or “face personal liability” or be fired. (At least
several Justices of the Peace are known to have resigned.[78])
Training sessions were held in late April. The AP reported that the
“court-ordered legalization” of gay marriages would proceed on May 17. Romney’s
Chief Legal Counsel “Daniel Winslow said that Romney fully expects the justices
to comply with state law as it stands that day.”[79]
Winslow led training sessions for Justices of the Peace:
“Gov. Romney understands and respects that people have very
strong personal views both for or against same-gender marriage,” Winslow told a
gathering of justices. “But on this point, the law is clear. If a
justice of the peace cannot comply with his or her oath of office, then we
would expect that person to tender their resignation from that office.”
Refusing to marry gay couples could leave justices
individually liable, raising the possibility of punitive damages in court,
according to an official from the Massachusetts Commission Against
Discrimination, who also addressed the gathering….
“Obviously, there is a real unquantifiable risk involving
the decision not to marry gay couples,” said David Fried, the commission’s
chief of enforcement. “The law at this point is clear and to the extent
that the justices of the peace have taken an oath to follow the law, it seems
to me both appropriate and wise to do so.”
The justices received their instructions even as Romney
announced his intention to block out-of-state gay couples from marrying in
Massachusetts under a 1913 law that bars unions that would not be legal in the
couples’ home state.[80]
[Emphasis added.]
The AP story also noted Romney’s order to the DPH to change
the marriage licenses from “bride/groom” to “Party A/Party B.” Winslow told the
Justices of the Peace that they could declare whatever the couple wanted at the
end of the ceremony instead of “man and wife,” for instance, “bride and bride,
groom and groom, or simply declare them married.”[81]
Romney’s staff held training sessions for
Town Clerks
Romney’s staff held training sessions for Town Clerks on how
to implement the “new law” and warning them they must “uphold the law” –
although the training document admits that the marriage statutes had not been
changed. These shabby training slides are the closest the state has come to
a new marriage “statute” since Goodridge. And they were found on the GLAD
(Gay & Lesbian Advocates & Defenders) web site, first posted there two
days after the first known training session. (Did GLAD have had a hand in
drafting these guidelines?) The complete group of slides is available online.[82]
Notable in the Town Clerk training slides are these (direct
quotes):
++++++++
1. Notice of Intention of Marriage
- Implementing the Goodridge decision
- Updating clerk instructions
- Examples
2. What did the Supreme Judicial Court decide in Goodridge v.
Department of Public Health?
On November 18, 2003, the Massachusetts Supreme Judicial
Court (“SJC”) declared 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.”
The SJC allowed 180 days before entry of judgment “to permit
the Legislature to take such action as it may deem appropriate in light of this
opinion.” The 180 day stay expires on Sunday, May 16, 2004.
3. Did the legislature make any statutory changes to
facilitate the implementation of Goodridge?
No. The legislature has not made any statutory changes to
the marriage laws to facilitate the implementation of Goodridge.
4. Did the SJC in Goodridge set aside the marriage
registration statutes found in M.G.L. c. 46 and c. 207?
No. The SJC has preserved the marriage licensing statute,
and refined the common-law definition of civil marriage to mean the voluntary
union of two persons as spouses to the exclusion of all others.
5. Has the Massachusetts Constitution been amended?
Not yet. The Legislature passed a proposed constitutional
amendment that would declare that marriage is only the union of one man and one
woman, and would give two persons of the same sex the right to form a civil
union if they meet the requirements set forth by law for marriage. Civil unions
for same sex couples would provide entirely the same benefits, protections,
rights, privileges, and obligations that are afforded to married people.
The next legislative session will have to vote on and pass
the bill in order for the proposed amendment to be presented to the voters in
the November, 2006 election.
6. When can clerks begin accepting Notices of Intention from
applicants who intend to marry a person of the same sex?
May 17, 2004.…
++++++++
The slides appear to have been hastily assembled. Note also
(in the complete online document) that Slides 33, 34, and 37 invite lax
enforcement of the ban on out-of-state same-sex couples. According to Slide 33
(“How may a clerk satisfy himself about where a person resides?”) and Slide 34
(“How may a clerk satisfy himself about where a person intends to continue to
reside?”), only the applicant’s signature (as sworn affidavit) is needed to
confirm Massachusetts residency; no documentation is required. Slide 37 (“What
if a person does not have any type of document that confirms where he resides
and intends to continue to reside?”) states a clerk “may… refuse to
issue the license” if they are not satisfied due to “lack of documentation.”
(This becomes an important issue as Romney makes a show of barring marriages
for out-of-state same-sex couples, as discussed below.)
In Slide 46 (“Why is this question [i.e., if applicant
was/is in civil union or domestic partnership] included on the Notice of
Intention?”), a glaring loophole would allow a polygamous civil union and
same-sex marriage combination:[83]
46. … Because the law in Massachusetts does not currently
make a civil union or domestic partnership an impediment to marriage, neither a
civil union or [sic] a domestic partnership is an impediment to marriage. You
will be notified if this changes in the future.
How could such sloppy documents come from Governor Romney’s
legal office?
If these slides are as close as Massachusetts has come to
“fixing” the marriage statute to allow for same-sex couples, then they deserve
close scrutiny and should be posted on the Law Library site again. And it
should be noted exactly which office authored them. (Clearly it was not the Legislature,
the only constitutionally recognized body for passing “laws.”)
Romney directed his Department of
Public Health to change the state marriage license to read “Party A” and “Party
B”
Romney directed his Department of Public Health to change
the state marriage license to read “Party A” and “Party B”[84]
(replacing “Bride” and “Groom”) to allow for same-sex couples. But the paper
trail is not publicly available. Such a change needed to have been authorized
by the Legislature via a new statute, but had not been. Nor had the Court even
ordered the change. No Executive Order exists relating to this. No
administrative regulations have been found. This was stealth governance.
Romney’s Chief Legal Counsel Daniel Winslow told the GLBT
lobby in September 2010 that it was he who devised the “Party A” and “Party B”
wording, and that there was opposition from outside but not inside the
Romney administration to this change from “Bride” and “Groom.” This was meant
as a sign of “respect and dignity for same sex couples and a general equality
for all parties entering into marriage.” (See section below in this chapter on
Romney’s advisors.)
Romney was lax enforcing law barring
out-of-state same-sex couples from marrying in Massachusetts
The Governor’s staff was clearly reviewing the statutes
controlling marriage in Massachusetts in the spring of 2004. However, Romney
and his staff (apparently following advice from former Attorney General Edwin
Meese and Matthew Spalding of the Heritage Foundation) chose to focus on the issue
of out-of-state couples:
[In April,] Shawn Feddeman, a spokeswoman for Romney, said
the governor’s legal staff is still attempting to understand how to implement
the SJC’s marriage ruling and is sifting through several state statutes in
preparation for May 17.
“We’re currently reviewing all relevant [Massachusetts]
laws, including that one [on out-of-state couples], and we anticipate providing
instructions to city and town clerks at the scheduled information sessions,”
Feddeman said.[85]
(But the Governor and his staff appear not to have spent
much time reviewing the Massachusetts Constitution.)
Romney initially made a big show of enforcing the “1913 law”
which barred out-of-state couples from marrying in Massachusetts if the
marriage would be invalid in their home state.[86] The Governor said in
April 2004, “Massachusetts should not become the Las Vegas of same-sex
marriage. We do not intend to export our marriage confusion to the entire
nation.”[87] The hyper-emphasis on
this question may have been partly a diversionary tactic directed at those
concerned with in-state couples being issued unconstitutional marriage
licenses – as well as a way to please conservatives in the rest of the country.
As noted above, the Town Clerk training slides (#33, 34, and
37) allowed lax enforcement of this law. Yet scofflaw clerks around the state
still complained about the documentation to prove residency and said they would
not comply. “In Provincetown, a resort area that attracts many homosexuals,
officials said they would not abide by Gov. Mitt Romney’s order to have
applicants show proof of in-state residency or intention to live in the state.”[88]
By May, the Governor backed off his earlier hard-line stance
on verification (announced in April), and said clerks could exercise discretion
on residency proof.[89]
“What conscientious clerk ever would issue a license in
violation of Massachusetts law when the consequences and ramifications to
children and innocent parties would be so great?” [Romney’s Chief Legal
Counsel] Winslow said ... “I simply can’t see that any clerk would do that.”
The state planned to hold the first of five training session
for clerks Tuesday afternoon in Barnstable. At the session, clerks will see the
state’s new intention-to-marry forms, which have been altered to remove gender
references and now include a place to show what proof of residence was
provided.
The state Department of Public Health plans to advise clerks
that written proof is the best documentation, though the sworn oath of the
couple applying for marriage is legally acceptable, Winslow said.[90] [Emphasis added.]
But the abuses became so apparent that the Alliance Defense
Fund filed a civil action against clerks who were issuing undocumented marriage
licenses to out-of-state couples in late May 2004.[91]
Later, the Boston Globe reported that the willful negligence by clerks
was continuing on June 17:
But now those dissenting clerks have joined the majority,
following Romney’s interpretation of state law by accepting applications from
out-of-staters only if they declare an intention to move here. Still, the
only proof required is the couple’s word. … Clerks said that some
out-of-state couples were probably discouraged by Romney’s warnings.[92] [Emphasis added.]
And then, the issue died down. Clearly, the loophole in the
Town Clerk training slides (above) allowed this abuse to continue. (The law
regarding out-of-state couples was repealed in 2008.)
Romney issued special
discretionary certificates to at least 189 same-sex couples to allow anyone
they chose to officiate at their wedding
Governor Romney issued special discretionary certificates for
at least 189 same-sex weddings in 2005, and possibly more in 2004 and 2006.[93]
The special certificates allowed anyone of the couple’s choosing to preside at
their “marriage” ceremony (not just a clergy member or Justice of the Peace).
This was an option the Governor could choose to exercise, or not. There
was no requirement to issue the special certificates to anyone who applied. The
Boston Globe report noted:
The applications [for officiants] Romney approved included at
least four from state legislators, including Jarrett T. Barrios, [an open
homosexual and radical gay activist] state senator from Cambridge, members
of the clergy from out-of- state, family members, and friends.
One of the applications he approved came from state Senator
Stanley C. Rosenberg, an Amherst Democrat who officiated at the wedding of two
constituents in June 2004. Rosenberg said that he "appreciated the fact
that [Romney] didn't let his personal feelings stand in the way of people being
able to get those one-day licenses." …"I just filed the application
and was pleased when it was very quickly approved," Rosenberg recalled.
"There was no delay; there was no difficulty at all."
Another applicant, John M. Iredale, expressed joy over the
wedding he officiated last August for a longtime friend and his partner.
"People need to be happy. It's `life, liberty, and the pursuit of
happiness,' " Iredale said in an interview. "Good luck to them.
They're just wonderful people."
Romney's approval of the requests for same-sex couples
could make for trouble as he tries to gain a toehold in primary states where
conservative voters hold sway…. "In Iowa, I don't care who you are,
you do something like that, you're going to have to explain yourself,"
Leon Mosley, cochairman of the Iowa Republican Party, said …[94]
[Emphasis added.]
Romney did all that, but continued to
blame the Court and Legislature for the gay marriage problem
Commentators across the country had advised Romney to ignore
the illegitimate ruling. Hugh Hewitt (later a Romney cheerleader), Phyllis
Schlafly, Mathew Staver (Liberty Counsel), Jan LaRue and Robert Knight
(Concerned Women for America), Pat Buchanan, and even Ron Crews of the
Massachusetts Family Institute had reminded him of the principle of separation
of powers. (See numerous quotes in Chapter IX, Mitt Romney’s Deception.)
Some attorneys and researchers working with the Massachusetts Catholic
Conference had also advised or seriously considered this. We understand from an
inside source that attorneys at the Alliance Defense Fund had advised Romney to
ignore the legally void ruling.[95] Yet Romney still
implemented the Court’s wish for gay marriage.
As noted, Romney could have legally ignored the Goodridge
ruling, because the Massachusetts Constitution expressly forbids the Judiciary
making laws, repealing laws, or ordering another branch to do anything. It also
gave the Governor and Legislature (but not the Court) authority over this
aspect of marriage.[96] And there is strong
precedent for ignoring such a court decision. President Abraham Lincoln refused
to enforce the 1857 Dred Scott decision, which had declared that a slave was
the property of the master, even if they were both physically in a free state. Lincoln
said in his Inaugural Address of 1861 that if he enforced the ruling, the
people would have ceased to be their own rulers:
… the candid citizen must
confess that if the policy of the Government upon vital questions
affecting the whole people is to be irrevocably fixed by decisions of the
Supreme Court, the instant they are made ... the people will have ceased to be
their own rulers, having to that extent practically resigned their Government
into the hands of the eminent tribunal. Nor is
there in this view any assault upon the court or the judges.[97]
Further, the SJC had no way of implementing or enforcing
its ruling. The Executive branch is the implementer, not the Court – and only
of laws, not rulings. As President Andrew Jackson famously said of a
Supreme Court ruling with which he disagreed: “The decision of the supreme
court has fell still born, and they find that they cannot coerce Georgia to
yield to its mandate.”[98] But for some reason,
Romney yielded to the SJC’s unenforceable mandate.
Romney’s marriage amendment strategy, meanwhile, was
predictably going nowhere. The Travaglini-Lees compromise amendment was
defeated in September 2005, replaced by a new citizens’ referendum amendment,
VoteOnMarriage. By 2006, Romney had turned the issue into simply “letting the
people vote” (reflected in the name of the new proposed amendment) and
protecting our constitutional “democracy.” He suddenly became a
constitutionalist! But would this successfully divert attention from his
earlier (and indeed, ongoing) failure to uphold the Constitution?
He knew he had to “actively court the Christian right to
make a successful run for the Republican Presidential nomination.”[99]
So he spoke in person at a Family Research Council event in Boston in October
2006, dubbed “Liberty Sunday,” where he called for a federal marriage amendment
– and blamed all of the Massachusetts troubles on the Court. Tellingly,
he implied in that speech that if it were not for the “children” factor,
homosexuals just might have a “right” to full-fledged marriage. (Recall that
the only argument he ever really makes for preserving traditional marriage is
that “every child deserves a mother and a father.”) While he slammed “the
religion of secularism” for rejecting traditional values, he made no mention
that he has adopted the secularist value of respecting “sexual orientation
diversity” – which contradicts those very values.
FRC reported Romney’s remarks (from October 2006):
Governor Romney: Thank you. Thank you. Thank you. You know,
I began a few minutes ago by saying that the authors of liberty recognized a
divine creator who gave to each one of us certain inalienable rights. They
affirmed that freedom of religion would be our base, and they proscribed the
establishment of any one religion. But today there are some people who are
trying to establish one religion: the religion of secularism. They not only
reject traditional values, they reject the values of our founders and they cast
aside the wisdom of the ages.
Their allies are activist judges and here in Massachusetts
activist judges struck a blow to the foundation of civilization: the family.
They ruled that our Constitution requires people of the same gender to marry. I
believe their error occurred because they focused on adult rights. They said that
if heterosexual adults can marry, then homosexual couples have to also be able
to marry to have equal rights, but what they ignored is that marriage is not
primarily about adults. Marriage is about the nurturing and the development of
children. (Applause.) A child’s development is enhanced by the nurturing of
both genders. Every child deserves a mother and a father. (Applause.)
Of course, the principal burden of this court’s ruling
doesn’t fall on adults; it falls on children. We’re asked to change the state
birth certificate: to prevent heterocentricity, mother and father would become
Parent A and Parent B. An elementary school teacher reads to a second grader
from a book titled “The King and the King” [sic; King and King] about a prince
who marries a prince, and a second grader’s father is denied the right to have
his child taken out of that classroom while the book is being read. Our state’s
most difficult-to-place adopted children may no longer placed by Catholic
Charities because they favor homge [sic] is paid by the children. Our fight for
marriage, then, should focus on the needs of children, not the rights of
adults.
In fact, as Americans, I believe that we should show an
outpouring of respect and tolerance for all people. I believe God loves all of
his children, that no one is abhorred, that regardless of the difference and
the different choices, we should show that same respect. (Applause.) As
Americans, we must vigorously reject discrimination and bigotry. Massachusetts
is on the frontline of marriage, but unless we adopt a federal amendment to
protect marriage, what’s happening here will unquestionably enter every other
state. This spreading secular religion and its substitute values cannot be
allowed to weaken the foundation of the family or the faith of our fathers who
more than life, their country [loved] – (audio break).[100]
For all of Romney’s attempts to be conciliatory towards the
homosexual extremists, they did not return the favor. There was a large and
rowdy pro-gay-marriage protest held in front of the church during the “Liberty
Sunday” event. The homosexual newspaper Bay Windows headline read, “Liberty
Sunday a dramatic hatefest; Hard-right evangelicals, plus one high profile
Mormon, blow through Boston.” Protesters accosted people as they exited,
with chants of “SHAMEFUL! SHAMEFUL!” and “Silence equals death!” There were
signs reading “Love Is for All”; “MITTLER”; “Romney a Disgrace”; “Massachusetts
Is No Place for Hate”; “Religious Liberty Is Not A License For Bigotry”; and
“No Discrimination in the Constitution – MassEquality.” Bay Windows
reported, “As [Tony] Perkins [of Family Research Council] left one protester
shouted, drawing out each syllable as much as humanly possible, 'F**k you,
motherf**ker!'”[101]
May 17, 2004: Same-sex “marriages” began on Boston City
Hall Plaza. Pro-family demonstrators were greeted with this sign (on the
rainbow flag blocking their banners). Is this what Romney feared the most?
Being branded a “bigot”? But no matter how hard he tried to please them,
homosexual activists still called him a bigot. True believers in “gay rights”
call anyone who stands for man/woman marriage a “bigot” – yet Romney says he
believes in “gay rights.” (MassResistance photo)
A month later in November 2006, Romney staged his
extravagant “Rally for Democracy” on the State House steps to announce a
lawsuit to force the legislators to vote on the VoteOnMarriage amendment.[102]
He was defending the Constitution and the people’s right to vote! This time, he
was blaming the Legislature.
The photo-op rally was actually the kickoff of his run for
the Republican nomination for President:
Mitt Romney wasted no time talking up his presidential bid
online, hitting conservative blogs yesterday with advertisements portraying him
as Reagan-style Republican ready to take on “jihadists.”... Romney’s ads carry
a photograph of his face with the American flag shown in the backdrop. [from
the State House rally] ... The ad has been posted on about 23 blogs so far,
said Kevin Madden, a spokesman for the Romney committee.[103]
Why had he not held a rally for the Constitution in 2003 or
2004?
Governor Romney’s photo-op “Rally for Democracy” on
November 19, 2006. He called for enforcing the Massachusetts Constitution –
meaning in this case, requiring legislators to vote on the VoteOnMarriage
amendment. (See Chapter VI.) But Romney had clearly ignored the Constitution
himself when implementing same-sex marriages in 2004 and refusing to call for
removal of the four rogue judges. Why didn’t he hold a “Rally for the Constitution”
in 2003 or 2004? (MassResistance photo)
Governor
Romney’s advisors on the marriage ruling, 2003-2004
To what extent was the Governor led by his advisors? Marc
Ambinder (National Journal) wrote in early 2007:
Led by Peter Flaherty, a former prosecutor who was
Romney s deputy chief of staff and unofficial emissary to social conservatives,
the governor’s staff consulted outside legal experts: Matthew Spalding,
a constitutional and legal historian at the Heritage Foundation, who put
together a briefing book; Mary Ann Glendon, a constitutional law
professor at Harvard; and Joseph Nolan, a former justice of the state’s
highest court. Unsolicited advice poured in from advocacy groups and think
tanks. Some people urged Romney to defy the court’s ruling. The governor
rejected that idea, but “everything else was open to debate and was
considered,” said Daniel Winslow, his general counsel at the time.[104] [Emphasis on
names in original.]
Why did Romney reject the idea of defying the ruling?
Ambinder does not say.
How conservative was Peter Flaherty, his Deputy Chief of
Staff (also an attorney)? And if Romney was truly a “social conservative,” why
would he need an “emissary to social conservatives”? Three of us “social
conservatives” from MassResistance did not receive a warm welcome when we met
with Flaherty in May 2006. (See Chapter IV.)
Professor Hadley Arkes, who was well informed on what was
happening in the Governor’s office, wrote that Romney’s “conservative”
attorneys were partly at fault for the 2004 disaster:
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.[105]
The supposedly “conservative” lawyer
probably closest to Romney during the constitutional crisis was his Chief Legal
Counsel, Daniel Winslow. Winslow was a graduate of Tufts
University and Boston College Law School who had worked with Romney on his 1994
Senate campaign. Winslow delivered the training sessions for the Town Clerks
and JPs in May 2004. Undoubtedly, he coached Romney in the terminology to use: The
administration would “uphold the law” as determined by the Court.
Governor Romney’s Chief Legal Counsel at the time
of the “gay marriage” crisis: Dan Winslow (right) shakes hand with fellow
liberal Republican, Richard Ross (now State Senator, on left) during the 2010
election. Winslow at that time was running for State Representative and
received the endorsement of the Mass. homosexual and transgender lobby.
(Winslow campaign photo)
It came as no real shock to learn that Attorney Winslow
later admitted he was 100% on board with the radical homosexual agenda. In
September 2010, Winslow decided to run for State Representative (as a RINO) –
and who should endorse him but the “leading LGBT lobby group” in Massachusetts!
They were pleased with his work for Romney, implementing same-sex marriage.
Winslow “received a unanimous endorsement of the room which included mostly
Democrats, Stonewall Democrats, various Democratic delegates, an ACLU lawyer
and the Chair of the Massachusetts Transgender Political Coalition.” They
revealed that it was in fact Winslow who pushed for the “Party A-Party B”
marriage license terminology and recognition of Goodridge as “law” that
had to be followed. Tom Lang[106] at KnowThyNeighbor.org
(the group behind publishing names of signers of marriage referenda in
Massachusetts and other states), a happy activist with “elite” political
connections, was pleased to report:[107]
++++++++
Massachusetts Gay Lobby Endorses
Mitt Romney’s Attorney for 2010 House Seat
By KnowThyNeighbor.org [Tom Lang]
The Massachusetts Gay and Lesbian Political Caucus
(MGLPC), the Leading LGBT Lobby Organization and Key Architect for the
Strategy Securing Marriage Equality, Has Endorsed Republican Daniel Winslow
(9th Norfolk) And Former Mitt Romney’s Chief Legal Counsel Over Democrat
Challenger Stanley Nacewicz For the Massachusetts House of Representatives
Led by Co-Chair Arline Isaacson, the MGLPC voted unanimously
in last week’s annual meeting to endorse the Republican, Daniel Winslow over
his Democratic challenger, Stan Nacewicz for the Massachusetts House Seat
representing the 9th Norfolk District in Fall 2010. This District seat was
formerly held by Richard Ross (R) who vacated it when he succesfully [sic] ran
for Scott Brown’s (R) Massachusetts Senate Seat after Brown’s historic victory
took him to Washington, DC.
But what makes this endorsement very unusual in LGBT
politics is that Dan Winslow was Governor Mitt Romney’s Chief Legal Counsel
during Massachusetts fight for Marriage Equality (2002-2005). Romney as we
all remember worked with the bigots at the Massachusetts Family
Institute as well as the Catholic Church, Black Ministerial Alliance and
various and sundry other anti-gay organizations to redact the Goodridge
Decision, stop same-sex marriages, and leave gays and lesbian couples, their
families and children unprotected in the Commonwealth.
Arline Isaacson touted Republican Dan Winslow for his
support of The Goodridge Decision, his zero tolerance of hate crimes and
told the Caucus gathering, “Winslow is what we need,” in terms of a Republican
that understands LGBT issues. Isaacson also gave a bit of insight into Winslow’s
history as the Romney attorney that changed our state’s marriage license
wording from “Bride and Groom” to “Party A and Party B” …
So what does KnowThyNeighbor think about this? I [Tom Lang] interviewed
Dan Winslow extensively after the Caucus endorsement meeting. On the
subject of Marriage Equality post Goodridge, Winslow says that Massachusetts
needs legal updates. Winslow told me that during the Romney days many within
the administration insisted that MA marriage licenses continue to read “Bride
and Groom” as, according to Winslow, some wanted same gender couples to “have
to decide which would be the bride and which would be the groom” or in other
words force same-sex couples to humiliate themselves. Winslow was the one
who pushed the “Party A/Party B” nomenclature as one of respect and dignity for
same sex couples and a general equality for all parties entering into marriage.
Winslow wanted to make me understand that he has 3 important legal changes to
state laws post Goodridge that to him are of the utmost urgency. One, changes
to current birth certificates which would recognize same sex couples. Two, the
inclusion of “civil unions” and “domestic partnerships” as impediments to MA
marriages (currently, two people of the same gender could be married to one
another in MA while being part of a dom[estic] partnership in Washington State
to another person).[108]
And Three, that MA courts must retain the jurisdiction of divorce when it comes
to our same-sex marriages.
Comments: Dan Winslow said... Many thanks Tom. Just
to clarify, the “bride/groom” discussion refers to others outside the
administration who were lobbying me against changing the form. I was not
referring to conversations within the administration. This endorsement
means a lot to me personally and I am proud to have the support of Democrats as
well as Independents and Republicans on these issues as well. We need to work
together to move forward. [Emphasis added.]
++++++++
What more is needed to suggest that Mitt Romney’s
administration was actively working for “gay rights” and “gay marriage”?
Romney surely understood his Chief Legal Counsel’s bias and, most likely,
shared it. Note that Winslow says in his comment that it was he who
changed the marriage license form. Also, note that objections to changing the
marriage license wording from “Bride/Groom” came from “outside the
administration,” not within.
In late December 2006, Winslow had an email exchange[109]
with Brian Camenker of MassResistance (just after the publication of our
report, “The Mitt Romney Deception”[110]). It confirms not only
that he believed the Court ruling to be “law,” but that he, and therefore
Romney, were well aware of the Article 8 Alliance-MassResistance critique:
++++++++
To: info@massresistance.org
Sent: Wednesday, December 27, 2006 10:59 PM
Subject: Feedback Form
Comments:
Dear MassResistance,
I have followed your coverage of the equal marriage debate
for several years and appreciate the passion (and sense of social justice) you
bring to the cause. However, I must correct an error in your timeline that
involves me: your February 2004 entry reads that Romney’s Legal Counsel (me at
the time) advised Justices of the Peace that they could invoke “conscientous
[sic] objector” status and refuse to perform same sex marriages. In fact (and I
can provide multiple news stories if you wish documentation), I addressed the
JPs (some of whom had announced they would refuse to marry same sex couples)
and informed them that they had a constitutional duty to follow the law as
stated by the SJC and perform same sex marriages or resign if they couldn’t
uphold their oath of office. When I advised one JP in response to her question
that there was no such thing as “conscientous [sic] objector status, she
resigned on the spot (for which I was excoriated by several fundamentalist web
sites). As you can imagine, I still carry some welt marks from taking that
position, so I’d really appreciate it if your timeline would set the record
straight.
Many thanks. Daniel B. Winslow
++++++++
From: “MassResistance”
To: danwinslow…
Subject: Re: Feedback Form – JPs and conscious [sic] objector status
Date: Fri, 29 Dec 2006 10:47:18 -0500
Dan
Thanks very much for contacting us on this issue.
We had taken our information regarding “conscientous [sic]
objector” status from the July 2004 issue of “Citizen Magazine” published by
Focus on the Family. In discussing the resignation of JP Linda Gray Kelley, the
article says:
For Kelley, a 56-year-old Catholic, it isn’t a tough choice
– even though justices of the peace have the job for life in Massachusetts.
After being assured in February that the justices would be able to file for
conscientious objector status, she was shocked to hear Winslow say they
couldn’t – and to hear an official from the state board of discrimination warn
that trying to get out of officiating same-sex ceremonies could get them sued
for $25,000 to $1 million.
Citizen Magazine has always been a trustworthy authority,
but unfortunately we were not able to verify this independently. We do not
dispute that you later advised the JPs that they must resign if they were not
willing to perform same-sex marriages when asked.
That having been said, if you are telling us that JPs were
never advised about a [sic] any “conscientious objector” status – even as far
back as February 2004 – then, to be fair, we’re willing to remove that from our
documentation until we’re able to come up with better evidence than the
magazine article. This weekend we’re doing a big overhaul of all that, and I’ll
take care of it then.
However, one question keeps bothering us about this. You make
reference to the fact that you “informed them [the JPs] that they had a
constitutional duty to follow the law as stated by the SJC to perform same sex
marriages …”
What “law” are you talking about? The marriage statutes
never changed. The Goodridge decision clearly stated that they were not
changing the marriage statute in any way – they were advising the Legislature
to do it – and the Legislature never acted. And as you know, the Massachusetts
Constitution is very clear and emphatic that the courts cannot change laws,
even if they want to. It is simply forbidden. So why did you (and the Governor)
claim that you were following the law?
The Court rendered an opinion in that particular case, about
what the Constitution means. However, I would like to see where the
Constitution gives the Court the power to “define” the Constitution in a way
that de facto changes laws. This is something that John Adams feared, and put
in safeguards against.
Thanks again,
Brian Camenker
++++++++
From: “Daniel Winslow”
To: info@MassResistance.com
Sent: Friday, December 29, 2006 12:55 PM
Subject: Re: Feedback Form – JPs and conscious [sic] objector status
Brian,
Great to hear from you again. It’s been a long time since
you and I labored together in the political vineyards, and I’m glad to see that
you haven’t lost any of your energy. My understanding is that the earlier
advice came from within the JP association, not from the administration. In any
event, the administration never advised anyone that there was such a thing as “conscientous
[sic] objector” status for constitutional officers (JPs are creatives [sic] of
the Constitution, as are Governors, etc.)
As for the description of Goodridge as the “law” as stated
by the SJC, I suppose we’ll need to disagree. My use of the phrase was the
Constitution as enunciated by the SJC – the ruling of the Court has the force
of law. Romney, despite his fierce and heartfelt opposition to gay marriage,
believed ultimately that his oath of office required him to abide by the
Court’s ruling and instead work through the constitutional process of amendment
of the Constitution. It will be interesting next week to see if the Legislators
feel themselves similarly bound by the oath of office when deciding whether to
advance the repeal of gay marriage for ultimate vote by the people.
Let me know when you’re in Boston in early 2007. I’d enjoy
catching up with you again.
Best,
Dan
++++++++
Note that Winslow did not dispute any other information in
my timeline as originally posted on the MassResistance blog (November 2006),
and later on the MassResistance web site. (See expanded timeline in Chapter
VIII.)
Also in the Governor’s
Executive Office, there were at least several Deputy Legal Counsels with
“progressive” résumés or who were associated with groups
promoting radical feminism, “social justice,” adoptions by homosexuals, and
“diversity.”[111]
Another key advisor, Professor
Mary Ann Glendon (according to Ambinder),“met at least once with Governor Mitt
Romney on how to draft a bill that defines marriage as the union of a man and a
woman, but toes the line drawn by the Supreme Judicial Court.[112]
Glendon also has consulted with gay-marriage opponents.” (Would that imply she
did not advise him to defy the ruling?)
Glendon has been called “one of the most brilliant and
effective and moderate voices at the [Harvard] law school” by colleague
Professor Alan Dershowitz, a same-sex marriage supporter.[113]
In a 1996 Boston Globe profile, Glendon is said to be “writing her own
party line, rebuffed by Bush,” and a “dissenter.” It quotes a conservative
legal scholar who “trashed” her book, A Nation Under Lawyers, in National
Review (and who makes it sound like she shares Romney’s tendency to
prevarication):
Leon Graglia … a conservative legal scholar at the
University of Texas … delivered an unflattering portrayal of the both the
author and the book (he called Glendon’s analysis “soft” and “typically
mushy”). Graglia wrote: “She earns the accolade of ‘moderate’ by, it turns out,
pandering to liberal convention and mythology and hedging her
conservative-sounding arguments to the point of retraction. She defies
political categorization because she typically seeks to have things both ways.”[114]
Attorney General Reilly’s office was working with the
Governor’s office to implement the ruling from March 2004 on. Reilly was
himself pro-same-sex marriage. There was at least one prominent gay-rights
activist on his senior staff, Assistant Attorney General Rob Quinan.[115]
Romney’s 2002
campaign staff and transition team included homosexual activists. Was he
still consulting with any of them?
Patrick Guerriero (right), longtime homosexual activist (recently,
Executive Director of the Gill Action Fund) and sometime advisor to Governor
Romney, is shown here with chief GLBT lobbyist Arline Isaacson, monitoring the
Legislature’s voting on the VoteOnMarriage amendment as it went down to defeat
(June 2007). He was on Romney’s transition team in 2002-2003. (InNews Weekly
photo)
- Patrick Guerriero - former State Representative, President of the
national Log Cabin Republicans at the time of the Goodridge ruling, and
since then executive director of the extremist Gill Action Fund which supports
sexual-radical candidates and organizations around the country. Guerriero
played an active role working with the lobbyists in the State House during
Romney’s term. In early 2004, he worked hand-in-hand with the Human Rights
Campaign to fund a statewide ad campaign opposing the amendment effort.[116]
(Guerriero was also a candidate for Lt. Governor in 2002, until Romney pushed
him aside for Kerry Healey.)
- Mark Goshko – former Massachusetts Log Cabin Republican
president.
- Abner Mason – Deputy Chief of Staff to previous RINO Acting
Governor Jane Swift. Formerly national president of Log Cabin Republicans. (He
had likely advised Swift not to call the Legislature back into session for
their constitutionally required vote on the citizens’ marriage amendment in
2002. See Chapter VI.)
- John Spampinato – Deputy Political Director for Romney’s
campaign, and on Romney’s Diversity Council.
- Daniel Grabauskas - responsible for adding sex-change option to
driver’s license forms when he ran the Department of Motor Vehicles; still
serving in Romney’s administration.
- And others appointed to positions in his administration. (See
Chapter III.)
Other
notable Romney advisors during this crucial time were former Attorney General
Edwin Meese and Matthew Spalding of the Heritage Foundation. John J. Miller
wrote in National Review:
Gay marriage featured prominently in Romney's 2002 election
because everybody knew the Massachusetts supreme court was poised to rule on
the matter. From the start, Romney made it clear that he believes marriage
should exist only between a man and a woman. When the court’s decision came
down, however, it said that the state constitution mandates gay marriages. So
Romney began plotting a counterstrategy, seeking advice from former attorney
general Edwin Meese as well as constitutional scholar Matthew Spalding of the
Heritage Foundation. They zeroed in on an obscure law from 1913 that has the
effect of voiding gay marriages conferred upon non-Massachusetts residents, and
so Romney has used his administrative powers to prevent Boston from becoming a
same-sex version of Las Vegas. Although this policy is now under legal assault,
Romney has so far saved 49 other states from the judicial controversy
afflicting his own.[117]
Matthew Spalding had “put together a briefing book for
Romney.”[118] He later published a
background report for the Heritage Foundation on same-sex marriage dated May
17, 2004 – the day the marriages began in Massachusetts. He wrote:
Despite numerous efforts to block or delay the Massachusetts
court’s controversial edict, the Commonwealth of Massachusetts has been
forced to issue marriage licenses to same-sex couples since May 17. This
decision will remake the entire social structure of the state of Massachusetts
and trigger state and federal litigation throughout the United States.
These judicial decisions – as well as the actions of
local officials who, intentionally contrary to state law, have issued thousands
of fraudulent marriage licenses to same-sex couples – seek to redefine the
institution of marriage by judicial fiat and affirm homosexual “marriage” as a
fundamental civil right that the federal government has a constitutional
obligation to secure nationwide….
Massachusetts faces judicially enforced same-sex
“marriage,” in part, because it lacked a strong public policy on marriage,
allowing the court to declare that there is no rational basis for upholding the
traditional definition of marriage.[119]
[Emphasis added.]
Note these problems in Spalding’s analysis:
·
No attempts to “block” (in the sense of “defy”) the ruling are
known (except for one federal appeal, and that was by legislators, not Romney).
The only sure way to block it would have been to issue an Executive Order to
his DPH not to alter the licenses, and to Town Clerks and JPs not to allow
same-sex marriages. According to Romney’s Chief Legal Counsel Winslow: “Some
people urged Romney to defy the court’s ruling. The governor rejected that
idea, but ‘everything else was open to debate and was considered,’ Winslow
said.” [120]
·
There were attempts to “delay” (or “stay”) the “Court’s edict” –
but all by way of appeal to the very same Court that had issued the edict. How
likely was it that the Court would modify its edict?
·
“The Commonwealth of Massachusetts” was not forced to do
anything. The Court does not control the Department of Public Health or Town
Clerks, or JPs, or the National Guard, or the State Police. The Governor does.
How would the Court have “forced” its ruling on the Commonwealth if the
Governor had not stepped in to help?
·
The “thousands of fraudulent marriage licenses” (“Party A/Party
B”) were printed by the Department of Public Health – which was under Governor
Romney’s control, not the Court’s. At least Spalding recognizes these are
“fraudulent” (as MassResistance has pointed out ever since May 17, 2004). Would
Romney agree with this advisor now that these are “fraudulent marriages”?
·
The “local officials” (Town & Municipal Clerks) guilty of
issuing the “fraudulent marriage licenses to same-sex couples” were trained to
do so by Governor Romney’s staff. Similarly, Romney’s Legal Counsel instructed
Justices of the Peace that they would be forced to resign and possibly face
fines for illegal discrimination if they refused to perform same-sex weddings.
The local officials were under the Governor’s authority, not the Court’s.
·
“The successful implementation of the Massachusetts court’s
decision will create a strong precedent,” he writes. The implementation
was Governor Romney’s doing, not the Court’s.
·
Would the addition of a rational argument for one man/one woman
marriage carry any weight with an irrational Court?
Throughout his analysis, Spalding never mentions the
principle of separation of powers, or the duty of the Executive Branch to
implement and enforce the law as it existed and to check “judicial
usurpation.” He talks of the redefinition of marriage being “imposed by the
courts.” It’s only imposed if a Governor allows it to be, accepting it as a new
“law” he must implement. Why would a “conservative” analyst assume that once a
court opinion is stated, it takes on a life of its own and must be obeyed?
But Spalding later declared Romney a “conservative
statesman” (a judgment shared by John J. Miller at National Review). On
his role during this constitutional crisis, Spalding said: “In the worst
possible circumstances, he confronted one of the toughest issues of our
politics with considerable moral seriousness and political skill. That's the
mark of a conservative statesman.”[121]
Romney’s op-ed in the Wall Street Journal, appearing
in the middle of the crisis (February 2004), employs some of Spalding’s ideas
and word choice. Romney also discusses the separation of powers as if he
himself had adhered to that constitutional principle. (Excerpt:)
++++++++
By Mitt Romney
Wall Street Journal, February 5, 2004
… There are lessons from my state’s experience that may help
other states preserve the rightful participation of their legislatures and
citizens, and avoid the confusion now facing Massachusetts….
It is important that the defense of marriage not become an
attack on gays, on singles or on nontraditional couples. We must recognize the
right of every citizen to live in the manner of his or her own choosing. In
fact, it makes sense to ensure that essential civil rights, protection from
violence and appropriate societal benefits are afforded to all citizens, be
they single or combined in nontraditional relationships.
So, what to do?
* Act now to protect marriage in your state. I urge my
fellow governors and all state legislators to review and, if necessary,
strengthen the laws concerning marriage. Look to carefully delineate in the
acts themselves the underlying, compelling state purposes. Explore, as well,
amendments to the state constitution….
* Beware of activist judges. The Legislature is our
lawmaking body, and it is the Legislature’s job to pass laws. As governor, it
is my job to carry out the laws. The Supreme Judicial Court decides cases where
there is a dispute as to the meaning of the laws or the constitution. This is
not simply a separation of the branches of government, it is also a balance of
powers: One branch is not to do the work of the other. It is not the job of
judges to make laws, the job of legislators to command the National Guard, or
my job to resolve litigation between citizens. If the powers were not separated
this way, an official could make the laws, enforce them, and stop court
challenges to them. No one branch or person should have that kind of power. It
is inconsistent with a constitutional democracy that guarantees to the people
the ultimate power to control their government.
With the Dred Scott case, decided four years before he took
office, President Lincoln faced a judicial decision that he believed was
terribly wrong and badly misinterpreted the U.S. Constitution. Here is what
Lincoln said: “If the policy of the government upon vital questions affecting
the whole people is to be irrevocably fixed by decisions of the Supreme Court,
the instant they are made in ordinary litigation between parties in personal
actions the people will have ceased to be their own rulers, having to that
extent practically resigned their government into the hands of that eminent
tribunal.” By its decision, the Supreme Judicial Court of Massachusetts
circumvented the Legislature and the executive, and assumed to itself the power
of legislating. That’s wrong. …
* Act at the federal level. In 1996, President Clinton
signed the Defense of Marriage Act.
While the law protects states from being forced to recognize
gay marriage, activist state courts could reach a different conclusion, just as
ours did. It would be disruptive and confusing to have a patchwork of
inconsistent marriage laws between states. Amending the Constitution may be the
best and most reliable way to prevent such confusion and preserve the
institution of marriage. Sometimes we forget that the ultimate power in our
democracy is not in the Supreme Court but rather in the voice of the people.
And the people have the exclusive right to protect their nation and
constitution from judicial overreaching.
People of differing views must remember that real lives and
real people are deeply affected by this issue: traditional couples, gay couples
and children. We should conduct our discourse with decency and respect for
those with different opinions. The definition of marriage is not a matter of
semantics; it will have lasting impact on society however it is ultimately
resolved. This issue was seized by a one-vote majority of the Massachusetts
Supreme Judicial Court. We must now act to preserve the voice of the people and
the representatives they elect.
[Reprinted by permission of Wall Street Journal,
Copyright © 2004 Dow Jones & Company, Inc. All Rights Reserved Worldwide.
License number 2620420482448.]
++++++++
If Romney believed strengthened marriage statutes were so
important, why did he never file and push his own bill? Attorney Mathew Staver
of Liberty Counsel proposed wording for a statute. Romney met with Professor
Mary Ann Glendon of Harvard Law School on the issue; she and Professor Hadley
Arkes wrote an op-ed on the subject in the Boston Herald in early
January 2004.[123] But the Governor never
filed any bill on marriage. House Speaker Tom Finneran spoke of such action,
but nothing came of it. It would not have been too late to take that action
even in 2005, according to both Staver and Arkes.[124]
Article 8 Alliance-MassResistance filed bills in early 2005 relating to
marriage, but Romney did not support them.[125]
Note that he warns citizens to “beware activist judges” and
praises our system of government with its separation of powers. Yet it seems a
governor plays no role in preserving this system, but that “the people have the
exclusive right to protect their nation and constitution from judicial
overreaching.”
The Governor had the nation’s attention in late 2003 or
early 2004, and could have used his bully pulpit push a strong bill. Instead,
he caved to the liberal notion that “man/woman” and “husband/wife” in the
existing statute had to be interpreted as gender-neutral terms – as argued by
GLAD.[126] All his energy was
going to the amendment process, his failed request for a stay, and his training
sessions for Town Clerks and JPs.
On “Marriage Destruction Day” – May 17, 2004 – Article 8
Alliance held a rally with about 150 supporters on Boston City Hall Plaza as
the same-sex “marriages” began at City Hall. Speakers included Rabbi Yehuda
Levin, a Catholic deacon, Dr. John R. Diggs, Jr. (author of “The Health Risks
of Gay Sex”), and Brian Camenker (Article 8 Alliance). Others who had the
courage to come and pray that day included Bill Cotter and activists from Operation
Rescue-Boston, Rev. Patrick Mahoney (Christian Defense Coalition), and Rev. Rob
Schenck (Faith and Action). Where were other religious leaders that day?
Pro-marriage signs read: “Protect the Dignity of Marriage” – “Jesus, Mary and
Joseph: We Pray You Keep the Family Holy!” – “No Same-Sex Marriage” – “Remove
the Judges” – “Marshall Not Impartial” – “Stop Judicial Tyranny.” The “Romney
Tell Judge NO” banner was also there, just to remind everyone who allowed
this travesty to happen.
The plaza was overrun by same-sex couples getting their
“marriage” licenses and aggressive young activists screaming at the prayer
groups and pro-family speakers, and blocking their signs and banners.
“Marriage Destruction Day” on Boston City Hall Plaza, May
17, 2004: Prayer groups’ banners blocked by homosexual activists. The blocked
yellow banner reads: “Protect the Dignity of Marriage.” The blue banner reads: “Jesus,
Mary and Joseph: We Pray You Keep the Family Holy!” The Article 8 Alliance
rally and press conference was happening just to the right. Despite a huge
press presence, none of the comments from the Article 8 speakers were reported.
(MassResistance photo)
The Governor – and his allies at Massachusetts Family
Institute – declined to say anything negative publicly that day. The Governor
issued a flaccid, two-sentence statement:
All along, I have said an issue as fundamental to society as
the definition of marriage should be decided by the people. Until then, I
intend to follow the law and expect others to do the same.[127]
That was all! The Boston Globe reported that Romney’s
spokeswoman said May 17 would be a “normal work day” for the governor. “He was
to spend it in the State House, then attend an education forum in Framingham
[in the] evening… ‘Now that the court’s decision is going into effect, the
governor expects everyone to respect the law and respect one another,’
[spokeswoman Shawn] Feddeman said.” Another Globe report stated, “His aides refused to make Romney available to answer
reporters’ questions, saying he was working on other business.” And the
Massachusetts Family Institute wanted to “avoid ugly conflicts and to show
respect for the rule of law” – and would not join Article 8 Alliance and allies
at the rally.[128]
About a year after that infamous day, in June 2005, Romney
would announce his support for the VoteOnMarriage amendment. The marriage issue
for him had become all about defending “democracy.”
Ironically, Romney also spoke at the Federalist Society’s
National Lawyers’ Convention in November 2005, which was focused on
constitutional originalism. Though he had not himself held to an originalist
application of the clear separation of powers in the Massachusetts Constitution
(hardly subject to interpretation), Romney had the gall to say at that event that
the Goodridge court was acting,
… totally unbounded by the Constitution, precedent, and the
law [and] … extra constitutional … we’ve got to start defending those values
that we think are critical to the preservation of our society, which are
embodied in our Constitution, and insisting that judges do that.[129]
Who better to insist that judges follow the Constitution
than the Chief Executive? He then repeated his praise for the values of
the Founding Fathers:
I’m convinced that one of the reasons that our culture and
our values have sustained over such a long period of time is that the
Constitution that we use as a guide includes those values that the founding
fathers saw as being so critical to the preservation of the Union.[130]
It
did not have to end this way
As Professor Hadley Arkes pointed out in his National
Review column (“The Missing Governor,” published on the day the fraudulent
marriages began, May 17, 2004), Governor Romney could have done much more along
the way to force the needed debate and halt the marriages. Regarding a federal
court challenge by a group of legislators (working with Liberty Counsel,
American Family Association, and the Thomas More Law Center) claiming that the
SJC had no constitutional authority to act on marriage,[131]
Arkes explains:
But the form of the challenge pointed once again to the
missing governor. If legislators had a stake, as legislators, in this kind of
case, they could press their interest most aptly by acting through the
legislature itself to defend and reclaim the rightful authority of the
legislature. The very action of presenting their plea before the court
implicitly confirmed the dominant authority of the court in settling this
question. On the other hand, if the constitutional authority was really with
the governor, to act for himself and the legislature, then it made the most
profound difference that the governor flex that authority now himself: He could
invoke his powers under the constitution; cite the error of the court in
seizing jurisdiction wrongfully for itself; and order all licenses of marriage
to be sent on to Boston, to his office, until the legislature, in the fullness
of time, settled its policy on marriage. By an act of that kind he would
have forced a change in the focus of the litigation: The task would fall then
to the court to entertain challenges to the actions of the governor. If the
judges summoned the governor to appear before them, there would no longer be
any quibble over the question of whether the governor has standing before the
court, or whether he would appear. And the court could be compelled now to
face precisely the issue that the judges had skirted: whether the majority of
four had themselves violated the constitution of Massachusetts.[132] [Emphasis
added.]
Governor Romney could have corrected his mistakes before he
left office (in early January 2007). He had two and a half years to think about
it. But he was AWOL, or as Arkes put it, he was “the missing governor”: “Receding
has now become his signature tune.”
Romney either lacked the courage to put things aright, or
did not want to because of his commitment to gay rights. Either way, he is not
a constitutionalist conservative. Arkes asked: “Have Republican leaders lost
their confidence on moral matters?” Or on
defending the Constitution?
To review this short history is to put to the side the
dramatic abuse of power by the Supreme Court of Massachusetts, and put in the
foreground the fecklessness of the political class in Massachusetts, which
showed, at every turn, either a want of conviction or a want of nerve. That the
legislature would prove bumbling, and too crippled by its own divisions to work
out a coherent response, is to say that a plural body reflected the deep
divisions of opinion in a liberal state. The deeper failure must go to the
man who stood as governor, holding the levers of the executive. And if it
is countdown for marriage in Massachusetts, it is countdown also for Mitt
Romney, whose political demise may be measured along the scale of moves he
could have taken and the record of his receding, step by step, until he finally
talked himself into doing nothing, or nothing much….
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.[133] [Emphasis added.]
Note that Arkes thought Romney’s ability to act against
same-sex marriage did not end on May 17, 2004. Yet the Governor’s paralysis
continued. The Executive Office had no “grownup” to take charge:
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....
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.[134]
[Emphasis added]
Citizens still held out hope that the same-sex
“marriages” could be stopped. Here, Rabbi Yehuda Levin addresses a rally at
Faneuil Hall, Boston on May 14, 2004 – just a few days before Governor Romney’s
May 17 implementation date. As Professor Hadley Arkes noted, Romney’s ability
to act against same-sex marriage did not end on that date. Romney failed to
attend the rally or send a representative from his office. (MassResistance
photo)
But who had the courage to push the Governor to reconsider?
Not the Massachusetts Family Institute,[135] nor the Family Resource
Council, nor Focus on the Family, nor even the American Family Association.
Neither the American Center for Law & Justice (ACLJ), nor the Alliance
Defense Fund. They were as paralyzed as Romney. And Hugh Hewitt, who was once
so eloquent arguing for defiance of the ruling,[136]
was busy writing his promotional biography, A Mormon in the White House? 10
Things Every American Should Know about Mitt Romney.
In December 2006, MassResistance made once last attempt to
get Governor Romney to take action. We assembled a group of 44 state and
national pro-family leaders who signed a letter urging him to acknowledge his
constitutional error before his term ended, and issue an Executive Order
overturning his implementation of same-sex marriage.[137]
Romney never replied to that December letter. The Governor
was, again, AWOL. And so were those powerful “conservative” advocacy groups.
Homosexual activists’ banner at Governor Romney’s
“Rally for Democracy” on November 19, 2006: “Hey Mitt: Your Motives Are
Showing. – No Mitt in 08.” (MassResistance photo)
Romney tries to cover his tracks
Since leaving the Governor’s office, Romney has posed as a
supreme defender of marriage.[138] He said he did
everything possible to stop same-sex marriage in Massachusetts. But many close
observers know otherwise. Note how he treats anyone who challenges his
carefully crafted profile:
Brian Camenker was the victim of unwarranted ad hominem
attacks in early 2007 by Romney surrogates who called him homophobic, obsessed,
not adult, etc. (See Chapter III in Mitt Romney’s Deception.)
When WRKO-Boston talk show host Gregg Jackson (and then TownHall.com
columnist) called in on “The Howie Carr Show” one afternoon in December 2007 –
as Romney’s Presidential primary run was in full bloom – he came under an
irrational attack by Romney himself for daring to raise the issue of the
Governor’s implementation of same-sex marriage. Jackson asked Romney a tough
question: Why did you change the marriage certificates when you were not
authorized to do so? Romney immediately insulted Jackson, calling him
“delusional” and “right wing,” and refused to give a straight answer,
pretending the question was about birth certificates. (See detail in Mitt
Romney’s Deception, Chapter III, “Birth certificates.”)
In March 2007, Romney again lost his temper when asked a
question by Sandy Rios, former president of Concerned Women for America (during
the 2003-2004 Massachusetts marriage debacle), and then talk show host at WYLL
in Chicago. Rios asked Romney about his actions after the same-sex marriage
ruling, specifically why he had the marriage certificates changed to read
“Party A and Party B” instead of “bride and groom” – even though there was no
mandate from the Legislature or even the Court for him to take that action.
Romney became very angry and tried to deny his responsibility.[139]
Just as bad, Mitt Romney continues to insinuate that those
who object to same-sex marriage on any grounds other than (1) principles of
democracy – “Let the people vote!” – or (2) “Every child deserves a
mother and a father” are bigots, hateful, prejudiced, and discriminatory.[140]
His Chief Legal Counsel Winslow said in 2007:
… always, in the press, he would express concerns that when
you ratcheted up the rhetoric, people might react negatively. And so – and he
emphasized this point internally – whatever he said publicly had to be deeply
respectful of individuals and not phrased in any way that seemed hate-driven.[141]
Also:
A prospective senior member of Romney’s presidential
campaign staff [in 2007] asked the candidate whether he planned to make
opposition to gay marriage a centerpiece of his bid. He recalls Romney’s
emphatic answer: “Our campaign will never, never be about hating gays.” Romney
told the would-be aide that he believed that Massachusetts’ top court had
violated the democratic process and that this was what he found most
objectionable about Goodridge. Romney says he doesn’t discriminate against
gays in hiring and that, as governor, he appointed at least one gay judge.[142] [Emphasis
added.]
Romney wants to avoid being called a “bigot” and hopes to
focus all attention on the Court’s violation of the “democratic process” (not
the Constitution). He does not want any examination of his role in
implementing same-sex marriage, which reveals his failure to uphold the
Constitution, as was his sworn duty.
Principled conservatives take note. Romney personifies the
RINO, “big tent” philosophy for the Republican Party, not only in his ongoing
advocacy of gay rights, but in his neglect of the Constitution.
Same-sex “marriage” circus at Boston City Hall, May 17,
2004. (MassResistance photo)
Background sources
The Robert Paine Blog (June 2006-January 2007); http://robertpaine.blogspot.com/.
“Robert Paine” is the pen name of a well-respected Massachusetts attorney who
has thoroughly researched this issue.
Introduction - The Demolition of Democracy
Part I - Legal Authority
Part II - What the SJC Did and What They
Did Not Do
Part III - Changing Common Law Did Not
Change Chapter 207
Part IV - Changing Common Law Did Not
Change the Constitution
Part V - Changing the Common-Law Is Legally
Insignificant
Part VI - C.207 Continues to Prohibit
Same-Sex “Marriage”
Part VII - Mass. Same-Sex “Marriages” Are
Legally Void
Part VIII - We the People … Still Have
Authority
Robert Treat Paine, Esq.
Chairman of the committee charged with
acquiring gunpowder for the Continental Army. He also authored the final appeal
to the king, known as the Olive Branch Petition, in 1775. Paine was re-elected
to represent Massachusetts at the Continental Congress of 1776. He participated
in the debates leading to the resolution for Independence and his signature
appears on the Declaration. (Illustration: USHistory.org)
Frequently Asked Questions, Atty. “Robert Paine”
(2007); http://massresistance.org/docs/marriage/romney/faq.html.
Questions and answers regarding the legal basis of the constitutional arguments
in the “Robert Paine” blog.
Open Letter to Pro-Family Leaders, Atty. “Robert Paine”
(September 8, 2006); http://massresistance.org/docs/marriage/romney/letter.html.
This letter describing Romney’s inexcusable blunders on same-sex marriage was
sent around the country to warn pro-family leaders. Addressed to Tony Perkins,
director of Family Research Council, it was delivered to him in person the
month before Governor Romney’s appearance at FRC’s “Liberty Sunday” event in
Boston on October 15, 2006 (where the Governor blamed Massachusetts’ same-sex
marriage mess on the Court). Perkins never responded. When he handed the letter
to Perkins, “Paine” told him …
… directly that Romney has a continuing daily constitutional
duty to uphold the laws of Massachusetts. He is violating the Constitution
every day. He’s violating it while on FRC’s stage claiming to be someone other
than he is. He’s violating it while Tony Perkins knows he is violating it and
could do something right now. What is Perkins thinking? Why is he doing
nothing? [Email by Paine in author’s possession.]
Paine also states that all the objections he brought up in
his letter to Perkins were dismissed by supposedly “conservative” attorneys
working with Romney in 2004.
Response to Alliance Defense Fund attorney’s attacks re:
findings on Romney and “gay marriage” in Massachusetts (October 2006); http://massresistance.org/docs/marriage/romney/lavy_email.html.
Romney apologist Atty. Glen Lavy’s critique, and response by John Haskins and
Atty. “Robert Paine.” Lavy and the ADF worked closely with Romney throughout
the Goodridge episode, and were involved with some of the litigation
surrounding it. Lavy had also written extensively on the subject, and had done
related pro-marriage litigation in other states. ADF worked on the language of
the VoteOnMarriage constitutional amendment. So it is reasonable to conclude
that ADF had an interest in defending how things were handled by Romney, since
they advised him during that time and did some portion of the legal work.
An Overview of the Massachusetts Federal Court Rulings
and the Next Legal and Political Steps, Mathew Staver, President and
General Counsel, Liberty Counsel (2004); http://www.lc.org/profamily/mass.htm or http://www.MassResistance.org/docs/downloads/romney/StaverMassJuly04.pdf.
Reviews the federal court ruling of May 13, 2004 that let SJC Goodridge
ruling stand (claiming it did not violate Massachusetts citizens’ right
to a republican form of government). Explains that the Governor did have
authority to issue an Executive Order to halt same-sex marriages, plus other
background on the Massachusetts Constitution.
“The same-sex marriage debate” blog, Professor Dwight
Duncan, Esq., Boston Globe (shortly before and shortly
after May 17, 2004); http://www.boston.com/news/special/gay_marriage/blogs/chrisfunnell2.html.
While Duncan’s legal analysis makes it clear that the ruling was beyond the
Court’s authority (and therefore null and void), he stops short of challenging
Romney to defy the illegitimate ruling. Duncan worked with the Massachusetts
Catholic Conference on their legal analyses and recommendations during the
constitutional crisis.
Analysis by law student Jonathan Goulding (then a
second-year, Ave Maria School of Law, Ann Arbor, MI) on “The same-sex marriage
debate” blog, Boston Globe (May 14, 2005); http://www.boston.com/news/special/gay_marriage/blogs/chrisfunnell1.html.
An excellent analysis of the constitutional issues involved, and Romney’s
failure to protect and defend the Constitution. Where were the high-powered
“conservative” attorneys who should have published this sort of analysis?
Letter to Mitt Romney from 44 pro-family leaders –
imploring him to correct his errors before leaving office (December 20,
2006); http://www.massresistance.org/docs/marriage/romney/dec_letter/letter.pdf.
(See also “Romney created ‘gay’ marriage, family groups say,” WorldNetDaily,
January 16, 2007; http://www.wnd.com/news/article.asp?ARTICLE_ID=53787.)
Primary authors were John Haskins and Atty. “Robert Paine.” It was signed by
prominent pro-family leaders around the country. I hand delivered it to the
Governor’s State House office, but neither Romney nor his staff ever responded,
though when I phoned the Chief Legal Counsel, he confirmed with me that he had
received it (but had no further comment).
An Open Letter Regarding Governor Mitt Romney
(January 11, 2007); http://www.evangelicalsformitt.org/massleaders/massleaders.pdf.
Signed by Kris Mineau (Massachusetts Family Institute), Professor Mary Ann
Glendon (Harvard Law School), Thomas A. Shields (Coalition for Family and
Marriage of Massachusetts), Joseph Reilly (Massachusetts Citizens for Life),
and several others. This was a response to “The Mitt Romney Deception” and
other critiques published by MassResistance. See also Kathryn Jean Lopez, “An
Early Massachusetts Primary; The Campaign for Mr. Right,” National Review,
January 10, 2007; http://www.nationalreview.com/articles/219687/early-massachusetts-primary/kathryn-jean-lopez.
This was an attempt by Romney’s allies to prop up his campaign for the
Republican Presidential nomination. National Review would later endorse
Romney for the nomination in December 2007.
22 Conservatives Challenge National Review to Come
Clean on Romney (July 10, 2007); http://www.massresistance.com/romney/press_release_071007.html.
Letter from pro-family leaders to National Review editors,
challenging their endorsement of Mitt Romney’s candidacy for the Republican
Presidential nomination. (John Haskins was the primary author.) This letter was
hardly a “public-relations stunt” (as National Review Online editor
Kathryn Lopez charged). See also “Romney’s ‘constitutional bungling’
criticized,” WorldNetDaily, July 12, 2007; http://www.wnd.com/news/article.asp?ARTICLE_ID=56625
“The Romney Record: A record of protecting traditional
marriage,” (2007 and later); http://mittromneycentral.com/uploads/pdf/social_marriage.pdf.
This page also appeared earlier on his 2007-8 campaign web site, www.MittRomney.com. It is silent on the period between the
ruling (November 18, 2003) and his announcement of support for the
VoteOnMarriage amendment (June 16, 2005) – except for his statement the day of
the ruling:
Marriage is an institution between a man and a woman. I will
support and amendment to the Massachusetts Constitution to make that expressly
clear.
It is significant that Romney left off the last sentence of
his brief statement, which read:
Of course, we must provide basic civil rights and
appropriate benefits to nontraditional couples, but marriage is a special
institution that should be reserved for a man and a woman.
“What same-sex ‘marriage’ has done to Massachusetts; It’s
far worse than most people realize,” by Brian Camenker, MassResistance
(October 20, 2008); http://www.massresistance.org/docs/marriage/effects_of_ssm.html
Primary
documents
The Massachusetts Constitution, http://www.malegislature.gov/Laws/Constitution
Part I, Article X. … the people of this commonwealth
are not controllable by any other laws than those to which their constitutional
representative body have given their consent.
Part I, 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….
Part I, Article XXX. In the government of this
commonwealth, the legislative department shall never exercise the executive and
judicial powers, or either of them: the executive shall never exercise the
legislative and judicial powers, or either of them: 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, Ch. III, Article 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.
Massachusetts Supreme Judicial Court Goodridge
opinion on same-sex “marriage.”
The
entire SJC ruling, including concurring and dissenting opinions and footnotes:
Hillary GOODRIDGE & others vs. DEPARTMENT OF PUBLIC HEALTH & another.
SJC-08860, November 18, 2003. Available at http://massresistance.org/docs/marriage/sjcruling.html
and http://www.boston.com/news/daily/18/sjc_gaymarriage_decision.pdf
Amicus Brief submitted by Attys. Chester Darling and
Michael Williams, Citizens for the Preservation of Constitutional Rights in
Goodridge case (December 2002, a year before the Supreme Judicial
Court’s ruling),
http://www.domawatch.org/cases/massachusetts/goodridgevdepartmentofhealth/20021220_d_mcm_amicus.pdf.
See also summary at: “Constitution Says that Legislature Is In Charge of
Marriage,” Massachusetts News, April 2003, p. 13; http://www.massnews.com/2003_Editions/2003_Print_Editions/04_Apr/04_April_2003.pdf
Court Proceedings related to Goodridge, 2001-2004,
posted by Alliance Defense Fund, http://www.domawatch.org/stateissues/massachusetts/goodridge.html.
Includes:
Attempt to halt implementation of same-sex marriage by Massachusetts State
Representatives (complaint filed May 11, 2004) and
Denial of Motion for injunctive relief, etc. in U.S. District Court (May
13, 2004); http://www.lc.org/misc/Largess_v_Mass_Complaint.pdf.
State Representatives were represented by Liberty Counsel, AFA Center for Law
& Policy, Thomas More Law Center, and Atty. Chester Darling. The federal
judge rejected their argument that the “SJC violated the United States
Constitution [guaranteeing citizens a republican form of government] by
usurping the power of the Massachusetts Legislature, both when it exercised
jurisdiction over the Goodridge case and when it redefined the concept of
marriage in the Goodridge opinion.”
Massachusetts marriage statute: M.G.L. Ch. 207, http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter207.
This is the marriage law still in effect in Massachusetts (2011). It still has
not been changed to permit same-sex marriage.
Governor Mitt Romney’s public statements on Goodridge
ruling, role of Court, same-sex marriage, the amendment process, etc.
·
Statement on the Goodridge ruling, November 18, 2003; http://www.massresistance.org/docs/downloads/romney/Romney_statement_on_SJC_ruling_11-18-03.pdf
·
“One Man, One Woman: A Citizen’s Guide to Protecting Marriage,” Wall
Street Journal Op-ed, February 5, 2004; http://www.massresistance.org/docs/downloads/romney/Romney_WSJ_oped_2-5-04.pdf
(See Ch. V, Note 122.)
·
Statement of Governor Romney on the Federal Marriage Amendment,
February 24, 2004; http://myclob.pbworks.com/w/page/21955943/02-24-2004
·
Statement of Governor Romney on Constitutional Convention, March
12, 2004; http://myclob.pbworks.com/w/page/21955981/03-12-2004
·
Statement on Constitutional Convention and Travaglini-Lees
compromise amendment, March 29, 2004; http://www.massresistance.org/docs/downloads/romney/Romney_statemt_on_ConCon_3-29-04.pdf
and http://myclob.pbworks.com/w/page/21956008/03-29-2004
·
Letter to constituent on eve of “gay marriage,” April 15, 2004;
see Chapter VII and http://www.massresistance.org/docs/marriage/romney/letter_041504/RomneyLetter_041504.pdf
·
Statement on day same-sex “marriages” began, May 17, 2004; http://www.massresistance.org/docs/downloads/romney/Romney_statement_5-17-04_ssm_begins.pdf
·
Testimony before U.S. Senate Judiciary Committee in support of
federal marriage amendment, "Preserving Traditional Marriage: A View from
the States," June 22, 2004; http://myclob.pbworks.com/w/page/21956168/06-22-2004
·
Press conference on VoteOnMarriage, June 16, 2005; http://massresistance.org/docs/marriage/romney/press_conf_061605.html
·
Speech to Federalist Society, November 10, 2005; http://www2.nationalreview.com/corner/romneyaddress.pdf
·
Letter to U.S. Senate supporting federal marriage amendment, June
2, 2006; http://www.massresistance.org/docs/downloads/romney/Romney_to_US_Senate_6-2-06.pdf
·
Statement on pending Legislative vote on VoteOnMarriage
amendment, June 28, 2006; http://www.massresistance.org/docs/downloads/romney/Romney_statement_6-28-06_on_MarrAmendmt_vote.pdf
·
Speech at “Liberty Sunday” (Family Research Council event,
Boston), October 15, 2006; http://evangelicalsformitt.org/2006/10/the-governors-remarks-at-liberty-sunday
or http://www.americanrhetoric.com/speeches/mittromneyliberty.htm
·
Speech at “Rally for Democracy” at State House, November 19,
2006; http://www.massresistance.org/docs/downloads/romney/Romney_speech%20_StHsRally_11-19-06%20herald.pdf
and http://www.voteonmarriage.org/rallyfordemocracy.shtml
In the Goodridge ruling (above) is this outline of
the chain of command on issuance of marriage licenses. [The Governor
appoints the Commissioner of Public Health.]
The Department of Public Health (department) is charged by
statute with safeguarding public health. See G.L. c. 17. Among its
responsibilities, the department oversees the registry of vital records and
statistics (registry), which “enforce[s] all laws” relative to the issuance
of marriage licenses and the keeping of marriage records, see G.L. c. 17, § 4,
and which promulgates policies and procedures for the issuance of marriage
licenses by city and town clerks and registers. See, e.g., G.L. c. 207, §§ 20,
28A, and 37. The registry is headed by a registrar of vital records and
statistics (registrar), appointed by the Commissioner of Public Health
(commissioner) with the approval of the public health council and supervised by
the commissioner. See G.L. c. 17, § 4.
Letter from Justice Joseph R. Nolan (Ret.) to Legislature
on behalf of Governor Romney – request for permission to appear before the
SJC to ask for stay of Goodridge ruling (April 15, 2004); http://www.massresistance.org/docs/downloads/romney/NolanRomneySJC.pdf.
Letter from Registrar of Vital Records and Statistics to
Town Clerks (April 15, 2004); http://www.MassResistance.org/docs/downloads/romney/Nyberg_to_Town_Clerks_4-14-04.pdf.
Massachusetts Department of Revenue (April 17, 2004).
Still available at http://web.archive.org/web/20041208170159/http://www.massdor.com/rul_reg/tir/tir_04_17.htm.
Beginning May 16, 2004 Massachusetts law permits same-sex
couples to be married. Goodridge v. Department of Public Health, 440 Mass. 309
(2003). Same-sex spouses will file as married persons, jointly or separately,
for Massachusetts state income tax purposes. ... The definition of marriage and
spouse under Massachusetts law. Massachusetts construes the term civil marriage
“to mean the voluntary union of two persons as spouses….” See Goodridge v.
Department of Public Health, 440 Mass. 309, 343 (2003). Thus the term
“marriage” includes same-sex marriage, and the term “spouse” includes partners
in a same-sex marriage. The Supreme Judicial Court stayed the entry of judgment
in Goodridge for 180 days; thus same-sex marriage is recognized in
Massachusetts on May 16, 2004. Id., at 344.
Governor Romney’s “training session” for Town Clerks
(May 2004).There is no Executive Order, or record of this proceeding or these
directions on any official government web page. MassResistance saved the copy
from the GLAD (Gay & Lesbian Advocates & Defenders) web site, available
at: http://www.massresistance.org/docs/marriage/romney/town_clerk_instructions_apr2004.pdf.
GLAD’s PDF is still available at http://web.archive.org/web/20040507043000/http://www.glad.org/marriage/town_clerk_instructions.pdf
Article 8 Alliance (early 2004):
Action Sheet, http://www.MassResistance.org/docs/downloads/romney/Article8_action_sheet_2004.pdf;
and
Petition to remove the four SJC judges, “Stop the Judicial Tyranny!” http://www.article8.org/docs/downloads/StatewidePetition.pdf
Massachusetts Justices of the Peace Summary of Duties. Regulations
as rewritten under Governor Mitt Romney after he implemented same-sex marriage
(May 17, 2004), from Office of the Governor’s Legal Counsel, as downloaded by
this author in November 2006; same wording still in use. http://www.mass.gov/governor/administration/legal/justiceofpeace/summary-of-duties.html.
[Excerpts:]
A. FORM OF CEREMONY
As a general rule, there is no prescribed form of ceremony
to solemnize a marriage. Although particular words are not essential to a
ceremonial marriage, the words employed must be sufficient to demonstrate a
present marriage contract. At a minimum, the parties must assent to a mutual
agreement to take each other as marital spouses and the Justice of the Peace
must assert to act in his or her official capacity in pronouncing the parties
to be married. Milford v. Worcester, 7 Mass. 48, 54 (1810); Goodridge v.
Massachusetts Department of Public Health, 440 Mass. 309 (2003). You could ask
the individuals who are getting married whether they would like you to
pronounce them as: married, husband and wife, husband and husband, wife and wife,
marital partners, spouses, or some other way of acknowledging that they [sic]
two people have been married. …
E. REFUSAL TO PERFORM MARRIAGE CEREMONY
Justices of the Peace are public officials that have sworn
an oath that to “bear true faith and allegiance to the Commonwealth of
Massachusetts, and [to] support the constitution thereof.” In Goodridge v.
Department of Public Health, 440 Mass. 309 (2003), the Supreme Judicial Court
of Massachusetts decided that denying marriage to couples based on their sexual
orientation violates the Massachusetts Constitution. As such, Justices of the
Peace may not refuse to marry same sex couples based on their sexual
orientation, and may face personal liability if they do refuse to marry a
couple based solely on sexual orientation. In addition, refusing the [sic]
marry a same sex couple solely based on their race, sexual orientation, or
other protected status may constitute cause for removal of a Justice of the
Peace’s commission.
Please note, however, that a Justice of the Peace who
knowingly marries a couple that is prohibited from marrying in Massachusetts
could be punished by a fine and/or imprisonment. G.L. c. 207, § 50.
Boston Globe’s coverage of May 17, 2004: Same-sex
“Wedding Day” with photos (May 18, 2004); http://www.boston.com/news/specials/gay_marriage.
Photo timeline: http://www.boston.com/news/specials/gay_marriage/gallery/timeline
Proof that homosexual marriage is still not legal in
Massachusetts: H1708 was filed January 7, 2009 but sent to “study” in May
2010 (meaning not passed). Titled, “Relative to equal access in civil marriage”
(Rep. Byron Rushing, lead sponsor), http://www.malegislature.gov/Bills/186/House/H1708.
First introduced by the homosexual lobby in 2005 (originally as H977 and S967),
the bill would have changed the marriage statute to allow same-sex marriage,
but was killed in the Judiciary Committee each session. (Possibly, that action
was part of the plan by same-sex marriage advocates to keep it quiet that the
Massachusetts marriage law still has not been changed.) For the 2011-2012
session, they have not even bothered to re-file this bill. The bills proposed
adding this sentence to Chapter 207 (the marriage statute):
Any person who otherwise meets the eligibility requirements
of this chapter may marry any other eligible person regardless of gender.
Massachusetts Trial Court Law Libraries online, “Gay
Marriage” citations, “Massachusetts Law About Same-Sex Marriage” (as
accessed in 2011); http://lawlib.state.ma.us/subject/about/gaymarriage.html.
For “Massachusetts Laws,” this official site links to the Goodridge
ruling, the Massachusetts Constitution, and the marriage statute (Ch. 207),
which still (in 2011) refers to “man/woman” & “husband/wife.” The site
claims:
MGL c.207. Marriage.
The same laws and procedures that govern traditional marriage also apply to
same-sex marriages. There are no special procedures for a same-sex marriage.
The web site says that; but there is no statute
that does. The “Massachusetts Law” section also links to Gay &
Lesbian Advocates & Defenders (GLAD), http://www.glad.org/uploads/docs/publications/how-to-get-married-ma.pdf,
and to the Boston Globe, as if they were reliable legal citations.
Massachusetts Law criminalizing sodomy, Chapter 272,
Section 34; http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section34.
Sodomy is still a crime under Massachusetts law: “the abominable and
detestable crime against nature, either with mankind or with a beast.” No
legalization of same-sex marriage (involving sodomy by definition) can be
complete unless this section is overturned. Accordingly, the GLBT lobby filed
bills in the 2005-6 session (H819, S938, H818, H976; one of which actually
included decriminalization of bestiality as well as human-on-human
sodomy). The legislature may think the U.S. Supreme Court’s Lawrence v.
Texas (2003) took care of the issue, but still they continue to file the
bill to overturn the Massachusetts statute. If it is such a slam-dunk, why has
it not been passed out of the Judiciary Committee for a floor vote? The most
recent shelved bills (2009-2010 session) were H3536 and H1711. (No longer
online. Previous session bill numbers: H2488/S1656 and H4643.) The homosexual
lobby has again filed the bill in the 2011-2012 session (H490, “An Act relative
to the repeal of certain archaic laws”), where it is pending in the Judiciary
Committee (as of Dec. 2011).
Bills filed by Article 8 Alliance-MassResistance in
2005-6 session; http://www.article8.org/docs/general/new_bills_2005.htm.
The author drafted these bills, unable to find a conservative attorney in
Massachusetts willing to help:
·
H653 – Filed by MassResistance as a bill to define marriage in
statute while banning civil unions, it was turned into proposed amendment
by the GLBT lobby and later voted down 198-0 as unconstitutional. (The
“conservative” Governor and legislators did not support it by the time it came
to a vote since by then they were allied in supporting the “VoteOnMarriage”
amendment.) It essentially used the wording employed by the 2001-2002 Pawlick
“Massachusetts Citizens for Marriage” amendment. (See Chapter VI.)
·
H654 – Legal nullification of same-sex “marriages”
performed since May 17, 2004 as without statutory basis.
·
H652 – Bill of Address to remove the 4 SJC judges who
unconstitutionally ruled for “homosexual marriage.” (Also a late-filed bill in
2004. Killed by the Rules Committee in 2004; shelved in 2006. See Chapter VI.)
Human Rights Campaign on the Goodridge ruling
(2003). A good example of how they make it up as they go along. As saved in
2004:
Can the Legislature undo this decision by passing a law? No.
The Legislature does not have the power to pass a law that would violate the
Massachusetts Constitution, or undo a decision of the state high court
interpreting the state constitution.
Does the Legislature have to act in order for this decision
to take effect? No. The Supreme Judicial Court stayed the judgment for 180 days
so that the Legislature can take any steps that it deems necessary to
effectuate the decision. For instance, the Legislature could facilitate
implementing this decision by changing applications for marriage licenses to
reflect the ruling, educate town clerks on how to respond to requests by
same-sex couples for marriage licenses or take any other steps to insure that
the constitutional requirement of civil marriage equality is achieved.
Does this mean that the Court threw out Massachusetts’ [sic]
marriage law altogether? No. The Court noted that the plaintiffs only
challenged the exclusion against same-sex couples marrying; they did not
challenge any of the other aspects of Massachusetts marriage law. It simply
concluded that the concept of “civil marriage” be construed differently from
now on. The court held that:
Civil marriage is now construed “to mean the
voluntary union of two persons as spouses, to the exclusion of all others.”
“[N]o 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.”
(Dead link: http://www.hrc.org/Template.cfm?Section=Marriage&Template=/ContentManagement/ContentDisplay.cfm&ContentID=13776.)
Chapter VI
The Conservative
Establishment’s Failed Massachusetts Marriage Amendments &
the Grassroots Effort to Remove the “Gay Marriage” Judges
February 19, 2004: “This was an illegitimate act
by any objective measure,” [Brian] Camenker [Article 8 Alliance-MassResistance]
said of the court’s November [2003 Goodridge] decision. “These judges must be
thrown out.” Camenker said he supports removal of the justices instead of a
constitutional amendment declaring marriage as the union of a man and a woman.
“If you study the Massachusetts Constitution, the intended remedy for a lunatic
judiciary is not amending the constitution every time it happens,” he said.
“The intended remedy is to remove judges who exhibit this kind of behavior.”
(Boston Globe[143])
April 20, 2004: Twenty-eight days before the
Supreme Judicial Court decision legalizing same-sex marriage goes into effect,
diehard opponents will turn today to a radical, long-shot strategy: a bill
[Bill of Address] to remove the four justices who penned the historic ruling.…
While he acknowledged that the bill’s fate is uncertain at best, [sponsor State
Representative Emile] Goguen said he hoped the measure would pressure the court
to reconsider its ruling or simply nullify it. … Governor Mitt Romney, who
filed a bill last week seeking special authority to ask the SJC to stay its
ruling, has refused to meet with Camenker’s group. At a recent press
conference, Romney said he does not support the measure. Romney also told
reporters that if his own bill failed to win passage in the Legislature, then
gay marriages would become legal on May 17…. Camenker, however, is not
deterred. “I believe this will work,” he said. “There has to be a check and
balance to an illegitimate ruling, and this is it.” (Boston Globe[144])
July 2, 2006: … as Massachusetts lawmakers prepare
to consider an amendment to the state constitution banning gay marriage later
this month, Camenker remains unapologetic, saying he represents the state’s
true silent majority. He even opposes the amendment, saying there’s nothing
wrong with the constitution, what’s wrong is it’s [sic] interpretation by the
state’s highest court. “We are sort of purists on this. We don’t believe that
the constitution needs to be amended because the constitution is not flawed,”
he said. “John Adams didn’t make a mistake and forget to put gay marriage in
the constitution.” (Associated Press[145])
Romney’s failing long-shot
strategy: Amend the Constitution
An effort to rein in the out-of-control Massachusetts
Supreme Judicial Court never got Governor Mitt Romney’s support. He claimed to
have a better plan: Support a constitutional amendment on marriage, while
appealing to that same court for a stay of their ruling on same-sex
marriage while the amendment process ran its course.
How likely was the Governor even to get a hearing before the
Court? Rules allowed him access through the Attorney General (who said “no” to
his request), or through special appeal to the Legislature via a late-filed
bill (and they also said “no”). He could also have gone before the court on his
own (but chose not to do so).[146]
In the end, Romney’s long-shot strategy to stop same-sex
marriage was an utter failure. Neither his request for a stay of the ruling nor
passage of any constitutional amendment was successful.[147]
Governor Romney had allowed a radical idea of four judges to
become a reality, when he illegally implemented same-sex marriage beginning May
17, 2004. For the two and a half years that followed, he continued to tell
those wanting to preserve marriage that all their hopes lay in passing a
constitutional amendment. But what he did not tell these pro-family citizens
(many of whom were political innocents) was that changing the state
Constitution is very difficult and highly unlikely to succeed in Massachusetts.
As Steve LeBlanc (AP) explained, “the trail to the ballot
box is littered with remains of proposed amendments.”[148]
Term limits were buried in 1992 when legislative leaders adjourned without
voting. Other proposed amendments on the agenda – from abortion, to school
vouchers, to health care, to the 2002 marriage amendment – have been killed by
a Legislature unwilling to go on record (but willing to employ illegitimate
maneuvers).
Nevertheless, from the time of the Goodridge ruling
(November 2003), Romney proclaimed that a constitutional amendment was the only
way to preserve traditional marriage. Meanwhile, one effect of same-sex
marriages occurring over the next few years was to help sink the proposed
amendments. “The sky had not fallen,” same-sex marriage advocates would claim.
Legislators were getting used to the idea.
Some pro-family citizens in Massachusetts suspected the
hyper-focus on the amendment process was a smokescreen for some other agenda.
At a minimum, the “polite” wing of the pro-family movement was “being had” by
the ruthless homosexual activists and their allies who were much better
(&/or devious) political strategists.
The amendment process involved two passing votes in
consecutive legislative sessions, followed by a popular vote, all accompanied
by acrimonious debate. That long timeline gave the homosexual activists a
strategic edge. They used it in 2003-2005 to back Romney and the “polite” pro-family
groups into a corner. Their political analysts made this clear to the
homosexual newspaper Bay Windows (in early 2004), commenting on the
first “compromise” amendment:
… the legislative strategy that we followed – to try to push
forward a double-barreled amendment [banning same-sex marriage but creating
legally equivalent civil unions in the Constitution] – was a strategy that made
the right wing play on our terms,” says [Holly] Gunner.
Indeed, under a strategy devised by MassEquality’s lead
strategists [Arline] Isaacson and Norma Shapiro of the ACLU of Massachusetts, a
coalition of legislators that wanted to let the Goodridge decision stand voted
for the compromise amendment during key votes in order to kill off other
amendments, including Travis’ original [MA&PA] bill, that did not guarantee
civil unions. By pushing forward the Travaglini compromise, in which a vote for
traditional marriage also became a vote for civil unions, gay marriage
supporters backed their most hardcore opponents – a bloc of Republican
legislators working closely with Gov. Romney – into a corner….
“We made them vote for something they hate,” said Gunner. “We
made them play on our terms and that shows strength also.”[149] [Emphasis
added.]
The homosexual lobby’s strategy killed the first round of
marriage amendments in 2004-2005. But they knew that the weak pro-family groups
would be back with another amendment proposal, and readied their next bag of
tricks. Their ploy to avoid a vote on the second proposal (the “VoteOnMarriage”
amendment) in late 2006 then gave Governor Romney a chance to hold his
photogenic “Rally for Democracy” on the State House steps (just as he kicked
off his campaign for the Republican Presidential nomination).[150]
But the same-sex marriage advocates still won the amendment game in the end.
Was Governor Romney unaware of the history of unsuccessful
constitutional amendment proposals? Did he really believe an effective marriage
amendment would pass? What really motivated him to put all his eggs in the
amendment basket? Was his promise to promote the “rights” of same-sex couples
as important to him as preserving traditional marriage … or more important? Was
he trying to balance impossibly conflicting goals?
History of marriage amendments in
Massachusetts
Before Romney became Governor
In 2002, the year before he became Governor, Mitt Romney had
expressed adamant opposition to a citizens’ referendum to define marriage as
one man and one woman and forbid civil unions. It was “too extreme,” he
said.[151] The proposed amendment (Protection
of Marriage Amendment), spearheaded by Ed and Sally Pawlick (Massachusetts
Citizens for Marriage),[152] had gathered the needed
signatures – including those of Romney’s wife, son, and daughter-in-law[153]
– and was awaiting its first of two votes in the Legislature in 2002 before it
could go on to the voters. (Because it was a citizens’ referendum, only 25% of
the Legislature had to approve it in each vote, vs. a simple majority for
proposals originating in the Legislature.) It was almost certain the amendment
would be able to pass with the 25% vote required in the Legislature.
But in July 2002, the Senate president abruptly adjourned
the Legislature (meeting as a Constitutional Convention) before it could take a
constitutionally required vote on the Pawlick amendment. It is important
to note that it was the Republican Senate Minority Leader, Brian Lees, who,
… made the controversial motion to adjourn the ConCon
[Constitutional Convention] without voting on the amendment. The motion passed,
but some charged that the move circumvented the democratic process…. “The fact
that the Democratic senate president and the Republican minority leader
supported that motion made all the difference in the world to the outcome,”
said [Gay & Lesbian Political Caucus lead lobbyist, Arline] Isaacson.[154]
There was tremendous outrage among pro-family voters.[155]
The amendment was unconstitutionally killed. Boston Globe
columnist Jeff Jacoby wrote that Senate President Birmingham’s,
… crude sabotage last week of a proposed constitutional
amendment that would have enshrined the traditional definition of marriage –
one man plus one woman – was not just illegal, deceitful, and a slap in the
face of millions of Bay State voters…. He strangled the proposed marriage
amendment by allowing only a vote to adjourn, thereby denying more than 130,000
petitioners the up-or-down vote they were entitled to and wiping his feet on
the Constitution he took an oath to uphold.[156]
The Massachusetts Supreme Judicial Court (SJC) even issued
an opinion that Acting Governor Jane Swift was constitutionally required
to call the Legislature back into session to vote before the 2001-2002 session
ended,[157] though admitting the
Court had no authority to force the Governor to take action. (This occurred
just as Romney was about to take over as Governor in January 2003.)
Sally Pawlick of Massachusetts Citizens for Marriage with
friends at Article 8 Alliance-MassResistance demonstration in front of the
Supreme Judicial Court, February 2004. Still hoping that Governor Romney might
act on the marriage amendment pending from 2002. (MassResistance photo)
But Romney said nothing about this constitutional crisis –
either during his campaign, or during his early days as Governor.[158]
It can be argued that this amendment was still “alive” and still had to be
voted on even after Romney took office.[159] So much for his
commitment to upholding the constitution – or “letting the people vote” on
marriage. (That rallying cry would later form the core of his public
pronouncements after the Goodridge ruling.)
Romney just wanted the Pawlick amendment to go away. But
why, if he was a defender of marriage? Because he was also committed to gay
rights and domestic partner benefits (civil unions). His aide Eric Fehrnstrom
said Romney “sees no reason to change the current laws, which allow for
domestic-partner benefits to public employees.”[160]
Romney’s family members signed the petition to put it on the
ballot “without reading the fine print,” Fehrnstrom said, but he has no reason
to believe they do not support it. “Mitt did not know they signed it, and Mitt
does not support it,” he said. “As far as Mitt is concerned, it goes farther
than current law, and therefore it’s unnecessary.”[161]
Why was Romney embarrassed that his wife, son, and
daughter-in-law had signed the amendment, making the excuse that “they hadn’t
read the fine print”? What was too extreme about it? Simply that it would ban
“civil unions” (a relationship that was the “legal equivalent” of marriage).
Here is the text of that proposed amendment:
Full Text of Protection of Marriage (Pawlick) Amendment
(2002)
It being the public policy of this Commonwealth to
protect the unique relationship of marriage in order to promote, among other
goals, the stability and welfare of society and the best interests of children,
only the union of one man and one woman shall be valid or recognized as a
marriage in Massachusetts. Any other relationship shall not be recognized as a
marriage or its legal equivalent, nor shall it receive the benefits or
incidents exclusive to marriage from the Commonwealth, its agencies,
departments, authorities, commissions, offices, officials and political
subdivisions. Nothing herein shall be construed to effect an impairment of a
contract in existence as of the effective date of this amendment.
Note that the final sentence would have kept any existing
“partner benefits” for public employees intact. Thus, Romney’s statement that
it would “change the current laws” on benefits was inaccurate.
Marriage amendments during Romney’s
term: He supported two flawed amendments either establishing or allowing civil
unions
At the time the Pawlick amendment was unconstitutionally
shut down by the Senate President (in July 2002), Romney was working with the
homosexual Log Cabin Republicans (who had endorsed him for Governor), as well
as homosexual campaign staffers. One prominent member of the Log Cabin group on
Romney’s team, Abner Mason, had been its national president and was also Chief
Policy Advisor to Acting Governor Jane Swift (who would refuse to call the
Legislature back for a vote on the Pawlick amendment). Mason was likely
advising Romney to oppose the Pawlick amendment. (He later served on
Governor-elect Romney’s transition team.)
Romney wanted to be sure same-sex couples could not be denied
the rights he had promised to promote. Domestic partnership benefits would be a
“hallmark” of his leadership as Governor, he had said.[162]
The homosexual newspaper, Bay Windows, interviewed
Romney in 2002 during his campaign for Governor:
Bay Windows: Do you support the Protection of Marriage
Amendment [the Pawlick amendment, H4840]?
Mitt Romney: No, because it would outlaw domestic partner
benefits for same-sex couples.
BW: Do you believe the Protection of Marriage Amendment
initiative should be put before voters?
MR: The people have a constitutional right to put questions
before the voters. But, if it had been on the ballot, I would have voted no.
BW: Do you believe the Legislature should have voted on the
Protection of Marriage Amendment (H. 4840) rather than voting to adjourn, even
if that meant that H. 4840 would have passed?
MR: I don’t believe in stifling democracy. I believe the
Legislature should have had an up or down vote on the merits after listening to
arguments on both sides of the issue.
BW: If an initiative petition passed (on the ballot) that
prohibited gays and lesbians from enjoying certain rights (like a Protection of
Marriage Act or a repeal of the gay and lesbian civil rights law), would you
support overturning that decision in the following legislative session? Or
would you let the voters’ decision stand even if it denied gays and lesbians
their rights?
MR: I would do everything in my power as Governor to educate
the public on the need to fight discrimination of any kind.[163]
But if Romney really believed in democracy and took
seriously his oath to uphold the Constitution, why did he not call the
Legislature back into session (as a Constitutional Convention) in 2003 to vote
on the Pawlick amendment? The Supreme Judicial Court, before whose Goodridge
ruling he would kowtow, had even opined that the Governor (Jane Swift in 2002)
should call the Legislature back to vote.
In his promise “to fight discrimination of any kind,”
did Romney mean he would fight any ban on same-sex marriage? That is surely
what Bay Windows and the Log Cabin Republicans would include in that
phrase. Romney was used to talking with them about this, and he knew how they
used the language. At a minimum, he was saying he would not support any
amendment that would ban civil unions or domestic partner benefits. Would he,
or would he not, have worked to defeat the Protection of Marriage Amendment in
its later required votes? Would he fight to overturn the will of the people
(whose right to vote he said he supported) if it had finally passed? He left
these questions hanging.
On how “civil unions” and “domestic partner benefits” should
be defined, or which exactly he supported, Romney was inconsistent. The
distinction between the concepts was purposely left vague throughout the debates
in 2003-2005. He had even implied to his Log Cabin Republican supporters in
2002 that civil unions (or partner benefits), in his mind, differed from
heterosexual marriage only in name: “Call it whatever you want. Just don’t
use the M-word,” he then said.[164]
Shortly before the Goodridge ruling (in August 2003),
the Lawrence Eagle-Tribune reported on Romney’s meeting with their
editorial board. They asked him what his response would be to the expected SJC
ruling:
Gov. Mitt Romney said gay couples in Massachusetts should
receive much the same work, social and family benefits as married couples –
except for the right to be married. “I draw the line there,” he said….
“Marriage should be between a man and a woman,” the
governor said. “But I believe those in domestic partnerships should have
medical insurance rights, survivor benefits, child visitation and adoptive
parent rights – the same civil rights married couples enjoy.”
And, Romney said, he would “look to have our laws reflect
the views I have stated, regardless of what the court does.”
The governor did not go so far as to endorse a Vermont-style
civil unions law for Massachusetts if the state’s high court rules the
constitution does not prohibit civil weddings for gays and lesbians….
While he supports domestic partnerships, Romney spokeswoman
Shawn Feddeman said the governor opposes “Vermont-style” civil unions because
they are “too much like marriage.” Whether the governor decides to support
any of the bills pending in the Legislature [including the Massachusetts
Family Institute-Travis-MA&PA marriage amendment, basically repeating the
Pawlick wording] or push his own proposal, Feddeman said, “You’ll have to
wait and see.” …
[GLBT lobbyist Arline Isaacson said,] “Governor Romney has
always made us a little nervous and worried about his views on this issue,”
Isaacson said. “But we are also encouraged because he has shown a willingness
to think his position through and reconsider his position over time.”[165] [Emphasis
added.]
The author at a rally for MA&PA amendment in early
February 2004 on the Boston Common. I did not agree with the amendment
strategy, but believed that the rogue judges needed to be removed from office.
(MassResistance photo)
MA&PA amendment and the start of compromise
Thus, in his first year as Governor, he would not take a
leadership role and commit to supporting a marriage amendment. He wanted the
Court to make the first move.
The day the Goodridge ruling was announced (November
18, 2003), Romney’s brief response promised his support for “an
amendment.” Did this mean the pending Travis-Massachusetts Family Institute
“Defense of Marriage” amendment, called “MA&PA” (which would have banned
civil unions)? That was not clear, since he added that he also wanted to see
same-sex partner benefits:
I disagree with the Supreme Judicial Court. Marriage is an
institution between a man and a woman. I will support an amendment to the
Massachusetts Constitution to make that expressly clear. Of course, we must
provide basic civil rights and appropriate benefits to nontraditional couples,
but marriage is a special institution that should be reserved for a man and a
woman.[166]
What did “appropriate benefits” mean? The day after the
ruling, he said he would “work with the Legislature on a parallel track to
establish some rights for same-sex couples.” On the “Today Show” (NBC) he
repeated the rights and benefits wording from his November 18 statement:
I agree with 3,000 years of recorded human history, which
frankly is a contradiction of what the majority of the Supreme Judicial Court
said,” Romney said on “Today.” “Of course, at the same time, we should [be]
providing the necessary civil rights and certain appropriate benefits” to
same-sex couples.[167]
Just months earlier he had told the Eagle-Tribune
that he would not support more inclusive “civil unions.” But the day
after the ruling, Romney:
… told TV news stations that he would support a
Vermont-style civil union law in Massachusetts, but reiterated his support
for a constitutional amendment that would clarify that “marriage is an
institution between a man and a woman.” The Governor’s strong support for
the amendment may persuade more lawmakers to vote for the Massachusetts
Affirmation and Protection Amendment, which supporters call “MA&PA,” said
Mr. Crews [executive director of the amendment’s sponsor, Massachusetts Family
Institute].[168]
[Emphasis added.]
But Crews got that wrong: Romney’s support for MA&PA (in
its original wording) was clearly not “strong,” since it would ban civil
unions – a ban Romney now seemed to oppose. Even the Massachusetts
Family Institute’s legislative sponsor for its MA&PA amendment,
Representative Philip Travis, was starting to go wobbly. He had said in early
November 2003 (before the Goodridge ruling) that he could “tolerate
civil unions, as long as marriage was defined as being for heterosexual couples
only.”[169]
Compromise was in the air. When Romney said on November 18
he would support “an” amendment, he must not have meant the MA&PA
amendment, after all. (Did Crews and MFI know that then?)
The Boston Globe understood that Romney’s quandary in
the days after the Goodridge ruling was how to maintain a centrist
position on a black and white issue. He struggled to “find a middle ground on a
subject that polarizes voters.”[170]
The gay marriage issue is not of [Romney’s] choosing; during
last year’s gubernatorial campaign, he took pains to finesse questions of gay
rights, and such issues have hurt him previously in his political career….
Barely an hour after the court’s opinion was made public on Tuesday morning, he
delivered a nuanced, carefully prepared response that included elements to
satisfy both sides of the political spectrum.[171]
The Globe noted:
A few hours later, Romney seemed to modify his position,
telling reporters that he believes the court would allow some version of civil
unions to be approved instead of outright gay marriage. He has not provided a
full list of what rights and benefits he believes the civil unions should carry
with them, but has said health coverage and hospital visitation rights should
be included.[172]
Romney was floating the idea that a constitutional amendment
might not have to be passed after all. Possibly the day could be saved by
passing a law establishing civil unions. (Of course, the Court still had to be
satisfied!)
Why the confusion? Because, according to his spokesman Eric
Fehrnstrom, “The governor is not a social crusader. He did not run for office
to crusade for or against gay rights. But sometimes issues are forced upon you,
and they require a response.... The governor has taken a consistent, principled
position.”[173]
But the Governor had not “taken a consistent,
principled position.” Even though he knew the Goodridge decision was
imminent, how the Court was likely to rule, and what amendment was currently
pending in the Legislature, he was not ready with consistent position
statements. He’d had a year to think about these issues since his election.
That he could not hold to a consistent position is telling. The Globe
noted:
Romney’s effort to frame the debate reflects a realization
that there is nothing he can do to keep himself out of it. The governor and his
aides began discussing how they would respond to the ruling over the summer, as
the state and the nation waited for a decision that everyone knew could be a bombshell.[174]
If he was truly supporting the Massachusetts Family
Institute-Travis-MA&PA amendment in November 2003, why had he so vehemently
opposed the Pawlick amendment in 2001-2002? Both would have outlawed the
“legal equivalent” of marriage (civil unions).[175]
Clearly, he could not simultaneously support that amendment and a
“Vermont-style civil unions” or “partner benefits” bill. Did MFI really think
he was on their side on MA&PA?
State Representative Phil Travis, legislative sponsor of
the MA&PA amendment, speaking at a State House press conference sponsored
by Concerned Women for America in early 2004. That group wanted to hold the
line on banning civil unions. (MassResistance photo)
Full text of the MFI-Travis-MA&PA Amendment –
original wording (2003-4)
It being the public policy of this Commonwealth to
protect the unique relationship of marriage in order to promote among other
goals, the stability and welfare of society and the best interests of children,
only the union of one man and one woman shall be valid or recognized as a
marriage in Massachusetts. Any other relationship shall not be recognized as a
marriage or its legal equivalent.
(Some conservative pro-family advocates were concerned that
even this original language of the amendment may have left wiggle room for the
Legislature to create civil unions.[176])
Brian Camenker of Parents’ Rights Coalition (later Article 8
Alliance and MassResistance) had warned of a looming compromise on civil unions
as early as mid-December 2003. (As noted, Representative Phil Travis had told
the press in early November that, “he could tolerate civil unions, as long as
marriage was defined as being for heterosexual couples only.”) Camenker wrote
in an e-mail alert to his activists:
Over the last few weeks several news outlets … have reported
some very depressing news about the Constitutional Amendment. According to
reports, the “pro-family” sponsors of the amendment [Massachusetts Family
Institute, and legislative sponsor Rep. Philip Travis] have announced they
would be willing to water it down to allow for “civil unions” or other
legally-enforced homosexual relationships – which the public would be forced to
officially and legally recognize.
According to some insiders, they are doing this because of
the increased pressure by the homosexual lobby on every legislator. So they
want to make it as easy as possible. Political expediency. A year ago, the very
concept of homosexual “civil unions” was considered out of the question. Now,
it’s being horse-traded with barely a second thought.
It gets worse. On Thursday, the Globe reported the Senate
had already written a civil union bill, and was asking the Supreme Judicial
Court its opinion on whether it would pass muster in the light of their Nov. 18
ruling.
Make no mistake about this. Civil unions is not only
“marriage” in nearly everything but the name, but it is a huge step for the
homosexual movement. It forces society to officially, legally recognize
homosexuality as a valid, healthy, normal relationship. Not only would schools now
be free to push this idea on children, and greeting cards, etc. have homosexual
“civil union” themes, but discrimination laws, workplace laws, “hate-speech”
crimes would all have official authority.
Thus, we have before us a Constitutional Amendment that (1)
wouldn’t go into effect until three years from now, at the earliest; (2) faces
three years of difficult, uphill battles; and (3) represents an odious
compromise. Should we support this? Is this a Trojan Horse – an excuse for
“pro-family” lawmakers to say they did something, while wasting valuable time
and energy?
Or do we go to the source of the problem – and force the
Legislature and Governor to turn this around properly, and defy the rogue court
and the militant homosexual lobby?[177]
Pro-homosexual legislators wanted to be certain the door was
left open to civil unions, and House Speaker Tom Finneran was busy working on a
compromise amendment to ensure that. He was also proposing to pass a statute
defining marriage that would take effect before May 2004, thereby blocking
issuance of marriage licenses to same-sex couples, but that was opposed by the
Senate leadership. (Note, however, that even Finneran’s sincerity as a
supporter traditional marriage is questionable.[178])
During this legislative wrangling in early February 2004,
Romney’s spokeswoman said:
The governor believes the amendment should be narrowly
written to preserve marriage as an institution between a man and a woman. Any
rights and benefits extended to same sex couples should be statutorily defined
and not written into the constitution.[179]
Romney was thus on board with the compromise to allow civil
unions, he claimed he just didn’t want them in the Constitution.
Meanwhile, people from all over the state held a forlorn
rally outside the State House on a frigid day in early February, still trusting
their “pro-family” leaders would hold the line on civil unions. Thousands
flocked to hear Sandy Rios (Concerned Women for America), Archbishop Sean
O’Malley, columnist Don Feder, Raymond Flynn (former Boston Mayor and Vatican
Ambassador), retired Massachusetts SJC Justice Joseph Nolan, and others.
But their hopes and signs (which they continued to use
through March) calling for bans on “gay marriage” and “gay civil unions”
were already sadly out of date. Representative Travis (lead sponsor of
MA&PA) and Governor Romney had already staked out their compromise position
to allow civil unions. The Boston Globe reported that Travis had dropped
the final words in MA&PA (banning civil unions) two days before the
Constitutional Convention met on February 11. Yet Travis and Romney were allied
with Massachusetts Family Institute, co-sponsor of the early February rally.[180]
Pro-family footsoldiers played for fools by establishment
“conservative” leaders at the March 11, 2004 Constitutional Convention: Here
they hold out-of-date signs reading “No to Gay Marriage; No to Gay Civil Union”
– long after their leaders had given up on banning civil unions.
(MassResistance photo)
In the end, the original version of the Travis-MA&PA
amendment was not even debated, much less voted on. The remaining amendment
proposals all included or allowed civil unions in some form.[181]
Why had “pro-family” legislators agreed to drop the last
four words of the MA&PA amendment to allow for civil unions?
What role did the Governor play in these negotiations? Professor Mary Ann
Glendon, advisor to Romney, commented on the change:
Mary Ann Glendon, a Harvard Law School professor consulted
by Governor Mitt Romney and others seeking advice on overturning the Supreme
Judicial Court’s Nov. 18 ruling, said she has absolute faith that the proposed
amendment, lacking the last four words, would preserve the Legislature’s right
to eventually create civil unions. “After the amendment, we’re in a whole new
ballgame where what kinds of benefits for what kinds of households is open for
discussion,” Glendon said.[182]
The ability of the Legislature to create civil unions was
now touted as crucial to “overturning” the Goodridge ruling. That seemed
to be just what Romney wanted. Was MFI ready to go along? Ron Crews of MFI
(still kowtowing to the Court’s authority) said then, “he was not altogether
certain that [the later creation of] civil unions would pass muster [with the
Court] if the amendment were enacted, but said his primary goal for now is
simply to define marriage.”[183]
Kris Mineau of the Massachusetts Family Institute
(in center, light coat) outside the State House in late March 2004, in the
midst of their month of compromising. The legislators were inside working for
an amendment that would not ban civil unions. Thus, these signs –
reading “No to Gay Civil Union” – were badly out of date. (MassResistance
photo)
Thus, the newly acceptable goal was: Define marriage as one
man/one woman, but allow its legal equivalent for same-sex
couples – “civil unions.” Yet just a few months earlier, MFI had written in its
E-Alert that no compromise allowing civil unions was
acceptable.[184]
In summary, by early 2004, Romney:
- Had run his 2002 campaign for Governor with promises to the Log
Cabin Republicans he would fight for their “domestic partner benefits” (which
would be a “hallmark” of his leadership).
- Told the homosexual newspaper Bay Windows he would oppose
any amendment that would “outlaw domestic partner benefits for same-sex couples”
(e.g., the Pawlick amendment, or later MA&PA), and he would “fight
discrimination of any kind” (presumably in laws or amendments).
- Made conflicting statements in 2003 on whether or not he favored
“Vermont-style civil unions” (equivalent to marriage).
- Declined to take a position on pending marriage amendments (in
August 2003). After the Court’s same-sex marriage ruling (November 2003), but said
he was supporting “an amendment” to define marriage.
- Supported loosening MA&PA’s language to allow for civil
unions in the future – but was still saying he opposed civil unions in the
Constitution (February 2004). Said he “would not close the door on some
system that provided the protections and benefits [he] has supported in the
past. The governor has never fully spelled out what those rights would be…”[185]
But by late March 2004, Romney would lobby hard for the
Travaglini-Lees “compromise amendment” which would ban same-sex marriage yet establish
civil unions in the Constitution as a right. His advocacy made the
difference in its passage. (See details below.)
Thus, the homosexual radicals had moved incrementally toward
their goal, backing the pro-family side into a corner by pushing them ever
farther away from a strictly worded marriage amendment. The pro-family leaders’
capitulation was surely influenced by Governor Romney’s commitment to
“partnership benefits” or “civil unions.”
Romney had, after all, received backing from the Log Cabin
Republicans in 2002 partly because of his promise to bring legislators over
to that pro-civil-unions position. Bay Windows had reported during
the campaign:
Though his positions on gay rights may not be as strong as
those of his Democratic challenger, Romney, [former president of Massachusetts
Log Cabin Republicans Mark] Goshko says, is committed to following through on
them. Romney also states that as governor he’s prepared to sit down with
legislators and talk about gay issues.
“What I believe is that as the token Republican in state
government, which I will be, but with some powers and a great deal of
visibility and with a bully pulpit, my job in order to get anything passed or
to make any change on Beacon Hill will be to create two sources of power, if
you will,” says Romney.
“So that will be an area where I will be able to advance
those issues that I think I can create broad public support for and
specifically in the area of visitation rights and survivorship rights, I’ll
call them, ...those kinds of things I think I can generate a great deal of
public support for and therefore create pressure for legislators that
otherwise might not think in those terms….
I will be someone who will be advocating basic civil rights
for all of our citizens. And that will be something which will be clear to
legislators as well as to the public.”[186]
[Emphasis added.]
Demonstrator at the March 11, 2004 Constitutioal
Convention as the Legislators debated badly flawed marriage amendment proposals.
(MassResistance photo)
Travaglini-Lees Compromise Amendment,
2004-2005
By the time a final amendment wording was voted on (March
2004), civil unions (with all the benefits of marriage) were to be embedded
in the Constitution as a right alongside the one-man/one-woman definition
of marriage. The homosexual lobby knew this Travaglini-Lees compromise amendment
would likely fail. And if the same-sex marriages actually began in May 2004 (as
they did with Romney’s help), the amendment would almost surely fail.[187]
But Governor Romney followed where they led.
However, most of the Republicans in the Legislature were ready
to hold fast and vote against the proposed Travaglini-Lees compromise,
since it made the absurd claim marriage was “unique” – but civil unions were
entirely the same. It stated clearly: “All laws applicable to marriage shall
also apply to civil unions.”
Full text of the Travaglini-Lees Amendment (2004-5)
It being the public policy of this Commonwealth to
protect the unique relationship of marriage, only the union of one man and one
woman shall be valid or recognized as marriage in Massachusetts. Two persons of
the same sex shall have the right to form a civil union if they meet the
requirements set forth by law for marriage. Civil unions for same sex couples
are established hereunder and shall provide entirely the same benefits,
protections, rights and responsibilities that are afforded to couples married
under Massachusetts law. All laws applicable to marriage shall also apply to
civil unions.
The Massachusetts Catholic Conference (MCC) issued a
strongly worded critique (drafted by eminent law professors, including Governor
Romney’s sometime advisor, Professor Mary Ann Glendon of Harvard) warning that
this amendment would not protect marriage and was a threat to religious
liberty:
[T]he first and third sentences of the proposed Amendment
directly contradict one another. In the first sentence, the Amendment asserts
that marriage occupies a “unique” legal status in Massachusetts: it is reserved
for “the union of one man and one woman.” In the third sentence, however, the
Amendment guts this supposedly “unique” status by granting to “same sex
couples” the ability to enter into civil unions that “shall provide entirely
the same benefits, protections, rights and responsibilities that are afforded
to couples married under Massachusetts law.”
[B]y constitutionally guaranteeing same-sex couples
precisely the same legal and social status as one man-one woman couples, the
Amendment affirmatively erases the distinction between them by depriving the
Legislature of any authority to adapt legislation to reflect the different
needs or biological realities of the two types of couples.… the Amendment also
carries with it the much more powerful mandate that all three branches of the
state government must support and promote same-sex civil unions as legally
equal to marriage… Most significantly, churches and other religious
organizations that fail to embrace civil unions as indistinct from marriage may
be forced to retreat from their practices …[188]
Massachusetts Attorney Dwight Duncan (who helped draft the
critique for MCC) wrote on the Boston Globe marriage debate blog:
I’ve been thinking about today’s convention, and why it
makes sense to split the Travaglini-Finneran [eventually the “Travaglini-Lees”]
Amendment … To refresh everyone’s recollection, the Leadership Amendment purports
to be a compromise: It defines marriage as only between a man and a woman, “to
protect the unique relationship of marriage,” and then grants same-sex couples
“entirely the same benefits, protections, rights and responsibilities” as
marriage under state law.
Obviously, this is an incoherent mish-mash, appealing
only to politicians who want to have it both ways, by ostensibly offering
something for everybody. Both sides of this debate, however, are adamantly
opposed to it: gay marriage opponents like myself, because this is just gay
marriage by another name; and gay marriage proponents, because this seems
discriminatory on its face. There are also enormous practical problems with
getting such an amendment favorably voted on at the ballot box in November
2006. As gay-marriage advocate Prof. Laurence Tribe of Harvard has said,
“[I]t’s a dead sure loser from the word go... It’s ideally written to get zero
votes.”
The real compromise would be to split the amendment, one
regarding marriage and the other regarding civil unions. The people of
Massachusetts would then have a clear choice in making this important decision.[189] [Emphasis
added.]
Jan LaRue, Legal Counsel for Concerned Women for America,
commented:
They ought to call it “The Shell-Game Amendment.” It’s
tragic when this kind of wimpish compromise is foisted on the people of
Massachusetts as “The Leadership Amendment.” Marriage is at stake here and this
worthless sop is the best they can do? On top of that, the civil union section
discriminates against opposite-sex couples.[190]
C. J. Doyle, president of the Catholic Action League of
Massachusetts, called it,
… a fatally flawed measure, satisfying no one, contrived by
politicians pretending to oppose same-sex marriage, yet terrified of offending
the homosexual lobby. This intrinsically defective amendment was a cynical
attempt to divide and sabotage the pro-family movement by legislative
careerists devoid of principles and indifferent to the common good.[191]
But it was not just the fault of the Legislative leadership.
The Governor, too, had pushed the decoy amendment. In an amazing move, he
twisted Republican legislators’ arms, making the difference that secured
preliminary passage of the amendment. The Boston Globe headline said
it all: “In crucial shift, governor sways 15 in GOP
to support measure.”[192]
The 22 House Republicans had held fast, opposing any amendment that would allow
civil unions in the Constitution … until Governor Romney stepped in:
That all changed yesterday, however, when 15 of that
22-member bloc broke away at the urging of Governor Mitt Romney and voted in
favor of a proposed amendment that would ban gay marriage but create
Vermont-style civil unions.
Those 15 members provided the margin of victory, observers
from both camps said yesterday after the measure passed by just five votes.[193] [Emphasis added]
Romney’s Chief of Staff, Beth Myers, had lobbied the 22
Republicans hard, telling them that, “the governor needed the Legislature to
pass some amendment so he could justify his planned request to the Supreme
Judicial Court to stay its ruling legalizing gay marriage.” One Republican
Representative said, “Basically, we were boxed in, and something was better
than nothing.” But the Republican leaders also knew the amendment was “doomed
to failure at the ballot.” The homosexual lobbyists saw this as an incremental
step towards their eventual victory, sensing they would be able to defeat the
amendment during the 2005-6 session (which they did), before it ever got to the
voters.[194]
Republican amendment proposals were not allowed to come up
for a vote. And Romney’s aides told the Republicans they had to vote for the
compromise because “it was the only amendment on the table and therefore should
be supported.”[195] The New York Times
reported:
Ronald A. Crews, president of the Massachusetts Family
Institute, which led the opposition to same-sex marriage, said he was not sure
what approach conservatives would take now. “That civil-unions language is
still there,” he said. “We didn’t want it there. But at least,” he said of the
amendment, “it does preserve the definition of marriage.”[196]
The Massachusetts Catholic Conference, which had argued so
forcefully against the compromise just a few weeks earlier,[197]
urged Catholic legislators to vote for it in the end, “when it became clear
there were not enough votes in the Legislature to split the questions.” Gerald
D’Avolio, Executive Director of the MCC, said:
The reason we asked legislators to support [it] was to keep
the issue alive in front of the voters, and that is what we have done…. [It]
gives the citizens an opportunity to look at the issue of marriage and take a
position. [And it] gives the people an opportunity to vote on the issue and it
also rejects four judges in the Goodridge case, saying the people are going to
decide, not the judges.[198]
Republican Representative Vinny deMacedo, who voted against
the compromise, said it was “like forcing John F. Kerry supporters to vote for
Kerry and George W. Bush at the same time. He predicted it will fail at the
ballot box in 2006.” On the other side, Senator Jarrett Barrios said that the
15 Republicans voting for the measure:
… means that Romney personally can be held responsible for
the amendment, even though he has come out against civil unions. “There were
enough ‘no’ votes to kill this,” Barrios said. “The governor is in the unique
and curious position of now creating civil unions, despite every promise to the
contrary.” … State Representative Michael E. Festa … who supports gay marriage,
said the fact that so many of his colleagues were uncomfortable with their
votes bodes well for their side. “I’m optimistic – if it gets on the ballot, it
will be defeated,” Festa said.[199]
But Romney had promised the Log Cabin Republicans in
2002 that he would work to create “partnership benefits” or “civil unions”
(neither of which he had ever clearly defined). He was for them before
he was against them, so it is hardly surprising that he lobbied for
them in March 2004. (Was he ever really against them?)
The Travaglini-Lees compromise amendment never made it to
the voters, because it failed to pass in a second required legislative vote in
September 2005 – when both pro-family and pro-gay-rights legislators voted
against the concept of “civil unions.” Governor Romney also opposed it at that
time.
The fatally flawed Travaglini-Lees amendment was
killed in its second legislative vote in September 2005. Only a few homosexual
activists turned out that day, knowing the bill would go down (as they had
planned). Their signs read: “No Discrimination in the Constitution.
MassEquality.” Governor Romney had abandoned this version of his ephemeral amendment
solution, and had jumped on board with the new VoteOnMarriage effort a few
months earlier. No Mass. Family Institute or Catholic Vote supporters bothered
to come out that fine September day. But Article 8 Alliance-MassResistance
demonstrators were there to advocate removing the “gay marriage” judges. Here,
the author (in black slacks, holding the “Remove Marshall” banner), chats with
a MassEquality acquaintance. (MassResistance photo)
The effect of Romney’s push for civil unions in 2003-04 was
effectively to sap the courage and stamina of the stalwart pro-family forces
(both Republicans and Democrats) in the Legislature, and give time – a
strategic advantage – to the other side.
A former (and possibly ongoing) advisor to Romney,
homosexual activist Patrick Guerriero, explained to the Boston homosexual
newspaper, Bay Windows, how the compromise amendment’s initial passage –
pushed over the finish line by Romney – helped their gay-marriage cause:
Patrick Guerriero, [national] president of Log Cabin
Republicans and former state representative and mayor of Melrose
[Massachusetts], said that while he and others lobbied [Republican Senate
Minority Leader Brian] Lees to drop his [compromise] amendment, in the end he
believes the amendment bought LGBT advocates time. Guerriero explained, “It
changed the whole fabric of the debate, and it peeled support away from folks
on the very far right….”
After the amendment passed in 2004 [the first of three
approvals required] Lees became the target of concerted lobbying efforts,
mostly from MassEquality and same-sex marriage supporters. He [received] 7000
contacts from constituents … The message from the same-sex marriage supporters
was that couples had already married, and the old compromise was no longer a
compromise for same-sex couples; it was a genuine step backward….[200]
Senator Lees later turned against the amendment bearing his
name. He gave a powerful speech when it came up for its second vote, which:
… sounded the death-knell of his amendment…. Lees may have
seemed like a recent convert in the movement for same-sex marriage, but he told
Bay Windows his position on same-sex marriage has remained consistent: he
says he has always been for it.[201]
[Emphasis added.]
Did Romney, who reportedly was closely allied with Lees,
really believe Lees was acting in good faith to halt same-sex marriage through
the compromise amendment? Lees had “been an ally of the LGBT community since
his election in 1988. From the beginning, he was openly pro-gay rights,” Bay
Windows confirmed. [202]
Senate President Robert Travaglini (left) and
Senate Minority Leader Brian Lees (right) at the State house in November 2003.
Lees later admitted he was always on board with “gay marriage.” (MassResistance
photo)
An analysis in Bay Windows made perfectly clear the
strategic advantage that these extended “debates” and “compromises” over
marriage amendments gave to their side:
The Goodridge ruling forced the Legislature – for better or
worse – into action and was the catalyst for many legislators to begin to
grappling with the issue in a more urgent and personal way….
Ironically, it was the introduction of H. 4840, a
citizen-initiated petition [the Pawlick amendment, 2001-2002] to ban same-sex
marriage and any other legal recognition of same-sex couples … that spurred the
formation of MassEquality in 2001.
“In a strange way our opponents did us a favor in 2001 by
pushing for [that] constitutional amendment because that forced us to get more
organized than we would have been as a community,” says [Arline] Isaacson, a
MassEquality steering committee member. “And it allowed us an opportunity to
talk with legislators about our families and our relationships and the injustices
we faced in ways we normally couldn’t. It literally created an opportunity ...
that ended up being invaluable this year.”
Emboldened by the defeat of H.4840 – after legislators voted
to adjourn a 2002 constitutional convention without taking up the proposed
amendment – advocates filed civil unions and gay marriage bills … as a means to
continue educating lawmakers on the issue.
Meanwhile, the MassEquality coalition held together to work
against a new amendment also filed this session by state Rep. Phil Travis,
D-Rehoboth [MA&PA, drafted by Massachusetts Family Institute]. It was that
amendment that eventually brought this issue to this year’s constitutional
convention. [In 2003-2004,] Travis’ amendment, and the threat it posed to the
Goodridge decision, spurred an explosion of growth at MassEquality...[203]
Then, as noted above, the MassEquality strategy to push the
Travaglini-Lees compromise amendment (while killing off the
MFI-Travis-MA&PA amendment) “backed their most hardcore opponents” in the
Legislature into a corner, where Romney helped lead them.
The Massachusetts Family Institute (MFI) and the
Massachusetts Catholic Conference … were less than pleased, a fact that does
not bode well for the future of the [Travaglini-Lees] amendment, which must
pass the Legislature next year in order to make the 2006 ballot.
Crews [of MFI] called the amendment’s passage a “meager
victory” March 29 [2004] and … he admitted he does not know if he himself would
vote for it should it make the ballot. …
MassEquality members are confident that given the closeness
of the [March 29, 2004] vote and the likelihood that marriage licenses to will
issue to same-sex couples beginning in May, the chances for defeating the
amendment at next year’s convention are favorable….[204] [Emphasis added.]
Thus, pro-family politicians and “polite” leaders actually
were being played for fools by the sexual radicals. They seemed to have no
understanding of what was hitting them. Their compromises in the amendment
process did more harm than good to the traditional marriage cause. They yielded
to homosexual radicals more opportunities to lobby in the State House. The
radicals proceeded to flood legislators’ offices with emotional propaganda,
pushing them farther into the same-sex marriage “acceptance” mode.
Gay Rights Lobby in the Massachusetts Legislature. They
“owned” the State House, yet Governor Romney was “sure” a marriage amendment
would pass. (MassResistance photo)
Governor Romney made no mention of
the compromised nature of the Travaglini-Lees amendment in his public statement
after its preliminary passage, but mentioned only that it defined marriage as
the union of a man and a woman. He again reminded citizens to respect all
lifestyles. And he called on the Court to respect the democratic right of the
people to decide the marriage issue:
Earlier today the State Legislature met in a rare joint
session and passed an amendment that defines marriage as the union of a man and
a woman….
The process of amending the Constitution is a serious
matter. It should only occur on those few occasions when it is necessary to
resolve fundamental questions affecting all of the people….
People of differing views and lifestyles deserve respect and
decency from all of us. These are real people and real lives that are deeply
affected by this issue: traditional couples, gay couples and children. But,
even as we disagree, let us not forget that what we are talking about is a
basic social institution of our state and nation.
At the core of American democracy is the principle that the
most fundamental decisions in society should ultimately be decided by the
people themselves.
I believe the Supreme Judicial Court has an obligation, to
the Constitution and to the people of Massachusetts, to withhold their decision
until the people can consider this issue themselves.[205]
Across from the State House, March 2004. Many citizens
understood the intended-to-fail nature of the Travaglini-Lees compromise
amendment. (MassResistance photo)
But would the people ever get to vote? In April 2004, Ron
Crews (MFI) admitted that the issuance of same-sex marriage licenses that May
might end any realistic hope for final passage of the amendment:
For strategic reasons, as well as their underlying
opposition to same-sex marriage, opponents are eager to block the SJC ruling
moving from concept to reality on May 17. The future of the constitutional
amendment approved by state lawmakers in a special constitutional convention
last month [Travaglini-Lees] may depend on whether the state issues marriage licenses
between now and 2006. “An amendment may prove more difficult to pass” if
licenses are granted, Crews said. “The argument would be made by homosexual
activists that [an amendment would be] taking away a right they already have. I
believe there are a lot of folks who may support us on the issue but who, out
of sympathy, would be swayed by that kind of an argument.”[206]
Arline Isaacson (Massachusetts Gay & Lesbian Political
Caucus) speculated that Romney, motivated by his national ambitions, was going
to “do everything in his power to block the marriage licenses, including very
long-shot strategies that they know ultimately will fail.”[207]
The homosexual lobbyist was correct that Governor Romney was
engaged in a “very long-shot” strategy that he knew would fail (in his support
of the compromise amendment and request for a stay of the ruling). But she was
wrong that he would do “everything in his power to block the marriage
licenses.” He was, in fact, on course to hand out licenses to same-sex couples
on May 17. Might Isaacson have known that? Was her statement just a
smokescreen? (Recall that in 2010 she led the GLBT lobby in endorsing Romney’s
Legal Counsel from that period, Daniel Winslow, thanking him for “his
support of the Goodridge decision” – meaning just at this juncture. See
Chapter V.)
What was really going on in the Governor’s office?
Pro-family citizens were catching at any straw thrown their way during this
time, and hoped Isaacson was right that Romney would yet halt the licenses.
In late April 2004, Romney’s request to argue for a stay of
the Goodridge ruling before the SJC was denied – first by the Attorney
General, then by the Legislature (see Chapter V). This prompted him to question
if the compromise amendment might have been a sham. He said,
I’m wondering whether the first step they [the Legislature]
took, which was to pass an amendment, was a façade or was it a real effort to
limit marriage to a relationship between a man and a woman. If it is a real
effort with real intent, then the Legislature will give me the occasion to
reach the Supreme Court and ask for a stay. Otherwise, we will have same-sex
marriage in Massachusetts without a decision of the people.[208]
But the reader might ask: Was Romney’s feeble attempt to
delay same-sex marriage (by pleading with the Attorney General and Legislature
for permission to approach the Court) likewise insincere? As Professor Hadley
Arkes pointed out, if the Governor had been serious, he could have approached
the Court on his own. Furthermore, he had the authority to issue an Executive
Order. Were Romney’s actions at this time just a façade?
A generous interpretation is that Romney had played the game
as an amateur. For instance, had he been paying attention to the scandalous
scuttling of the Pawlick amendment in 2002 (through an unconstitutional
adjournment), he would have been aware that Republican Senate Minority Leader
Brian Lees had been complicit in that sleazy maneuver.[209]
Yet he trusted Lees to be acting honestly this time around.
By June 2005, Governor Romney and the new “Coalition for
Marriage”[210] were actively opposing
the Travaglini-Lees compromise amendment, and together they announced a new
initiative: the “VoteOnMarriage” citizens’ petition. The earliest the new
amendment proposal could reach the voters was November 2008.
Meanwhile, Romney’s same-sex marriages had been taking place
for over a year. People were getting used to the idea.
“VoteOnMarriage” Amendment, 2005-2007
In early 2005 – as the planned-failure compromise
amendment awaited its second legislative vote (in September 2005, when it would
be defeated) – Governor Romney was getting ready to help launch a new amendment
effort via citizens’ petition. The new “Coalition for Marriage” included the
Massachusetts Family Institute (allied with Focus on the Family), the
Massachusetts Catholic Conference, and other Massachusetts religious groups.
National organizations supporting it included the Alliance Defense Fund, Center
for Reclaiming America, Family Research Council, Catholic Citizenship, Toward Tradition,
Vision America, and United Families International. [211]
The VoteOnMarriage coalition held a rally at the
State House to kick off their new citizens’ referendum for a marriage amendment
(2005). The chief lobbyist for “gay marriage,” Arline Isaacson (lower right
corner), kept a close watch on the proceedings. (MassResistance photo)
The sexual radicals were not at all worried about the new
amendment effort. According to their chief lobbyist, Arline Isaacson:
MassEquality is losing little sleep over the prospect of a
[new] citizen petition because in terms of timing, anything that delays a vote
on an amendment helps its cause. “If they go for this initiative petition and
thereby help us block the ‘06 ballot question [the Travaglini-Lees compromise amendment],
they will essentially be permitting, enabling us to continue marrying for
two-and-a-half more years, and that only helps us in the long run,” Isaacson
said. She said that each year that passes with same-sex couples getting
married, legislators and the general public grow less concerned about same-sex
marriage, making the prospect of an amendment passing in 2008 more remote than
2006. …
Recent polling seems to bear out Isaacson’s conclusion….
Marty Rouse, campaign director for MassEquality … [said], “I find it intriguing
that some of our opponents are considering giving up on this current amendment.
If there was a vote in 2008, it gives us much more time to organize than if
there were a vote in 2006. Time is on our side. We need more time to prepare
and to educate.”[212]
Once again, a terribly flawed amendment was put forward,
this time called “VoteOnMarriage.” (Its very name accepted the premise that the
most basic concepts can and should be defined by popular vote.) Its wording
would not have banned civil unions, and would have grandfathered-in the
pre-existing same-sex “marriages” (thereby implying their validity).
Full text of VoteOnMarriage Amendment (2005-7)
When recognizing marriages entered into after the
adoption of this amendment by the people, the Commonwealth and its political
subdivisions shall define marriage only as the union of one man and one woman.
The VoteOnMarriage coalition falsely claimed that the SJC
had “ordered the state to issue marriage licenses to same-sex couples,” thus
revealing their belief that the court was supreme, and that they agreed with
Romney’s decision to issue licenses to same-sex couples. VoteOnMarriage also
wrote that the Court made “law” by “judicial fiat,” allowing the same-sex
marriages which had taken place since May 17, 2004:
Why is the amendment’s language on marriage not as simple as
previous amendments?
The reason for this language is because [sic] Massachusetts
law (by judicial fiat) allows homosexual marriage – no other state has our
dilemma. An amendment can change bad law, but it is extremely difficult to undo
what happened as the result of a bad law.[213]
VoteOnMarriage argued that their proposed amendment had to
leave “existing marriage licenses alone … [in order to pass] constitutional
scrutiny.” This amounts to a denial of the fraudulent nature of these licenses.
This strange approach was perhaps partly due to the fact that an immigrant law intern
(with Alliance Defense Fund) played a prime role in drafting the amendment.[214]
(How deeply involved were senior attorneys at ADF?) The VoteOnMarriage pamphlet
pushes this absurdity:
What does this amendment say about the existing homosexual
marriages?
Massachusetts is unique in that it is the only state which
allows homosexual marriages to take place. Under Article 1 of the U.S.
Constitution, it is very difficult to revoke rights retroactively that have
been granted by judicial decree or legislative act. Therefore, any amendment
attempting to dissolve the existing marriages is likely to be challenged under
federal law and struck down by the courts. For this reason, the amendment does
not address existing marriages – but also in no way recognizes or endorses
them.[215]
This reference to Article I of the U.S. Constitution could
only point to the ban on ex post facto laws (laws meaning passed
by a legislative body). There is nothing in the Constitution referring to
“judicial decree” or “judicial fiat,” or placing such a decree on a par with
law. (See Article I, Section 9.) The VoteOnMarriage pamphlet continues:
Why does this amendment not ban homosexual civil unions?
The reality in Massachusetts is that a constitutional
amendment banning homosexual civil unions would be unlikely to pass the
Legislature. Efforts to pass an amendment banning both homosexual marriage and
civil unions have failed twice – in 2002 and 2004. [Pawlick and MA&PA]
Under the new amendment, efforts to defeat objectionable legislation dealing
with civil unions can be undertaken in the Legislature.
How do we know this amendment will not be blocked like the
2002 amendment?
We are confident that the procedural maneuver of the Senate
President in 2002 blocking the earlier citizens’ petition will not be repeated
because of the current leadership’s stated commitment to the constitutional
process, our stronger grass-roots support and the Governor’s support of the new
amendment.[216]
(See Note 229 on how the Senate President weaseled his way
out of his promise to allow a vote.)
VoteOnMarriage strategists were ignoring the fact that
Legislators – in addition to being lobbied to death by homosexual activists –
had been living with same-sex “marriage” already for several years. W. James
Antle III wrote:
A recurring theme in the Massachusetts debate was that more
than 6,600 same-sex couples were married without any obvious social
catastrophes. And Goodridge supporters have succeeded in setting the bar for
such catastrophes unrealistically high – heterosexuals divorcing en masse in
response to gay weddings and perhaps the sky falling…. “The electorate and the
Legislature are just fed up with this issue,” [said] Josh Friedes of the
Freedom to Marry Coalition.[217]
And Legislators were no longer afraid to vote with the
powerful homosexual lobby as they had been in 2004, since that year’s election
did not punish those who had so voted. Rather, many decided to welcome their
campaign contributions.[218]
Article 8 Alliance-MassResistance and pro-family citizens
and groups around the country opposed the amendment. Their press release[219]
and Statement of Principle[220] on July 26, 2005
pointed out its flaws:
++++++++
Pro-Family Groups Oppose
Amendment to Massachusetts Constitution Proposed by VoteOnMarriage.org
Statement of Principle July 26,
2005
We, the undersigned, do hereby declare our opposition to the
newly proposed marriage amendment to the Massachusetts Constitution, announced
by the VoteOnMarriage.org ballot-question committee on June 16, 2005.
We are deeply disappointed that we have been put in the
position of publicly disagreeing with groups who may share our goal of ending
same-sex “marriage.” The signatories to this statement were not consulted on
the amendment by VoteOnMarriage prior to its announcement June 16.
The text of the amendment proposed by VoteOnMarriage.org
reads:
“When recognizing marriages entered after the adoption of
this amendment by the people, the Commonwealth and its political subdivisions
shall define marriage as only the union of one man and one woman.”
This flawed amendment would harm rather than help efforts to
end the nightmare of same-sex “marriage” in our state and country. It is not a
“clean” amendment (i.e., one clearly supporting traditional marriage and
outlawing “civil unions”). Its most serious flaws are:
·
It would recognize as legal all same-sex “marriages” which will
have taken place in Massachusetts from May 17, 2004 until the amendment should
take effect.
·
It would validate the Supreme Judicial Court’s authority to “make
law” through its November 2003 Goodridge same-sex “marriage” ruling.
·
It continues to give the green light to radicals in our schools
to claim that since same-sex “marriages” exist and are “legal,” our children
must be taught their legitimacy. Businesses and institutions would have to
continue to recognize them as well.
·
It would fail to ban “civil unions,” giving a tacit go-ahead to
the Legislature to authorize them.
Though not a part of the wording of the proposed amendment,
VoteOnMarriage and the Governor have pledged to work with the Legislature to
implement “reciprocal benefits” for same-sex couples. Given the SJC’s history,
the wording of this type of legislation would be crucial.
This amendment does nothing to attack the root problem:
runaway judges. Even if it were passed by the voters, the amendment would not
withstand those judges’ review. Besides, in regard to marriage, our constitution
is not flawed, and does not need amending.
The Massachusetts Constitution clearly states that “all
causes of marriage, divorce, and alimony … shall be heard and determined by the
governor and council until the legislature shall, by law, make other provision.”
Also clear is the required separation of powers: “In the government of this
commonwealth, the legislative department shall never exercise the executive and
judicial powers, or either of them; the executive shall never exercise the
legislative and judicial powers, or either of them; 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.”
We are troubled that VoteOnMarriage claims that nullifying
the same-sex “marriages” (performed prior to their amendment’s enactment) would
not be possible, because the U.S. Constitution prohibits ex post facto laws.
This is misleading and untrue. An ex post facto law makes illegal an act that
was legal when committed (or increases the penalties for an infraction after
its commission, or changes the rules of evidence to make conviction easier).
These “marriages” in question have never been legal to begin with; no law was
ever passed to enable same-sex couples to “marry.” While the constitutional
amendment currently before the Legislature (Travaglini-Lees amendment) bans all
same-sex marriages, no one has brought up the ex post facto objection.
As matters of principle, we cannot accept either
VoteOnMarriage’s neglect of the real problem – the judges – or their
compromises with the forces pushing this dangerous “lifestyle” on our society.
Those demanding same-sex “marriage” will never be satisfied
by token offerings from our side, but will rightly see such compromise as
weakness, and as we have learned, encouragement to demand and get more.
Political expediency should not dictate our goals. Our legislators need to be
presented with a choice that is uncompromising and morally right.
We agree that the following actions are necessary in
Massachusetts, for the benefit the whole country, in order to restore
representative government and traditional values:
·
Demand that the Legislature remove the four Supreme Judicial
Court justices responsible for the illegitimate same-sex “marriage” ruling.
·
Continue to alert the public and our elected officials to the
radical homosexual activists’ coercive indoctrination of our children in the
public schools, and demand its cessation.
·
Continue to alert Massachusetts and the entire nation to the
socially destabilizing effects of same-sex “marriage,” as well as the public
health dangers inherent in the acceptance and promotion of the homosexual
“lifestyle.”
VoteOnMarriage has called on us to “put aside our
differences.” This we wish to do, but we cannot put aside our constitutional
and moral principles. We invite their cooperation in achieving our goals listed
above.
++++++++
VoteOnMarriage
campaign
But VoteOnMarriage was good enough for Governor Romney. It
left a huge opening to push through the civil unions or domestic partnership
benefits he had promised his allies in the Log Cabin Republicans. At it did not
call into question the legality of the existing same-sex “marriages” he had
made possible.
At a rare event devoted to addressing the marriage issue on
June 16, 2005, he announced his support for the new proposal. The State House
press conference[221] began not with a
defense of marriage, but with his usual call for “respect and tolerance” of
homosexuality and same-sex couples. He ignores the unconstitutionality of the
Court ruling (and his implementation of it), and transforms the crisis into a
right-to-vote issue.
Governor Romney’s June 16, 2005 press conference at the
State House, announcing his support of the newly proposed VoteOnMarriage
amendment, and criticizing the Travaglini-Lees compromise amendment which he
had previously helped push through the Legislature. He also comes out in favor
of same-sex parenting and legal protections for same-sex couples – domestic
partnerships, or possibly civil unions? (MassResistance photo)
I think it’s important that in any discussion related to
marriage that we should reiterate time and again our view that individuals in
our society should be able to make the choices they want in their lives, and
that we have respect for people’s choices. We have a high degree of respect and
tolerance for people whose lifestyle and choices and orientation is as they may
choose. And therefore it’s important that as we discuss matters of this nature
that we always do so in a way that is respectful of other people’s opinions,
other people’s choices, and other people’s views.
My view is that marriage should be defined as a relationship
between a man and a woman. I also maintain that something so fundamental to our
society as marriage should be decided by the citizens, and not by a court with
a one-justice majority. My preference is that when the issue is decided by the
citizens, that it’s a very clean, straightforward, unambiguous amendment which
they have the opportunity to vote on, rather than something which is confused
by multiple features being combined. And I’m concerned that the amendment
currently under consideration in the legislature is somewhat confused or
muddied by the combination of two things. One is the definition of marriage as
between a man and a woman, which I support. The other is the requirement that
there be civil unions in the Commonwealth, which is a condition I do not
support. For these reasons I am pleased that a new amendment has been brought
forward that’s quite clear, it defines marriage as a relationship between a man
and a woman, and it therefore would provide to the legislature the opportunity
from time to time to provide benefits and rights associated with same-sex
couples as the legislature and the administration felt appropriate.
I therefore support the Coalition for Marriage’s proposed
amendment. I believe it’s superior to the amendment which is currently pending
before the state legislature [Travaglini-Lees], and hope that this amendment
will ultimately will be the one which the citizens have an opportunity to vote
upon.
I am pleased that a new amendment has been brought forward
that’s quite clear, it defines marriage as a relationship between a man and a
woman, and it therefore would provide to the legislature the opportunity from
time to time to provide benefits and rights associated with same-sex couples as
the legislature and the administration felt appropriate.
He now admits that the Travaglini-Lees amendment is
“confused or muddied.” Note that he is “pleased” that the new VoteOnMarriage
proposal leaves the door open to civil unions, or “benefits and rights
associated with same-sex couples.”
Romney goes on to say he is “convinced it will pass here.” But
it never even made it to the voters. He rationalizes his earlier lobbying
for the Travaglini-Lees compromise amendment. This time, even though he
believes VOM “superior” to Travaglini-Lees, he says he will not lobby the
Legislature for the new amendment (and he kept his word). It was
eventually defeated in the Legislature in June 2007. Nevertheless, he continues
to claim that he did everything he could to preserve marriage.
Reporter: Governor, Will you continue, as you have in
the past, to strongly emphasize your opposition to gay marriage as you travel
the country making "non-presidential" campaign appearances?
Gov. Romney: I will be happy to continue to emphasize
my view that marriage should be a relationship between a man and a woman. And I
hope the voters of Massachusetts get the same chance the voters in 11 other
states got last year, and that is the chance to preserve marriage as a
relationship between a man and a woman, which of course passed in all 11 states
where it was taken to the voters. And I'm convinced it will pass here….
I don’t intend to lobby the legislature on the basis of this
amendment. We’ll discuss it I’m sure, but people will vote their conscience. I
think there’ll be a lot of discussion about what’s the right procedural
process, and how does this fit with the other amendment, which amendment’s
going to come up first, do we vote no on this, what does it mean for others.
There’s a procedural process that has to be followed here. The last amendment,
for instance, I thought indeed should be brought forward. I’ll call it the
Travaglini-Lees amendment. I saw it as a procedural opportunity for us if it
were passed as it was, that we would get standing to go before the Supreme
Judicial Court and receive a stay of the court’s ruling. I was openly
frustrated in that effort by the Attorney General’s decision not to take the
case forward to the Supreme Judicial Court. So it didn’t fulfill the purpose I
had hoped for. Regardless, I believe this is a superior amendment, and
therefore I’ll support this amendment. [222]
Romney discounted the new amendment’s failure to deal with
the same-sex marriages that would have taken place by the time the citizens
(might get to) vote on it:
Reporter: Governor, does it concern you at all the
under this amendment there would still be four years’ worth of gay marriages that
would exist in Massachusetts? It doesn’t address the ones that have already
taken place. There would still be legally married gay couples.
Gov. Romney: You know, I think the Family Institute
is wise not to try and dissolve marriages that will have occurred. And I think
that would be a confusing factor that would muddy the issue even further. I
think it’s a wise course to have the amendment take its effect from its passage
forward and not try and change things that have passed. I also recognize that
we will have gay marriages while we are waiting for this amendment to pass. It
would be my preference of course if that were not the case, but I didn’t get a
chance to argue that before the Supreme Judicial Court. I think in matters such
as this however is important enough and is fundamental enough to our society
that we have for our citizens the optimal amendment, and not something which is
confused by multiple issues.[223]
The mantra for the VoteOnMarriage campaign was “Let the
people vote!” And Romney made the most of it, castigating the Court for
“legislating from the bench” and denying a voice to the people. He skillfully
averted (almost) everyone’s eyes from his complicity in illegally implementing
same-sex marriage.
The marriage issue had morphed into protecting our
constitutional “democracy.” The VoteOnMarriage organization tightly
controlled the message for their activists, discouraging independent variations
which might be considered intolerant or inflammatory. Most of their signs were
mass-produced in safe green and white: “Let the People Vote on Marriage!”
Very polite demonstrators for VoteOnMarriage across from
the State House on November 19, 2006, listening to Governor Romney’s speech.
(MassResistance photo)
Massachusetts Family Institute’s E-Alert (July 13, 2005)
stated that one goal of VoteOnMarriage was to:
Counter the argument for civil unions by introducing
“reciprocal beneficiary” legislation to address, in a non-discriminatory way,
certain legitimate needs of people in dependent relationships that are
ineligible for marriage.[224]
So accompanying their proposed amendment, VoteOnMarriage
filed its “Benefits Fairness Act” to guarantee “reciprocal benefits” to any
couple who wanted them – Romney’s “same-sex partner benefits” but offered to
siblings, parent and child, anyone. No sexual relationship required. This
was big government “compassionate conservatism,” Massachusetts style:
“Do we have compassion for the needs of people? Absolutely!
However the natural marriage relationship as it has been defined for millennia
is fundamental, distinct and unique,” said Kris Mineau, spokesman,
VoteOnMarriage.org and president, Massachusetts Family Institute. Our goal is
to protect the rights of all people: children to a mom and a dad; adults
ineligible for marriage to appropriate benefits and protections and the
citizens to a right to vote,” Mineau concluded.[225]
Romney supported this bill, which “would allow consenting
adults to apply for reciprocal benefits, akin to civil unions. The benefits
would flow based on need, not on sexual preference … Same-sex couples would be
eligible for participation.”[226]
MFI’s media director actually had a letter in the Boston
Globe promising that the VoteOnMarriage amendment would not threaten “any
future recognition of (same-sex) couples by any state or local agency.”
VoteOnMarriage adopted conciliatory, Romneyesque language, praising tolerance
and democracy:
Massachusetts citizens are fair and tolerant – respectful of
human differences. The people can be trusted to do what’s right, taking into
account the interests of children and adults. They can weigh the consequences
and make good choices. That’s what a democracy is all about – giving people the
opportunity to determine for themselves basic and fundamental questions.[227]
Typical homosexual protest signs: “Hate is not God’s word!”
and “Gay marriage is God’s will.” Governor Romney and the VoteOnMarriage
campaign tried, but failed, to escape being called “haters” and “bigots” by
the homosexual activists. (MassResistance photo)
The Massachusetts Constitution says the legislators “shall”
vote on a citizens’ amendment. But given that they had to vote in two
consecutive sessions before it could go to the voters, the homosexual activists
had plenty of time to marshal their forces and funding from around the country
to sway the legislators – and plenty of time to come up with every possible
strategy to kill it.
The sexual-radical newspaper Bay Windows published an
“Open letter to Bay State lawmakers” on November 2, 2006, urging them to kill
the amendment in any way possible at the first vote, scheduled for November 9.
Plenty of people … believe that the only honorable way to
deal with this amendment is taking an up-or-down vote on it. We feel
differently: the only honorable way to deal with this amendment is by killing
it. We don’t care how it’s done: Vote it down, adjourn the ConCon
[Constitutional Convention], fail to make a quorum. Whatever. Just make this
thing go away. Lawmakers owe the LGBT community nothing less.
Through organized groups like MassEquality, the Freedom to
Marry Coalition and the Massachusetts Gay and Lesbian Political Caucus, LGBT
people have volunteered for your political campaigns. We have raised close to a
million dollars for you. We have urged our friends to vote for you. Thanks in
no small measure to our efforts, not a single one of you who has supported
marriage equality has lost your seat. And now, two-and-a-half years after we
first started marrying in the Commonwealth, we are sick and tired of our rights
being subjected to public debate every six months. Put an end to this on Nov. 9
by killing the anti-gay marriage amendment….
In the last 100 years, lawmakers have considered nine
amendments to the constitution initiated by citizens’ petitions. Only four were
voted on by lawmakers…. We ask that the [legislators] who have been
coordinating strategy for Nov. 9 … not support a vote on the anti-gay marriage
amendment unless you know with absolute certainty that you are going to win.…[228]
Since they knew they did not have the votes to defeat the
amendment (75% required on a citizens’ petition), 109 of 200 legislators voted
to recess (not officially adjourn) the Constitutional Convention on November 9,
and avoid the constitutionally required vote.[229]
(January 2, 2007 was the last day of that legislative session.) The Bay
Windows editor got what she had called for, thanks to lobbying by Marc
Solomon (MassEquality), Arline Isaacson (Massachusetts Gay and Lesbian
Political Caucus), Norma Shapiro (ACLU), and Lee Swislow and Gary Buseck (both
of GLAD, Gay & Lesbian Advocates & Defenders) – all in the photo below.[230]
The GLBT lobbyists scheming at the State House, November
9, 2006, when they convinced a majority of Legislators to adjourn the
Constitutional Convention without voting on the VoteOnMarriage amendment. Marc
Solomon, director of MassEquality, is in the center rear of photo. A few weeks
later, he would join demonstrators outside the State House yelling “BIGOT” at
Governor Romney during the “Rally for Democracy.” (MassResistance photo)
The Legislature’s delaying tactics in late 2006 – just as
Romney’s term was ending – gave Romney the perfect launching pad for his next
campaign. He was able to hold his “Rally for Democracy” on the State House
steps on November 19 where, “Standing in front of a big American flag like a
corporate, coiffed Gen Patton, Gov. Mitt Romney declared … he is rolling out
his legal big guns to force the gay marriage battle to a vote.”[231]
(See Chapter II, “Romney’s Statements, 2006-2008.”)
To get a sense of the virulence of the marriage “debate” at
this juncture, one should watch video of the pro-same-sex marriage protesters
that day.[232] The director of MassEquality, Marc Solomon, yells “BIGOT, BIGOT” along
with the roaring crowd as they drown out Romney’s speech. Posters (with
mirrors) read, “This is what homophobia looks like,” and “Hatred is ugly. How
do you look today?” Another read, “Can’t you see your actions smack of
fascism?” And, “Separation of Church and HATE.”
These are the same people Romney for decades has been saying
deserve our respect. It is their “tender sentiments” he wants to protect.
As historian Paul Johnson wrote:
Thus we began by attempting to right what was felt an
ancient injustice and we ended with a monster in our midst, powerful and
clamouring, flexing its muscles, threatening, vengeful and vindictive towards
anyone who challenges its outrageous claims, and bent on making fundamental –
and to most of us horrifying – changes to civilized patterns of sexual
behaviour.[233]
In late December 2006, the Supreme Judicial Court actually
backed up Romney in his lawsuit that claimed the Massachusetts Constitution
required the Legislature to vote on the citizens’ petition.[234]
So vote they did, in the very final hours of their session (January 2, 2007).[235]
The vote produced a narrow victory for the VoteOnMarriage side. This was
democracy in action that Romney was demanding. He said after of the vote:
In a democracy, the voice of the people is sovereign. I
congratulate the Legislature and its leadership for upholding the Constitution
and the rule of law.[236]
But the Legislature’s second required vote took place on
June 14, 2007 and killed the amendment. That, too, was democracy in action. The
VoteOnMarriage amendment never made it to the people.
There was always a competition which side of the debate
would get the plum location (right in front of the State House) during the
Constitutional Convention sessions. Here (on June 14, 2007 – the day the
VoteOnMarriage amendement was killed), the homosexual activists grabbed the
photogenic spot. It is highly doubtful these demonstrations – or who stood
where – had any effect on the Legislators’ votes. (MassResistance photo)
“Let the people vote!” And they had: They had voted
for Governor Romney, who had assured them that a constitutional amendment was
the only way to define and preserve traditional marriage, and that the
VoteOnMarriage amendment would surely pass. And the people had voted for
those legislators who voted the amendment down.
The legislative majority – driven by a powerful, wealthy
special interest[237] – ruled, and marriage
died. Had Romney not foreseen this? Or had he?
The effort was doomed to failure one way or another. The
Massachusetts voters would quite likely have defeated it if they had gotten a
chance to vote. Even if approved by the voters, it would have done nothing to
“preserve marriage,” as civil unions would surely have soon followed, and there
would be two classes of “marriages” recognized in Massachusetts (with the
earlier same-sex “marriages” intact). Passage of the federal marriage amendment
has proven just as unrealistic. Furthermore, courts have recently overturned
even amendments to state constitutions, most notably Prop 8 in California.
The principled criticism by Brian Camenker of Article 8
Alliance (MassResistance), along with Ed and Sally Pawlick of Massachusetts
News and Massachusetts Citizens for Marriage (sponsors of the 2002 marriage
amendment), proved prescient. The last realistic chance for an amendment died
with the Pawlick effort, before the Goodridge ruling came down.
There were other demonstrations of the naiveté of the
Massachusetts “pro-family” establishment – i.e., the VoteOnMarriage leadership
team allied with Romney. On April 5, 2006, the Massachusetts Family Institute
(MFI) sent a letter to every legislator distancing itself from Camenker and
Pawlick, because they did not approve of their “rude” tactics[238]
(reminiscent of Romney’s repeated call to show “respect” to all). MFI lobbyist
Evelyn Reilly even gave an interview to the sexual-radical newspaper Bay
Windows about their displeasure with those other pro-family groups:
“We have been hearing from legislators that they have had
some objections to the tactics of some other organizations, and we were being
confused with those other organizations, so we wanted to make sure that those
legislators understood who we were and who we were not and that we were not
part of those tactics that they objected to,” said MFI Director of Public
Policy Evelyn Reilly. When asked what tactics those other groups were using
that were cited by legislators in their complaints she said, “being rude to
legislators or calling them at home during the dinner hour, that sort of
thing.”…
Yet the letter also shows that MFI and MCM [Massachusetts
Citizens for Marriage] were allies in the past, explaining that in 2002 MFI
helped MCM collect signatures on that group’s initiative petition to ban
same-sex marriage [the 2002 Pawlick amendment]. The letter ends with the
emphatic, underlined statement, “MCM, MassNews, Article 8 and MassResistance
are not members of [the VoteOnMarriage.org] coalition. They are not affiliated
with us and we do not work with them.”[239]
The letter to the all legislators was not enough. By January
2007, the Massachusetts Family Institute announced that they would be making an
outreach to the pro-same-sex marriage organizations. Kris
Mineau of MFI called for “dialogue” with the same people who had disrupted
their “Rally for Democracy” in November. He said that with “the leadership of
[MassEquality and homosexual lobbyists], I think we have an excellent
relationship.”[240] This was unreal.
Meanwhile, the head of MassEquality was saying they would “do
whatever is necessary” to defeat the VoteOnMarriage amendment at its second
legislative vote (due later in 2007). From MFI’s email alert:
Massachusetts Family Institute (MFI) announced an initiative
this week that seeks to build mutual respect and dialogue between those who
support and those who oppose same sex marriage in Massachusetts….
MFI and VoteOnMarriage.org – the ballot question committee
seeking to advance the Massachusetts marriage amendment – have endeavored to
advance a campaign that refrains from name calling and does not denigrate
individuals. However, as many political pundits predict, the same sex marriage
debate, much like the abortion debate, will be with us for decades and MFI
sees a need and an opportunity to work with leaders on all sides to promote
justice in the way we discuss our differences.
“The tone and rhetoric around this public policy issue have
escalated to a frenzied level, too often with shouting that does nothing to
promote understanding. Denouncing individuals as bigots does not bring people
with honest differences together. We would like to work with our opponents
to raise the quality of the dialogue,” said Kris Mineau, president,
Massachusetts Family Institute and spokesman, VoteOnMarrige.org…
Even as this initiative begins to take shape, MFI and
VoteOnMarriage.org will continue to urge supporters of the marriage amendment to
be respectful of human differences and always maintain a dialogue that affirms
the dignity of every person.
“I have come to know my political opponent Marc Solomon,
executive director of MassEquality as a gentleman [sic] who has strong personal
convictions,” Mineau added. “I believe that if asked he would come to the table
in good faith to advance meaningful dialogue that his supporters also would
embrace – today begins the process of asking.”[241] [Emphasis
added.]
They were innocents being led to the slaughter.[242]
The GLBT lobby could smell weakness a mile away after such overtures. And they
pulled out all the stops, enrolling Governor Deval Patrick, the Democrat
National Committee, and even House Speaker Nancy Pelosi in their battle.[243]
The “dialogue” turned out to be nothing more than the crushing defeat of the
VoteOnMarriage amendment at its second legislative vote (in June 2007).
Mitt Romney escaped being connected with this new call for
“dialogue,” as his term ended in early January 2007. But MFI and VoteOnMarriage
had internalized his “respectful” style, with predictable results.
On the day the VoteOnMarriage amendment was finally voted
down in the Legislature on June 14, 2007, I wrote on the MassResistance blog:[244]
++++++++
VoteOnMarriage Failed the People
The VoteOnMarriage amendment went down in flames today [June
14, 2007], with an even more appalling result than anyone could have imagined.
Prayers without compromising the truth may work. Prayers when the truth is
compromised cannot.
VoteOnMarriage’s campaign failed because the debate was
boiled down to “letting the people vote” and ensuring “children have both a
mother and a father.” But it left out the important truth about homosexual
“marriage”: It’s based on immoral and unhealthy sexual perversions. Morality
and public health needed to be part of the debate.
But VoteOnMarriage (and its prime actor, Massachusetts
Family Institute) never spoke about these issues. Why didn’t they say plainly
that disordered sexuality cannot become an accepted basis for “marriage”? And
after compromising with Mitt Romney, they could hardly address preserving the
integrity of our constitution, and the common accepted meaning of the words
therein.
VoteOnMarriage depleted our side’s energy and financial
resources in pursuit of a terribly flawed amendment. We’ve warned about their
failing strategy (“Be polite! Dialogue with the other side!”) and compromised
amendment wording for two years now. We said: “Don’t feed the bears! They’ll
just come back for more and more. They’ll smell your weakness. And they’ll eat
you alive.”
But VoteOnMarriage said they had a good relationship with
MassEquality. They spoke to the homosexual newspaper Bay Windows, badmouthed
MassResistance to them and to people on Beacon Hill (including the last several
governors) and to pro-family conservatives around the nation. They rigidly
controlled what people said in their demonstrations, including their signs. It
was a top-down movement, no real grassroots sentiments allowed. Time and again,
as we walked through the VoteOnMarriage demonstrators, we would hear
individuals corrected if they stepped out of line, said something
“inappropriate” or with a little too much emotion.
Their strategy of endless compromise with evil, their
attempted appeasement of those destroying the minds of children, and their
puerile censorship of pro-family rhetoric has no origin in the Old or New
Testament, and anyone who thinks otherwise has subconsciously blacked out the
most powerful parts of the Holy Scriptures.
We hear from an MFI insider that they plan to regroup! How
do you regroup with failed leadership, and a failed vision? Just a week ago, we
heard that another MFI insider said the homosexual lobby was tiring out! They
are detached from reality. They don’t understand the foe we’re facing.
When leaders fail to achieve their goal, they should be
fired. VoteOnMarriage and the Massachusetts Family Institute have been
discredited, they have failed the faithful pro-family people of Massachusetts.
So we say to them: Don’t ask for another penny, another drop of our blood and
sweat.
++++++++
Romney
was complicit in this failure
In summary, Romney’s grand strategy to save marriage by
passing a constitutional amendment was a grand failure. He had four
opportunities to help pass an amendment, but struck out all four times:
·
First, Romney failed to support – and failed to insist the
Legislature vote on – the 2002 Pawlick amendment, which would have
defined marriage and banned civil unions. This was the best (and likely only)
chance for passing an amendment, requiring only 25% approval in the Legislature
as a citizens’ referendum. Since the first vote would have come before the Goodridge
ruling, that would have given momentum to the pro-family side.
·
Second, Romney professed support for the MFI-Travis-MA&PA
amendment (according to MFI’s president), but did not stand against its
dilution. MA&PA was sacrificed during the legislative wrangling in late
2003-early 2004 – on Romney’s altar of “partnership benefits” or “civil
unions.”
·
Third, Romney’s lobbying ensured preliminary passage of the
“designed to fail” Travaglini-Lees compromise amendment, simultaneously
defining marriage as one-man/one-woman and writing equivalent civil unions into
the Constitution. It was killed on its second legislative vote in September
2005. It never went to the voters.
·
Fourth, Romney supported the weak (too little, too late)
VoteOnMarriage amendment. By the time it came to its two required legislative
votes, the homosexual lobby had had plenty of time to marshal its forces,
striking the final blow in June 2007. It never went to the voters.
So – was amending the Constitution the solution for a rogue
judiciary? Was it the only way to protect marriage? How smart (or sincere) was
Romney’s grand strategy?
In the immediate aftermath of the first legislative approval
of VoteOnMarriage (January 2007), Romney was able to play its passage as a
great victory and proof of his commitment to pro-family values and
constitutional government. Boston Globe columnist Joan Venocchi (not an
admirer) even said:
As he leaves office, Romney gets all the credit for forcing
Bay State legislators to vote on whether to advance a constitutional amendment
defining marriage… And he did it in a way conservatives must consider
delicious: He petitioned the Supreme Judicial Court, the same judicial body
which sanctioned same-sex marriage as a civil right … And with this dramatic
strike against same-sex marriage in Massachusetts, he has fresh conservative
bona fides.[245]
Venocchi concludes that Romney’s biggest challenge after
that January 2007 “victory” was showing he had a “political soul.” She asked:
“Does he believe in anything but his own political ambition? Beyond the
conservative résumé he forged on the back of Massachusetts’ gay population, is
there a human being with deeply held convictions?”[246]
The national “conservative” establishment needs to do some
soul-searching on the issue of marriage amendments, and be honest about all the
citizens’ energy and resources that have been wasted. Massachusetts should serve
as a cautionary tale. Likewise, the effort for a federal marriage
amendment went nowhere fast. And what of the California Proposition 8 marriage
amendment overturned by an activist judge? When will equivalent effort be
directed to impeachment or removal of activist judges who have been given a
pass for so long? So far, only the voters of Iowa have had the resolve to pull
that off.
Governor Romney’s kickoff for his campaign for
the 2008 Republican Presidential nomination: His “Rally for Democracy” in front
of the State House, November 19, 2006. (MassResistance photo)
The
Bill of Address to remove the four Massachusetts Supreme Court Justices: Why
did Romney not support this effort?
The Judiciary is the problem, not the
Constitution
Bad judges may still try to block amendments to a
constitution once the people have voted them, as proven by the recent
Proposition 8 fiasco in California, or the overturning of the Nebraska marriage
amendment in 2005. The 2010 election in Iowa demonstrated the proper response
to judicial overreach: Remove the errant judges.[247]
In Massachusetts, Brian Camenker of Article 8 Alliance
(MassResistance) made the argument against the amendment strategy, and for the
removal of rogue judges instead. WorldNetDaily reported:
[April 24, 2004] The Massachusetts legislature held a
constitutional convention earlier this year to craft an amendment to the state
constitution that defines marriage as only between a man and a woman but allows
Vermont-style civil unions, conferring virtually all the same rights and benefits
of marriage.
Camenker, noting it could not be enacted until 2006, insists
the problem is not the constitution but a judiciary out of control.
“The constitution has a remedy for judges that do not
properly interpret law, the bill of address [their removal from office],” he
said. “The idea of having to amend the constitution every time there is a bad
ruling – you’ll be amending it all the time.”
Camenker chastises pro-family groups for focusing attention
on the Federal Marriage Amendment, which he thinks also will fail.
“The national Constitution doesn’t need amending; the
problem is because we’ve allowed ourselves to lose control of our own
judiciary,” he said.
He called the proposed state constitutional amendment
[Travaglini-Lees compromise] one of the most bizarre pieces of legislation he’s
seen, as it insists on “preserving the unique character and identity of
marriage and then creates in the next sentence a duplicate of marriage [civil
unions].”
“Many of the pro-family groups are willing to make that
compromise to save the word marriage, which is a deadly compromise because in a
few years you won’t have either,” he said.[248]
Brian Camenker speaks to the press at the State House on
January 9, 2004, announcing the founding of Article 8 Alliance, the grassroots
effort to remove the “gay marriage” judges. (MassResistance photo)
Camenker led the grassroots effort to remove the four errant
judges, beginning with his press conference at the State House on January 9,
2004.[249] Aside from Attorney J.
Edward Pawlick, publisher and editor of Massachusetts News, the local
media did its best to ignore or ridicule the effort.
Since judges in Massachusetts are appointed (not elected),
they would have to be removed by a majority vote of the Legislature and the
eight-member Governor’s Council, with the Governor’s approval: the “Bill of
Address” process outlined in the Massachusetts Constitution. But many –
including Governor Romney and the legislative leadership – chose to ignore the
Bill of Address possibility. Why? The stated reason was that it was a
“long-shot” (Boston Globe[250]), unlikely to succeed.
That is a self-fulfilling prophecy, especially if the Governor – then in the
national spotlight over the Goodridge ruling, repeatedly railing against
“activist judges” – refused to pick up on it. While Governor Romney talked of
reining in judicial activism, he refused to walk that walk.
Note that two earlier amendment proposals – MA&PA and
Travaglini-Lees – were legislative initiatives (not citizens’ referenda)
requiring passage by a majority of legislators twice before going
to the voters (after a delay of several years). But the Bill of Address
required just one simple majority vote in the Legislature, plus approval by the
Governor’s Council and Governor, did not have to go on to the voters, and could
happen without delay.
If those two amendments were seen as plausible by Romney,
the legislators, and media commentators, why not the Bill of Address? The
Governor and Legislature clearly wanted to avoid grappling with the
constitutional issues.
As we have seen, Governor Romney’s effort to pass a
constitutional amendment was anything but successful. Constitutional law
professor Dwight Duncan said in 2006:
Neither the U.S. Constitution, at the relevant times it was
amended, nor the Massachusetts Constitution, not amended in this regard since
it was enacted 225 years ago, say anything about either abortion or gay
marriage … I think that John Adams (and particularly Abigail) would be
surprised to learn that a majority of one discovered a right to gay marriage in
words he had written so many years ago. It is significant that neither New York
nor Washington state, in interpreting similar state constitutional provisions,
found the right to gay marriage. The conclusion is inescapable: courts have
usurped the people’s right to govern themselves….
It really shouldn’t take a constitutional amendment to undo
these unconstitutional and unlawful decisions. Judges who insist on legislating
their policy preferences from the bench should retire or be retired and
replaced by judges who follow the constitution and the laws. … After all, the
very point of having a written constitution is to subject rulers, including
judges, to the rule of law. If not, why bother having a constitution?[251]
So, along with efforts to encourage Governor Romney to issue
an Executive Order to block issuance of same-sex marriage licenses, Camenker
urged the legislators and Governor to remove the four judges. The Massachusetts
Constitution states that “the governor, with consent of the [Governor’s]
council, may remove [judges] upon the address of both houses of the
legislature.” Camenker made the argument in the weeks immediately following the
SJC ruling:
Brian Camenker, head of the Massachusetts-based Parents’
Rights Coalition [later Article 8 Alliance-MassResistance], said conservatives
plan to direct all of their energy toward convincing lawmakers to ignore the
court and pass no new civil union or gay marriage laws, a tack most acknowledge
is an uphill battle at best.
“I think the wrath of the people in their districts is what
every one of these legislators has to hear and they have to hear it strongly,”
Camenker said. “We need to take charge of our government again.”
Conservative groups admit that they disagree amongst
themselves about whether to focus on constitutional changes, marriage versus
civil unions or other approaches to getting the best outcome for their
supporters.
“The ‘Focus on Family’ approach is, let’s work with the
legislation, finesse it, make deals, get allies together,” Camenker said. “Our
approach is, this is madness, and we expect every legislator to do the right
thing.”[252]
Article 8 Alliance demonstrators outside Supreme
Judicial Court (in its temporary location) in February 2004. Signs read: “Moral
values are not hate speech” – “SJC4 = Tyrants” – “Stop Judicial Tyranny” –
“Dump Marshall” – “Marshall Not Impartial” – “Ruling = Null + Void” – “Remove
the Judges.” Historic King’s Chapel (which celebrates “gay marriages”) is in
the background. (MassResistance photo)
Camenker explained that the Massachusetts Constitution said,
“the people have a right … to cause their public officer to return to private
life” in cases of “bad behavior” (here, violation of their oath to uphold the
constitution). He pointed out that a legislative recall of the four judges
through the Bill of Address:
… makes a lot more sense than constitutional amendments that
have been tying the State House in knots. It’s the intended remedy when
justices do not properly interpret the law. We cannot credibly call ourselves a
democracy when our most basic laws can be undone by four unelected, appointed
officials.[253]
The Boston Globe did its best to ridicule the idea of
removing the judges through the Bill of Address. From April 2004:
Richard C. Van Nostrand, president of the Massachusetts Bar
Association, said that the bill of address route has been invoked rarely for a
reason. “We don’t want to go down a path that would cause judges to fear
removal from their position for making unpopular decisions,” Nostrand said….
Arline Isaacson, cochairwoman of the Massachusetts Gay and
Lesbian Political Caucus, dismissed the bill as “absolute insanity.”
“I can understand if our opponents don’t like the decision,
but our opponents have no rational basis for removing any of these judges,”
Isaacson said. “They were clearly doing their job and, quite frankly, doing it
well. Their job, after all, is to determine what’s constitutional or not. Our
opponents are acting like sore losers.”[254]
But attorney and constitutional law professor Dwight Duncan
saw the Bill of Address as perfectly reasonable, writing in the Boston Globe
in April 2004:
There are two new dramatic moves affecting the SJC: one
legal, the other political. The legal one is [Romney’s] petition to stay
Goodridge [which failed]… The other dramatic move is the political one. Rep.
Emile Goguen has announced that he is introducing a bill of address to remove
the four justices who voted in Goodridge to radically reconfigure marriage.
Interestingly, our state constitution allows for the removal of judges without
requiring impeachment, which entails the need of an impeachable offense and
trial. All that’s required is a majority vote of both houses and the
concurrence of the Governor and Council. John Adams, in his boundless wisdom,
recognized the danger of judicial tyranny, and inserted this provision into the
constitution as a safeguard to ensure that judicial officers be accountable to
the people.
When judges violate the social contract, and usurp the
authority of the legislature and the executive, then society has greater
interests, for the sake of the common good, than assuring their continued job
security. In this case, the SJC asserted a jurisdiction that is expressly
granted by the constitution to the political branches. The Constitution’s
Declaration of Rights ends with the mandate that the “judicial shall never
exercise the legislative and executive powers.” Art. XXX. And if it does so
anyway, what then? Rep. Goguen reminds us that there is political recourse.[255]
It seems Professor Duncan viewed the Bill of Address as no
more “long-shot” than the Governor’s petition to argue for a stay of Goodridge.
But he clearly understood that legislators’ and attorneys’ concern for their
“job security” would affect whether their support would be forthcoming. It’s
unfortunate but not surprising that House Speaker Thomas M. Finneran and Senate
President Robert E. Travaglini avoided public comment on the Bill of Address.
They claimed to be too busy with the budget.[256]
The Boston Globe noted the Governor’s dismissal of
the effort:
Governor Mitt Romney, who filed a bill last week
seeking special authority to ask the SJC to stay its ruling, has refused to
meet with Camenker’s group. At a recent press conference, Romney said he does
not support the measure. Romney also told reporters that if his own bill
[allowing him to appeal to the Court for a stay] failed to win passage in the
Legislature, then gay marriages would become legal on May 17.[257]
But the Globe did not press Romney on why he
opposed removing the judges.
Of course, the issue with the same-sex marriage ruling was
not just that it was “unpopular” but that it was unconstitutional.
According to the homosexual lobby, such concerns are “insane” and irrational –
and possibly Governor Romney agreed. He was set on his long-shot[258]
(or sham?) course of appealing for a stay – at the same time he was preparing
his agencies to implement same-sex marriage.
Romney refused to meet with Camenker’s
group
Romney “refused to meet with Camenker’s group.” But his
office was happy to inform Bay Windows (in April 2004) that Romney would
not support the Bill of Address:
[Romney spokeswoman Shawn] Feddeman said the governor is
opposed to the effort, and it seems unlikely he would remove the justices if
the [Article 8] Alliance passes its legislation.
“We are focused on the legislation the governor filed last
week authorizing him to ask the SJC for a stay of their judgment until the
constitutional amendment process is complete,” Feddeman wrote in an e-mail to
Bay Windows.
Romney’s opposition to the bill of address does not surprise
Camenker.
“Romney has a long history of basically caving into the gay
movement, so a statement like that doesn’t surprise me,” said Camenker. He said
he would “wait and see” if the governor would change his mind if the bill
advances in the Legislature.
[Legislative sponsor Rep. Emile] Goguen said if he rallies
enough support for the bill, the governor will come on board.
“He says he’s not [in favor of the bill], but when he sees
the momentum he’ll go along with it,” said Goguen.[259]
Constitutional basis of the Bill of
Address effort
Camenker explained the constitutional basis of the Bill of
Address effort in a pamphlet in early 2004.[260] These constitutional
arguments were apparently dismissed by the Governor – along with the homosexual
activists and their media allies – as nonsense:
++++++++
Yes – Remove the Four
Rogue Judges!
By Brian Camenker, Article 8 Alliance
The Massachusetts Constitution, written by John Adams in 1780,
anticipated that judicial tyranny could happen and become a threat to society.
I
n fact, our Founding Fathers (particularly Jefferson)
repeatedly warned about this in their writings.
Thus, our constitution already has the means for dealing
with today’s terrible situation – Supreme Judicial Court justices who have
ignored the law and imposed their own views on the citizens. The intended
remedy is not to amend the constitution whenever this happens. The remedy is to
remove judges from office who violate their oath and oppress the people.
John Adams purposely included in the Massachusetts
Constitution a procedure known as a bill of address. The Legislature can remove
renegade judges from office by a simple majority in both legislative chambers
with the concurrence of the governor and governor’s council. This is different
from an impeachment. An impeachment implies a trial for specific crimes. A bill
of address is used for what is termed “bad behavior.” Under the bill of
address, the legislative and executive branches need not specify any grounds of
removal.
Article 8 of the Declaration of Rights uses the term
“oppressors” and states the right of the people to remove their public
officials: “In order to prevent those, who are vested with authority, from becoming
oppressors, the people have a right, at such periods and in such manner as they
shall establish by their frame of government, to cause their public officers to
return to private life; and to fill up vacant places by certain and regular
elections and appointments.”
Article 29 of the Declaration of Rights defines “bad
behavior” of judges: “It is essential to the preservation of the rights of
every individual, his life, liberty, property, and character, that there be
an impartial interpretation of the laws, and administration of justice...
It is, therefore, not only the best policy, but for the security of the rights
of the people, and of every citizen, that the judges of the supreme judicial
court should hold their offices as long as they behave themselves well.”
Article 30 of the Declaration of Rights further
states that the judiciary may not invent their own laws – only the Legislature
can make laws: “In the government of this commonwealth . . . 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.”
Article 1 of Chapter 3 of Section the Second outlines
the bill of address removal process for all judicial officers: “All judicial
officers, duly appointed, commissioned and sworn, shall hold their offices
during good behavior,... the governor, with the consent of the council, may
remove them upon the address of both houses of the legislature.”
To complete the process of officially nullifying the ruling,
the Governor and Legislature must enact legislation (or a direct executive
order) reiterating the centuries-old laws of marriage in this Commonwealth in
direct defiance of this ruling – unambiguously declaring it null and void and
prohibiting its execution. The people of Massachusetts must have their
government back.
This is what must be done. And it must be done before May
17. If our Legislature and Executive Branch don’t have the political courage to
do this, it is up to us – the people – to use all the powers of
persuasion available to us. That is why the Article 8 Alliance organization
was formed. This can be done, and it must be done! [Emphasis in
original.]
++++++++
Camenker – along with many citizens – was frustrated by the
strategy of the “establishment” conservatives (including powerful national
groups and legal foundations[261]) who insisted on a
constitutional amendment, while totally ignoring the possibility of removing
the judges. Endless arguments over the details of proposed amendments and
millions of dollars pushing the flawed proposals went nowhere in the end.
Undaunted, Sally Pawlick (of Massachusetts Citizens for
Marriage) found a brave legislative sponsor, Representative Emile Goguen, who
got the Bill of Address process rolling in April 2004. Unfortunately, it was by
then a “late-filed” bill and was killed in the Rules Committee (run by House
Speaker Tom Finneran’s faithful deputy, Representative Angelo Scaccia).[262]
Article 8 Alliance re-filed it in the next legislative session (beginning
January 2005) with more sponsors, but again it was killed. This time, it was
filed in the Judiciary Committee which did everything it could to keep quiet
its hearing on the bill (and others on same-sex marriage), essentially denying
proponents time to arrange expert and legislator testimony (or press coverage).[263]
Brian Camenker at Article 8 Alliance Press
Conference at State House on April 22, 2004, calling for the Legislature and
Governor to pass a Bill of Address to remove the four Supreme Judicial Court
justices, and revealing Chief Justice Marshall’s ethical violations. Plenty of
“mainstream media” reporters were present (including Boston Globe, Boston
Herald, major television stations), but no coverage appeared in their
outlets. (MassResistance photo)
No support ever came from the Governor’s
office for the Bill of Address or other bills on marriage
No support ever came from the Governor’s office for the Bill
of Address – or for the other bills filed by Article 8 Alliance concerning
same-sex marriage – during the 2005-2006 session. So much for Romney’s tough
talk about standing up to judicial activism and strengthening state statutes to
protect marriage.
The Legislature still had not changed the marriage
statutes in response to the Court’s Goodridge ruling. So the issue
of the statute wording was very much alive – at least for citizens who believed
in the rule of law. (Recall Professor Hadley Arkes’s point that it was not too
late for Romney to act after May 17, 2004.) The homosexual lobby had even filed
a bill (in the 2005-2006 session; and every session since until 2011) to
include same-sex couples in the marriage statute, but that too was shelved.
Were Romney and his allies in the Legislature colluding to keep this issue
quiet? After all, the truth was that same-sex marriages were still illegal, and
the Governor had no enabling statute authorizing his change in the marriage
licenses. (All he had were sloppy Town Clerk training slides from some
unidentified source, posted on GLAD’s web site. See Chapter V.)
Chief Justice Margaret Marshall: Ethically Challenged
How could the Governor choose to ignore the Bill of Address?
It was not only a case of the four judges violating the Constitution in their Goodridge
ruling. In addition, Chief Justice Margaret Marshall was guilty of ethical
violations (according to the Judiciary’s own Code of Judicial Conduct)[264]
and the Massachusetts Constitution’s requirement “that there be an impartial
interpretation of the laws.”
Marshall had exposed her clear bias in the years before the Goodridge
ruling, most notably by appearing as keynote speaker at a GLBT legal advocacy
group’s annual dinner in 1999 where she advocated for their causes – making a
travesty of the requirement that judges must be impartial.
Chief Justice Margaret Marshall was keynote speaker at
the annual banquet for the Massachusetts Lesbian & Gay Bar Association in
1999, advocating an extension of rights for homosexuals. (Photo: MLGBA Summer
1999 online newsletter)
The homosexual newspaper Bay Windows reported on
Marshall’s comments at the 1999 Massachusetts Lesbian & Gay Bar
Association’s annual dinner:
But the highlight of the evening was the keynote address
given by Judge Margaret Marshall …
Marshall, a South African native who is now a U.S. citizen,
experienced first hand the horrors of apartheid. She noted with satisfaction,
however, that South Africa, which has come so far from those dark times, is now
the only nation in the world to have civil rights based on sexual
orientation (and on being transgender, by the way) written in the country’s
Constitution.
Based on those constitutional protections, she noted, South
Africa’s highest court in October of last year issued a stunning decision
striking down horrific apartheid-era laws that not only banned homosexual
sodomy between consenting adults, but which also specifically allowed the
police to shoot anyone suspected of such “crimes” who was resisting arrest….
Marshall noted, South Africa is now leading the way for the
rest of the world….
And while it’s a cinch that we will not any time soon have
protections for gays and lesbians written into the U.S. or Massachusetts
constitutions. But in this state, which has the longest continually operating
Constitution in the world, Marshall noted, there is no reason to expect that
we cannot lead the way in making sure those rights are secured even absent any
specific constitutional mentions. Right now all of us must work to protect
ourselves from legislative and executive excesses.[265] [Emphasis added.]
Article 8 Alliance’s press conference with Representative
Goguen at the State House (April 22, 2004) discussed Marshall’s GLBT advocacy,
and the Bill of Address to remove the four “gay marriage” judges. Reporters
received packets with excerpts from the Code of Judicial Conduct, a summary of
Marshall’s remarks and a photo of her at the MLGBA event. But while Boston
Globe, Boston Herald and network TV reporters were there, none ran a
story on the Chief Justice.[266] Robert Bluey of CNS
News reported in June 2004:
[State Representative Emile] Goguen accused Marshall of
“aiding and abetting” Mary L. Bonauto, the attorney who argued the same-sex
marriage case for the Gay and Lesbian Advocates and Defenders. Marshall also
did nothing when a lower court judge [Suzanne DelVecchio] spoke favorably about
same-sex marriage, Goguen charged.
The criticism comes a little more than a month after CNSNews.com
reported about a speech Marshall gave to the Massachusetts Lesbian and Gay Bar
Association in 1999. She was an associate justice at the time. During that
speech, Marshall praised her native South Africa’s embrace of sexual
orientation protections and the “growing body of gay-friendly international
jurisprudence,” according to a recap of the event from the Massachusetts
Lesbian and Gay Bar Association.
Goguen said Marshall should have disqualified herself from
the same-sex marriage case as a result of her 1999 appearance before the bar
association. Oral arguments in the case, Goodridge v. Department of Public
Health, were held March 4, 2003. It was decided Nov. 18, 2003.
At the time of Marshall’s speech, the Massachusetts Code of
Judicial Conduct stated, “A judge should disqualify himself in a proceeding in
which his impartiality might reasonably be questioned.” The code was slightly
modified last year to change “should” to “shall.”
“After Justice Marshall gave the keynote address at the
Massachusetts Lesbian and Gay Bar Association on May 7, 1999, not only ‘might’
her impartiality be questioned in the Goodridge case, it would have to be
questioned by any impartial person,” Goguen wrote. “It was not a secret that
Judge Marshall desired that such a case be filed in the Massachusetts courts.”…
In addition to Marshall’s 1999 speech before the
Massachusetts Lesbian and Gay Bar Association, Goguen said it was improper for
Marshall to attend the annual gala of the Women’s Bar Association, at which
Bonauto was honored in 2000.
“Judges should not attend political events, particularly
when the honoree was a partisan such as Mary Bonauto, who appeared regularly in
Massachusetts courts,” Goguen wrote.
Goguen also scolded Marshall for not censuring or
disciplining Suzanne V. DelVecchio, chief justice of the Massachusetts Superior
Court. The Goodridge case originated in DelVecchio’s court, and according to
Goguen, she traveled in the same circles as homosexual activists like Bonauto.[267] [Emphasis
added.]
Margaret Marshall impersonator reacts in horror at the
absurd thought. At one of the many demonstrations by Article 8 Alliance, this
one in front of Buckman Tavern in Lexington on the one-year anniversary of the
Goodridge ruling - November 18, 2004. (MassResistance photo)
Romney: “I’m not looking to recall the
judges.”
Governor Romney said at his June 2005 press conference (and
also the previous April) that he did not support the effort to remove the four
SJC judges who ruled for same-sex marriage. While he spoke of “separation of
powers,” he didn’t mention “checks and balances.” Why did he not care to check
the errant Court? He gave no reason, but just brought everyone back to his
failing amendment strategy:
Reporter: Governor, what about the broader issue of
judicial activism? Do you support or oppose the Bill of Address movement to
recall the judges?
Romney: I’m not looking to recall the judges. I do
however believe that justices should not legislate from the bench any more than
legislators should adjudicate from the legislature. And I believe that there
should be a separation of powers and responsibilities, and I believe that in
this case that the Supreme Judicial Court engaged in legislating. I believe it
was an improper decision on their part, and that’s why I believe that
ultimately the citizens should have the opportunity to make this choice, or
their elected representatives.[268]
Article 8 Alliance demonstration in Lexington, Mass. in
July 2004 during a special event held in honor of the Democrat National
Convention (held in Boston that year). Police put demonstrators in a special “protest
pen.” (MassResitance photo)
In May 2004, at least Dr. Alan Keyes understood the
seriousness of the situation, wrote a column, and ran radio ads urging people
around the country to tell “Gov. Mitt Romney to push for removal of the four
liberal judges who imposed same-sex marriage.”[269]
John Haskins (then with Parents’ Rights Coalition, parent group of Article 8
Alliance) wrote in WorldNetDaily (April 11, 2005)[270]
that the failure of the Governor and Legislature to check the Court signaled
the end of constitutional government in Massachusetts:
Chief Justice Margaret Marshall is now running the state,
when she’s not fund-raising for homosexual organizations and otherwise mocking
rules about judicial neutrality. Feeling powerless as governor, Romney is
wondering if he can be our next president.
The Article 8 Alliance, which initiated the move to fire the
four justices is scrambling to arrange testimony [for the pending Judiciary
Committee hearing on the Bill of Address] by constitutional experts at the last
minute – or to get it postponed. …
The Bill of Address [to remove the judges] is really
important. It is time for lawyers, law professors, elected officials and judges
– active and retired – to weigh in and make it clear that constitutions still
outrank judges. It’s time for legislatures and governors in other states to
issue resolutions and proclamations that the collapse of constitutional
self-government in Massachusetts is a dire threat to the 49 other states and to
the nation. That rule of law is not rule by lawyers.
Gov. Romney and the Legislature need to be made the
laughingstock of the nation for not standing up to the self-appointed politburo
that has reduced them to mindless puppets. We need all the help we can get here
because removing judges is now a do-or-die effort for constitutional
self-government, and not only for Massachusetts.
For the entire country, a great deal depends on our scaring
the Massachusetts political establishment back into at least faintly
constitutional parameters. If we fail to remove the four outlaw justices,
Americans may well look back at the Massachusetts homosexual marriage ruling as
“the one that ate the rule of law,” to borrow a recent phrase from U.S. Supreme
Court Justice Antonin Scalia.
The Bill of Address movement here is not a secondary news
story of passing interest and responsible journalists, pro-family organizations
and constitutionalists of all stripes – even libertarians! – should not treat
it as such. It is very destructive that so much of the “conservative” press has
treated local events like this one as insignificant largely because the
mainstream press ignores them.
But Governor Romney, for reasons known only to himself,
decided to sit this one out. While he said he did not think it was a good plan
to remove the judges, he never said why. And no “conservative” pundit
or “objective” reporter pressed him to explain.
The Bill of Address was killed in the Judiciary Committee
that session. And Mitt Romney moved on to his campaign for the Republican
Presidential nomination.
Article 8 Alliance sign at the Democrat National
Convention “Protest Pen” in Boston, July 2004, protesting Massachusetts Chief
Justice Margaret Marshall. The Massachusetts Constitution, written by John
Adams, specifically states: “It is essential to the preservation of the
rights of every individual, his life, liberty, property, and character, that
there be an impartial interpretation of the laws, and administration of justice...
It is, therefore, not only the best policy, but for the security of the rights
of the people, and of every citizen, that the judges of the supreme judicial court
should hold their offices as long as they behave themselves well.” (MassResistance
photo)
Chapter VII
My Letter from Mitt
Romney’s April 2004 Letter
Reveals Weak, Unprincipled Leadership during the Constitutional Crisis
[This was originally a three-part series published December 18-22, 2007 on my
MassResistance blog during Mitt Romney’s campaign for the Republican
Presidential nomination. It was an outpouring of frustration over the neglect
of this crucial history by national conservative groups and the media. I am
republishing it here slightly altered, eliminating some of the quick-post
blogging style. This was written before I knew of Romney’s Chief Legal Counsel
Daniel Winslow’s alliance with the sexual-radical lobbyists.[271]]
Those of us living through the unparalleled constitutional
crisis in Massachusetts – beginning with the Supreme Judicial Court’s “gay
marriage” ruling in November 2003, through the beginning of the phony
“marriages” in May 2004, and beyond – experienced Mitt Romney’s duplicity and
failure as a leader on a visceral level. I regret that I voted for him in 2002
and helped his Senate campaign in my home town in 1994. I feel personally
betrayed by a man who surrendered our Constitution, our rule of law, our public
health, our traditional values, our schools, and our children to a very
dangerous “special interest.”
The letter I received from Governor Mitt Romney[272]
in April 2004 (just one month before the homosexual “marriages” began) reveals
him to be either a dangerous dissembler, or a disengaged manager with no
understanding of the Constitution he swore to uphold. Either way, this man
should not be President.
Background and constitutional context
In April 2004, just one month before homosexual “marriages”
were to begin in Massachusetts by order of Governor Mitt Romney, he sent an
appalling letter to concerned constituents.[273] (The letter is transcribed below.)
Along with many others, I had written him pleading that he
issue an Executive Order to his agencies not to allow homosexual “marriages” to
go forward, and asking him to support the effort to remove the four errant
judges behind the Goodridge ruling. I pointed out that there was no new
“law” for him to uphold!
This empty, boilerplate response makes one question how this
man who would be president “thinks” about the most profoundly illegitimate
court ruling since Roe v. Wade. His feeble yet condescending response
insults his constituents while failing to address their concerns. Romney seems
like a sleepwalker traversing a minefield in the letter.
How serious is Mitt Romney about reining in bad judges,
upholding constitutions, and blocking homosexual “marriage”? His record in
Massachusetts is revealing, as much through his silence and inaction as through
his sparse and mystifying actions. In the end, he totally failed to lead as a
conservative on these issues, but rather was complicit in foisting on our state
a most radical, destructive social experiment – while pretending to defend the
natural family.
Mitt Romney called for one of his own Massachusetts judge
appointees to resign[274] because she released a
convicted murderer who went on to murder again. But when Romney had the chance –
and constitutional duty – to call for the dismissal of four rogue
Massachusetts Supreme Court justices who ruled homosexual “marriage” was
protected by the Massachusetts Constitution, he did nothing! He refused to join
the effort to remove the judges by constitutional means (the Bill of Address,
supported by 25 legislators), and never really commented on the effort (beyond
saying simply that he did not agree with it).[275]
And while the Constitution required the Governor to
implement only laws passed by the Legislature, Romney chose to enforce a
pseudo-law pronounced by four unelected judges. (The Massachusetts Legislature
in 2011 has still not changed the marriage statute.[276])
Clearly, Romney violated the Massachusetts Constitution
when he started homosexual “marriages” here.[277] So can he be trusted
with the United States Constitution? Can his complaints about judicial activism
be sincere? Can anything he says about his commitment to preserve marriage be
believed?
Clauses of the
Massachusetts Constitution Gov. Romney failed to uphold
when he implemented homosexual “marriage”
… the people of this commonwealth are not controllable by
any other laws than those to which their constitutional representative body
have given their consent. (PART I, Article X)
In the government of this commonwealth, the legislative
department shall never exercise the executive and judicial powers, or either of
them: the executive shall never exercise the legislative and judicial powers,
or either of them: 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 I, Article XXX)
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. (PART I, Article XX) [i.e., one
man/one woman marriage statutes are still in effect, since they have not been
suspended by the Legislature; the Court and Governor Romney had no power to
act.]
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… (PART II, Article VI.)
The Goodridge majority opinion even stated they were
not suspending the marriage statute: “Here, no one argues that striking down
the marriage laws is an appropriate form of relief.” In fact, they admitted
that under the marriage statute, Chapter 207 of the Massachusetts General Laws,
homosexual “marriage” is illegal (contrary to the existing statute): “We
conclude, as did the judge, that M.G.L. c. 207 may not be construed to permit
same-sex couples to marry.”
While the Court advised the Legislature to change the
marriage statute to conform with their opinion, nowhere did they advise (or
seem to expect) the Governor to act unilaterally in response to their opinion.
The Court even acknowledged in 2002 that they do not have the power to order
another branch to act.[278]
Analysis
of letter from Governor Romney
In early 2004, many citizens[279]
wrote to Governor Romney asking him to:
1. defy
the Court ruling, as it is only an illegitimate opinion and there is no new law
for him to enforce;
2. issue
an Executive Order barring issuance of homosexual “marriage” licenses starting
May 17, 2004; and
3. support
the Bill of Address to remove the four errant Judges.
And here is the Governor’s form-letter response, dated April
15, 2004:
++++++++
The Commonwealth of Massachusetts
Executive Department
State House Boston 02133
(617) 725-4000
Mitt Romney
Governor
Kerry Healey
Lieutenant Governor
April
15, 2004
Dear Mr. and Mrs. Contrada:
Thank you for your letter regarding same-sex marriage. Over
the past several months, many people have taken the time to contact my office
with their thoughts and concerns on this issue. I am happy to have this
opportunity to respond.
Recently, the State Legislature met in a rare joint session
and passed an amendment to the Massachusetts Constitution that defines marriage
as the union of a man and a woman. For this amendment to become part of our
Constitution, it must be passed by the Legislature again and then be approved
by the people of Massachusetts in November 2006.
As you know, the definition of marriage is of great concern
to many citizens. On a matter of such significance and with such tender
sentiment involved, we must show respect and consideration for those with
different opinions. There are real people, including traditional couples, gay
couples and children, who are deeply affected by this issue.
But, even as we disagree, we must not forget that at the
core of American democracy is the principle that the most fundamental decisions
in society should ultimately be decided by the people themselves. I support
giving the people the opportunity to decide this issue.
Again, thank you for taking the time to contact my office.
Sincerely,
Mitt
Romney
++++++++
At first reading, Romney’s letter – written just a month
before homosexual “marriages” began in Massachusetts – may seem just another
milquetoast response from a politician. But since this man is running for
President and posing as a conservative committed to constitutional principles,
it bears closer study.
Its historical context is significant.[280]
It was written at the same time that Romney’s executive branch officers were
preparing to travel around the state to conduct training sessions for Town
Clerks[281] and Justices of the
Peace,[282] and his Department of
Public Health printing presses were churning out illegitimate “marriage”
licenses reading “Party A & Party B”[283] – with bare notice by
the public.
Romney’s letter reveals his blindness to the most outrageous
instance of judicial tyranny since Roe v. Wade,[284]
his incomprehensible spirit of resignation in face of the Court’s activism, his
utter disregard for the Massachusetts Constitution, and an almost breezy attitude
towards the looming disaster in his state – and all of America.
Was Romney unaware that his oath to uphold the Massachusetts
Constitution required that he implement only laws on the books? The
Legislature had passed no new marriage law. Though the Court advised it to do
so, it could not constitutionally order it to do so. Thus, there was no reason
Romney should (or even could legally) act to implement homosexual
“marriages.” There was no enabling legislation. (“The execution of the laws
ought never to be exercised but by the legislature, or by authority derived
from it.”) Further, the Court never even suggested the Governor do
anything!
But his letter implies that the only recourse for preserving
marriage was to pass a constitutional amendment. And that could only have taken
effect long after the looming date of May 17, 2004. He says nothing about what
constituents might expect on that date, just a month away. He neglected to
mention that he was in fact facilitating a cataclysmic event for all of
America. And what of the “marriages” that would take place between May 17, 2004
and the possible effective date of his phony amendment (late 2006)? Silence.
Was Romney really so ignorant of his proper constitutional
role as Governor? Or was there something deeper, even unethical, going on? Was
he hoping we all wouldn’t notice that he was, in fact, implementing the
unconstitutional Court ruling – perhaps in order to keep his promise to
homosexual activists?
An article in the New York Times (September 2007)[285]
sheds light on Romney’s bizarre actions (and vacuous letter) during early 2004.
It reveals that in 2002, he had actually promised his Log Cabin Republican
(homosexual activist) friends that he would,
… obey the courts’ [sic] ultimate ruling and not champion a
fight on either side of the issue. “I’ll keep my head low,” he said, making a
bobbing motion with his head like a boxer … [He] promised
the Log Cabin members that he would not champion a fight against same-sex
marriage …
And, in the aftermath of the Massachusetts court decision,
Mr. Romney, though aligning himself with the supporters of a constitutional
amendment, did order town clerks to begin issuing marriage licenses to same-sex
couples. Some members of Log Cabin Republicans say that in doing so, he ultimately
fulfilled his promise to them despite his own moral objections.
One Log Cabin member noted that Romney did not “[carry] the
flag with missionary zeal” for either side of the issue. That describes a man
without principle on the crucial issues of judicial activism and marriage. And
it squares with Romney’s statement to the Log Cabin Republicans “that his
perspective on gay rights had been largely shaped by his experience in the
private sector where, he said, discrimination was frowned upon.” His approach to
“gay rights” was thus apparently not a moral issue for him, but shaped by his
practical business and political interests.
Earlier, in 1994 when running for the Senate, he had
promised the Log Cabin Republicans:
… as we seek to establish full equality for America’s gay
and lesbian citizens, I will provide more effective leadership than my opponent
[Ted Kennedy] …
– which, as a Republican and Mormon, he would be able to get
away with more easily than Kennedy.[286]
“Full equality” would include “marriage equality.” He was speaking their language.
Back to his April 2004 letter: Romney equates natural
families with unnatural families (headed by same-sex couples), uses the word gay,
and the squishy phrase tender sentiment. He instructs us to tread
lightly around the “tender sentiment” of “gay couples” – which implies that
society should never ban “gay marriage” because it would upset some people.
Therefore, we should let anyone who says the word “love” do anything they want.
If two sodomites feel “tender sentiment” towards each other, that means they
can be “married.”
Is Romney saying sentiment should rule, not what is best for
society, children, or the public health? If someone, somewhere is “deeply
affected” by something, should this overrule rational, principled, moral
discourse and lawmaking? “Tender sentiment” is highlighted, but the
Constitution is only indirectly referenced in the context of a proposed
amendment (as if the Constitution were flawed). And there is no reference to
the existing law.
Tender sentiments on parade at the Boston Dyke
March. This photo was from their 2008 parade, but they had recycled these same
signs for many years. (MassResistance photo)
Romney excitedly mentions the preliminary passage of the
Travaglini-Lees amendment, but avoids noting its hideous compromise: It would
have written same-sex “civil unions” (equivalent to marriage) into the
Massachusetts Constitution at the same time that it defined marriage as one man
+ one woman. He blissfully ignores the fact that many recognized that final
passage of the amendment was highly unlikely, because neither true pro-family
forces nor die-hard homosexual activists (unwilling to settle for civil unions)
would support it.[287] For him to portray this amendment (which
still had to pass two more big hurdles, and could not possibly take effect
before late 2006) as the only possible solution to the marriage crisis was
dishonest – and diversionary.
Romney ends his letter with the sop that this crisis is
really all about our “democracy.” Leaving aside the issue of the
republic-democracy distinction, why did Romney not mention that our government
is based on the Constitution? Shouldn’t his first point of reference be his
oath to preserve the separation of powers and to enforce existing law (not
imaginary, Court-invented “law”)? He could not bring this up, because that
would have exposed his ongoing, illegitimate implementation of homosexual
“marriage.”
Romney’s focus on “giving the people the opportunity to
decide this issue” was a ploy to deflect attention from the larger issues of
activist judges and his responsibility as Chief Executive to enforce or
implement only actual law. (The marriage law still has not been
changed. The homosexual lobby has repeatedly failed to get their bills allowing
homosexual “marriage” passed.[288])
Romney ignored our voices – and the
Constitution
Many well remember the feelings of panic and desperation
that gripped pro-family citizens throughout the state in late 2003 and early
2004. We went to rally after rally in freezing January, February, and March
weather in front of the Supreme Judicial Court, on the Boston Common, in front
of the State House, while Romney sat in his cozy corner office and looked down
on us. We called, e-mailed, and sent letters to the Governor and our legislators.
We were all wondering: Why doesn’t Governor Romney say
something? Do something? Why the silence from the Governor’s office? Why
doesn’t he at least make statements supporting our rallies and demonstrations
for removal of the judges, and for a strong marriage amendment? We were all
continuing to hope against hope that Romney was working behind the scenes to
halt the insanity.
We didn’t know then that he had promised his homosexual
Republican activist friends (while campaigning in 2002) that he would not
oppose the expected Supreme Judicial Court ruling on homosexual “marriage.” And
we didn’t fully understand that he was working in late 2003 and early 2004 with
the unethical Senate President, Robert Travaglini, and Senate Minority Leader,
Brian Lees, to write civil unions into the Massachusetts constitution (through
their phony compromise marriage amendment) – as a little insurance policy
should anything keep the May “marriages” from going forward.[289]
People were pleading with the Governor to say: “No, Judges,
you cannot order either of the other two branches of government to do anything!
You may not make law! Nothing will change on May 17. Current law allows for
marriage only between one man and one woman, and that is the law I will
continue to enforce.”
But there was only silence… or worse. He had on many
occasions referred to the Court ruling as “law” that he would follow. The day
after the ruling he said,
We obviously have to follow the law as provided by the
Supreme Judicial Court, even if we don’t agree with it.[290]
The only encouragement Romney offered to pro-family citizens
was that an amendment to the Constitution should be voted on. How
exactly it should be worded, he never said. On that score, we pleaded: The
amendment must be pure, and not force or allow establishment of “civil unions”
alongside one man/one woman marriage! But he bragged in his April
2004 letter of the compromise amendment – without mentioning that it included
“civil unions.”
The fact that he ends his letter, “I support giving the
people the opportunity to decide this issue,” reveals his awareness that
they might not get to vote. And that’s just what happened: The several
proposed amendments never did make it to the voters.
Where was Governor Romney in April 2004 when Article 8
Alliance presented shocking information on Chief Justice Margaret Marshall’s
violations of the Code of Judicial Conduct?[291] Her appearances at
fundraising events for radical advocacy groups supporting homosexual “marriage”
were not allowed under the code. She had very publicly revealed her bias on the
issue.
Why did Romney not support the Bill of Address (filed by
Representative Emile Goguen) to remove the four Supreme Judicial Court judges?
What did he believe should happen when judges so flagrantly violate the
constitutional separation of powers?
All the while, through February, March, and April 2004, Gov.
Romney and his team were busy betraying us, while stringing us along with
pretty words on “democracy” and “letting the people vote” on marriage
(possibly, some day in the distant future...). Only those paying closest
attention noticed the stories in the Boston Globe about Romney’s people
working behind the scenes, secretly holding meetings with state officials, to
be sure all the paperwork (and threats to state officials of fines or firing)
were in place to ensure the homosexual “marriages” began on May 17. Not one
clear word from Romney himself about these plans, only a few leaks from Town
Clerks, Justices of the Peace, or an occasional cryptic comment from a Romney
spokesman.
On April 15, 2004 (the same day he wrote the letter to his
constituents), Romney created another diversion to make it appear he was trying
to halt the homosexual “marriages.” He filed an emergency bill in the
Legislature to appeal to the same rogue Court which issued the homosexual
“marriage” ruling. He wanted to seek a stay on the start date for the
“marriages” (to allow for the amendment process to play out). He thus again
acknowledged the Court’s ultimate power to enact and enforce their new “law.”
Romney surely knew this bill would be shelved. But its filing would come in
useful when he ran for President, to bolster his claim that he did everything
he could to save marriage.[292]
Romney certainly saw the Court as an imperial
authority, kowtowing from the day it issued the Goodridge marriage ruling. He
just wasn’t getting the message in this banner, frequently used in Article 8
Alliance-MassResistance demonstrations. (MassResistance photo)
Lately [in late 2007], Mitt Romney has been shedding tears
publicly. Well, many of us shed real tears as May 17 approached, and we
knew that Romney was shafting us, our constitutional government, our society.
We were in a state of disbelief, feeling helpless and abandoned. How could a
Republican Governor be doing this to us? (And where were the national
conservative leaders?)
May 17, 2004 came, and the pseudo-marriages began. Many of
us felt the evil that took hold of the state that day. Activists from Article 8
Alliance-MassResistance and religious groups rallied on Boston City Hall Plaza,
praying, speaking of the Constitution, and even crying. (Massachusetts Family
Institute told its supporters not to attend the rally ... because they had made
a strategic alliance with Romney, we later understood.)
And what brief statement did Mitt Romney issue on that
hideous day that he made possible?
All along, I have said an issue as fundamental to society as
the definition of marriage should be decided by the people. Until then, I
intend to follow the law and expect others to do the same.[293]
Again, he said the ruling is “law”!
May 17, 2004: “Marriage Destruction Day”: Article 8
Alliance-MassResistance held a rally with about 150 supporters on Boston City
Hall Plaza as the same-sex “marriages” began there. Dr. John R. Diggs, Jr.
(author of “The Health Risks of Gay Sex,” at microphone) spoke, as did Rabbi
Yehuda Levin, Brian Camenker, and a Catholic leader (whose name is lost to
history). Bill Cotter and Operation Rescue Boston activists had the courage to
appear that day. A few national Christian leaders came and led prayers: Rev.
Patrick Mahoney (Christian Defense Coalition) and Rev. Rob Schenck (Faith and
Action). Where were other prominent leaders? They were following Governor
Romney’s entreaty to “follow the law” and “respect others.” The Article 8
Alliance signs read: “No Same-Sex Marriage,” “Stop Judicial Tyranny,” “Remove
the Judges,” and “Marshall Not Impartial.” The “Romney Just Say NO to Judge” banner
was there to remind everyone who brought this day of legal chaos to
Massachusetts. (Frame from video by CatchOfTheDay Video News)
No one in America was better placed than Governor Romney in
2003-2006 to take a forceful stand for constitutional separation of powers and
against judicial activism, but he failed miserably. He could have issued an
Executive Order to halt the “marriages” – or simply ignored the ruling. He
could have rallied national support to remove the judges, and bring such shame
on the Legislature that they would have to take up the cause. It was a profound
failure of leadership and moral courage on Romney’s part.
As Professor Hadley Arkes said of Romney on marriage
destruction day, May 17, 2004: Romney was “the missing Governor,” exemplifying
“Republican leaders [who have] lost their confidence on basic moral matters.”[294]
(That article was published in National Review before they went into
denial about Romney’s true record as Governor.[295])
May 17, 2005: On the one-year anniversary of the “gay
marriages” starting in Massachusetts, Brian Camenker of Article 8
Alliance-MassResistance held a press conference warning the nation where the
radical homosexual movement was going. He revealed that the pornographic
“Little Black Book” (published by the AIDS Action Committee of Massachusetts)
had recently been given to teens at the GLSEN-Boston Conference. Now that “gay
marriage” was supposedly legal, he predicted that more of such outrages would
be seen in the schools. Mitt Romney had recently donated $10,000 to the AIDS
Action Committee in 2004.[296] (MassResistance
photo)
After the “marriages” began, our group focused on the effort
to remove the homosexual “marriage” judges. (The marriage amendment proposals
were clearly being commandeered by the compromisers, and were not worth
investing in.) But Romney never communicated with the 25 legislators supporting
the Bill of Address to remove the judges. His only real comment on that effort
came in answer to a question at his June 2005 VoteOnMarriage press conference:
I’m not looking to recall the judges. I do however believe
that justices should not legislate from the bench any more than legislators
should adjudicate from the legislature. And I believe that there should be a
separation of powers and responsibilities, and I believe that in this case that
the Supreme Judicial Court engaged in legislating. I believe it was an improper
decision on their part, and that’s why I believe that ultimately the citizens
should have the opportunity to make this choice, or their elected
representatives.[297]
Romney did admit the judges behaved contrary to the
Constitution, yet he refused to support the effort to remove them (without
giving a reason), and he had failed to ignore their “improper” ruling. So much
for his supposed opposition to activist judges that he is now touting all over
America. He simply kicked the can down the road, told the citizens to chase
after an elusive marriage amendment, and diverted most eyes from his failure to
act as the Constitution required.
Romney made few public statements on marriage during his
administration (and then just to say it was about children deserving a mother
and a father). But he always included a command to respect all citizens, no
matter the choices they may make in their lives.[298]
So, must we respect the choice of sodomy, or the characteristic promiscuity in
the homosexual community? And must we recognize the legitimacy of “families”
with same-sex “parents”? Romney’s answer is “Yes.”
These activists demanded “no discrimination in the
Constitution.” The man’s T-shirt reads, “Gay? Fine by me.” And it’s fine with
Mitt Romney, who agrees that there should be “no discrimination on the basis of
sexual orientation.” So where exactly is the line separating this couple’s beliefs
from Romney’s? (MassResistance photo)
Irreparable
damage done
Mitt Romney’s dishonest maneuvering was breathtaking. He
undermined the Massachusetts Constitution he swore to uphold, betrayed the
institution of marriage, and did not communicate honestly with concerned
citizens. He continued to ignore pleas from conservative leaders around the
country, 44 of whom urged him to issue an Executive Order overturning his
mistaken actions leading to the homosexual “marriages” before he left office
(in December 2006).[299] He had one last chance
to set things right. True to form, he was silent upon receiving that letter.
What else did Romney let loose in Massachusetts that is now
adversely affecting our country? GLBT activists everywhere have been energized
by what their movement got away with in Massachusetts – with Romney’s help.
They are now moving beyond homosexual “marriage,” on to “transgender rights.”
At the same time Gov. Romney claimed he was doing all he
could to defend marriage, his “Governor’s Commission on Gay & Lesbian
Youth” was sponsoring GLBT youth events. In the May 2005 Youth Pride parade in
Boston, teens marched with signs supporting same-sex marriage and opposing the
proposed marriage amendment: “No Discrimination in the Constitution.
MassEquality.” Marching with them (in white pants) is an adult MassEquality
staffer. Since Romney claimed same-sex marriage was the “law,” how could he
object to this? The students were simply advocating upholding the “law” and
protecting “rights” recognized by the Court. (MassResistance photo)
In Massachusetts, they’re chanting the mantra, “Gay marriage
is legal – so we have to teach diversity”
to even the youngest children in the public schools. Parents immediately
felt the effects. In an infamous 2005 case, Governor Romney did state that
Lexington parent David Parker was within his legal rights to opt his
kindergarten child out of homosexual and transgender topics at school.[300]
But the Governor did not follow through: He failed to order his
Department of Education to enforce the parents’ rights law. Yet he would bring
this case up in campaign speeches, blaming the Court’s homosexual “marriage”
ruling, as if he had been powerless to defend the parents. (What benefit is
there for a child if the mother and father he “deserves” – following
Romney’s principle – cannot impart their own values to the child?)[301]
Mitt Romney’s failures to follow the Constitution and
protect marriage and the family will have ripple effects we are only just
beginning to see.[302]
THANKS, MITT!
His “Patton moment”: Governor Romney at his “Rally for
Democracy” on November 19, 2006. (VoteOnMarriage photo)
Chapter VIII
Timeline:
Governor Mitt Romney’s Role
Creating “Gay Marriage” in Massachusetts
[All information and quotes
in this timeline have been thoroughly documented in previous chapters in Mitt
Romney’s Deception, and/or come from major mainstream media sources,
usually the Boston Globe, Boston Herald,
New York Times, AP, etc.]
Mitt
Romney demonstrates his commitment to “gay rights” before becoming Governor
& before “gay marriage” ruling (1994-early 2003)
1994 Campaign vs. Ted Kennedy for U.S. Senate:
Romney pledges he “will provide more effective leadership” than Kennedy on gay
rights in letter to Log Cabin Republicans. Gives interviews to sexual-radical
newspaper, Bay Windows.
2001 As head of Salt Lake City Olympic Committee,
Romney seeks out participation by local homosexual activist group.
2002 Romney opposes first Massachusetts marriage
amendment petition as “too extreme” because it banned civil unions/domestic
partnerships. Senate President kills the amendment by unconstitutionally
adjourning the Legislature without voting on it in 2002; Romney has no comment.
Seven same-sex couples who were denied marriage licenses sue in Suffolk
Superior Court (Boston) to challenge state’s marriage law (Goodridge
case begins).
2002 During his campaign for Governor, Romney makes
promises to GLBT community and is endorsed by homosexual Log Cabin Republicans.
He “promised to obey the court’s ultimate ruling and not champion a fight on
either side of the issue” of same-sex marriage, and to work for “domestic
partnerships.” He gives interviews to sexual-radical newspaper, Bay Windows.
His campaign distributes a flyer during Boston Gay Pride week (June): “Mitt and
Kerry [Lt. Gov. candidate] wish you a great Pride weekend! All citizens deserve
equal rights, regardless of their sexual preference.” Many homosexual activists
serve on his campaign and transition team.
2003 Romney’s term as Governor begins in January. He
ignores marriage amendment (still pending after unconstitutional adjournment of
Constitution Convention in July 2002; the Pawlick “Protection of Marriage
Amendment”); fails to call on Legislature to vote. In May, he issues a
proclamation celebrating Youth Pride Day (sponsored by his “Governor’s
Commission on Gay and Lesbian Youth”), celebrating “landmark legislation that
prohibits discrimination against gay and lesbian students in the Massachusetts
public schools.” Youth Pride events include a parade, festival, and speeches
(all led by adult GLBT activists), and a GLBT prom (run by a male-to-female
transsexual).
After the “gay marriage” ruling
(Nov. 2003-May 2004)
Nov. 18, 2003 Massachusetts Supreme Judicial Court
(SJC) rules that it is a violation of the Massachusetts Constitution to bar
same-sex couples from marriage, and while the Court owes “great deference to
the Legislature to decide social and policy issues,” it gives the Legislature
180 days “to take such action as it may deem appropriate in light of this
opinion.” (Goodridge ruling.)
Nov. 18, 2003 Romney responds to SJC ruling with
four-sentence statement implicitly recognizing SJC’s authority and confirming
his commitment to “gay rights.” Says the only remedy will be a constitutional
amendment: “I disagree with the Supreme Judicial Court. Marriage is an
institution between a man and a woman. I will support an amendment to the
Massachusetts Constitution to make that expressly clear. Of course, we must
provide basic civil rights and appropriate benefits to nontraditional couples,
but marriage is a special institution that should be reserved for a man and a
woman.”
Nov. 19, 2003 Romney says, “he would work on two
tracks, pushing to amend the constitution to ban gay marriage while also
working to provide ‘basic civil rights and appropriate benefits to same-sex
couples and other nontraditional relationships.’ He said he would support
health-care benefits and inheritance rights, but said he could not list the
full slate of rights he is comfortable with granting. ‘I agree with 3,000 years
of recorded history. I disagree with the Supreme Judicial Court of
Massachusetts,’ Romney said. ‘But I can tell you that over the next several
months that I will work with legislative leadership, and other legislators, and
community leaders to decide what kind of statute we can fashion which is
consistent with the law.’ At the same time … he said he would abide by the
ruling. 'We obviously have to follow the law as provided by the Supreme
Judicial Court, even if we don’t agree with it.'”
Nov. 19, 2003 “Romney warned the state would refuse
to honor gay marriages before the end of the 180-day period … 'The state has
informed the clerks in our various clerks’ offices around the Commonwealth
that, given the stay of the implementation of the supreme court’s decision, a
180-day stay, that they are not to proceed with issuing marriage licenses at
this time.'”
Nov.-Dec. 2003 Romney working with Legislators
pushing for civil unions (via statute). He also says he is supporting an
amendment which would ban same-sex marriage. (The pending Travis-Mass. Family
Institute-MA&PA amendment would define marriage as one man-one woman, but
also ban civil unions. MFI’s president says Romney supports that amendment.)
Dec. 11, 2003 Senate passes “civil unions” bill (to
establish via statute) and asks SJC for an advisory opinion on whether it would
satisfy the Goodridge ruling.
Jan. 2004 Romney silent on proposal to remove four
SJC justices through Bill of Address after effort is announced by Article 8
Alliance at State House press conference.
Feb. 2004 Justices of the Peace are told by their
professional association they will be able to claim “conscientious objector”
status and refuse to perform same-sex marriages – though this was never agreed
to by Romney administration (according to Chief Legal Counsel Daniel Winslow).
Feb.-May 2004 Various pro-family leaders,
columnists, and citizens urge Romney to defy court and issue Executive Order to
block same-sex marriage. Non-committal, confusing responses from Romney.
Feb. 4, 2004 SJC tells Legislature that civil unions
for same-sex couples will not satisfy its interpretation of the Massachusetts
Constitution; only full-fledged marriage will do. Romney says, “This issue is
too important to leave to a one-vote majority of the SJC.” He urges the
Legislature to proceed with its work on an amendment, “noting that such a
‘legitimate’ process would keep the Court from having the final say.” (AP)
“We’ve heard from the court, but not from the people. The people of
Massachusetts should not be excluded from a decision as fundamental to our society
as the definition of marriage.”
Feb. 5, 2004 Romney’s op-ed in Wall Street
Journal lays all blame on the SJC for problem in Massachusetts. Suggests
states strengthen marriage statutes, and urges passage of state and federal
constitutional amendments. “President Lincoln faced a judicial decision that he
believed was terribly wrong and badly misinterpreted the US Constitution. … By
its decision, the Supreme Judicial Court of Massachusetts circumvented the
Legislature and its executive and assumed to itself the power of legislating.
That’s wrong.” He says, don’t “attack … gays, singles or non-traditional
couples.” “Shawn Feddeman, Romney’s spokeswoman, said the governor was not
suggesting that he intends to flout the SJC’s ruling. ‘He’s talking about the separation
of powers,’ she said.”
Feb. 6, 2004 Goodridge plaintiffs meet with
Romney. He has no comment for reporters on whether he will do anything to stop
issuance of same-sex marriage licenses. “I don’t have anything to give you on
that front. I intend to follow through with the law of the state as it exists
at the time.” Over the next few days, the establishment pro-family leaders
bargain away the clause in the MA&PA amendment which would have banned
civil unions.
Feb. 10, 2004 Proposal for “compromise amendment”
announced; would define marriage as one-man/one-woman, and establish civil
unions with benefits and legal status identical to marriage in the state
constitution.
Feb. 11, 2004 Romney says he will join House Speaker
Finneran in trying to block the issuance of same-sex marriage licenses until
Nov. 2006 so citizens can vote on a marriage amendment. “I would like to
minimize disruption and confusion in the commonwealth. I would look for ways to
preserve a continuous application of the law rather than a disruptive process.”
He does not say specifically what actions he would take. Romney supports
Finneran’s proposed amendment (at Feb. 11 Constitutional Convention). “A
spokesman for Romney said the Governor watched the proceedings on television
from his office and was pleased when Finneran offered the amendment” which
would define marriage as one-man/one-woman but not ban civil unions
(allowing for future civil unions legislation).
Feb. 12, 2004 Romney sends word through Republican
legislators that he opposes any form of civil unions in an amendment to the
Mass. Constitution. Constitutional Convention ends without approval of any
proposed amendment wording.
Feb. 13, 2004 Romney says his lawyers are exploring
ways to prevent a “legal limbo” that would allow same-sex couples to marry
before a constitutional ban could take effect. He does not rule out ordering
the DPH to refrain from issuing marriage licenses to same-sex couples, and says
any move he takes would be “in the bounds of the law.” “Our legal team [is
working] on a wide range of options we have with regards to amendments or
provisions. One [possibility] is that there will be no amendment, in which case
there’s no particular legal limbo. Another is an outcome that will cause
potentially some confusion and disruption. And if that were the case, you’d
look to see if there were a way to reduce that, and I’ll be open to suggestions
about how one might accomplish that.” Romney’s spokesman Eric Fehrnstrom
“reiterated his statement that he will not violate the law.” Romney comments on
the Constitutional Convention: “Regardless of what comes out of the process,
the fact that we have a process that involves the elected representatives of
the people is a very laudable thing.”
Feb. 24, 2004 Romney issues statement on proposed
federal marriage amendment: “[A]mending the U.S. Constitution may be the best
and most reliable way to prevent a patchwork of inconsistent marriage laws
between states and to guard against overreaching by the judicial branch. Acts of
lawlessness in San Francisco bring into even sharper focus the need… I don’t
think anyone ever imagined that we would have courts and local officials
defining marriage in a way that has no historical precedent whatsoever, and
claiming it’s been in the Constitution all along. Of course, we must conduct
this debate with decency, tolerance and respect for those with different
opinions.… In America, the people should decide. In America, the people are
fair and tolerant. Let the people decide.”
Early March 2004 Attorney General Reilly’s office
begins to work with Governor’s office on how to implement SJC ruling on May 17,
allowing same-sex marriage to begin.
March 11, 2004 Legislature agrees to draft of
compromise amendment (Travaglini-Lees) that would define marriage as
one-man/one-woman, but at the same time establish civil unions (in the
Constitution) with identical rights and privileges of marriage. First of two
required legislative votes set for end of March. (If passed, Legislature would
then have to pass it a second time in next session before going to voters in
Nov. 2006.)
March 12, 2004 Romney continues to say an amendment
to Massachusetts Constitution is the solution for preserving traditional
marriage: “Our elected representatives met yesterday and took the first steps
toward passing an amendment to the state Constitution that defines marriage as
the union between a man and a woman. I applaud Senate President Travaglini,
Speaker Finneran and all the members of the Legislature for conducting a respectful
and thoughtful debate. As we saw, some people feel that the amendment changes
the Constitution; I, and many others, feel that it preserves the Constitution.
This amendment process began after the state Supreme Judicial Court redefined
marriage, setting aside thousands of years of recorded history and legal
precedent. The Court directed the Legislature to take action as it deemed
appropriate. That’s just what the Legislature did yesterday. The Legislature is
now on a track to put this issue before the voters. Ultimately, this is as it
should be: the people of our state will decide. I know there are deeply held
personal convictions around this issue. There are real people and real lives
that are affected. On a matter of such significance and with such tender
sentiment involved, I would ask that we continue to show respect and
consideration for those of differing views. For all of us, the rule of law is
bedrock. We’ve seen the lawlessness that has erupted in other states and how it
undermines the higher purposes we all seek to preserve. I know there’s been a
lot of speculation about what action I will take as Governor of the
Commonwealth. Until the Legislature completes its work at the end of this
month, I will have no comment on the options before me. But let me state
clearly that whatever I do will be within the bounds of the law. Just as the
Legislature is working within the constitutional and legal structure of our
state, I will do the same.”
March 26, 2004 Word leaks out that Romney’s Dept. of
Public Health (DPH) and attorneys are planning training sessions for Town
Clerks and preparing same-sex marriage licenses, but Romney’s office refuses to
confirm. The Governor’s spokesman says, “At the appropriate time, the
administration will communicate with city and town clerks. Currently, it’s
premature to do that.” The DPH is also “working on other new vital records
forms, such as birth records” with gender-neutral language.
March 29, 2004 Romney pressures Republicans in
Massachusetts legislature to vote for Travaglini-Lees compromise amendment
which would define marriage as one-man/one-woman, but establish civil unions as
a Constitutional right (though not go to voters, if at all, before Nov. 2006).
The proposed amendment passes by a slim margin due to Romney’s lobbying.
Republican legislators had earlier opposed this amendment because of the civil
unions clause, and it passes this first hurdle due only to their changed
position. (Romney had said earlier he would not support civil unions in an
amendment. See Feb. 12 above.) Romney’s aides told the Republican legislators
that “it was the only amendment on the table and therefore should be
supported.” Romney later (Apr. 15) sends letter to legislators congratulating
them on passing the proposed amendment: “It is an important step in giving our
citizens the right to define marriage as the union of a man and a woman.”
March 29-31, 2004 Romney seeks stay of SJC ruling
until constitutional amendment issue is settled, asking Atty. General Reilly to
take his case before SJC. Romney says at his press conference (Mar. 29): “The
legislature has now passed an amendment in opposition to the Court’s decision,
creating a conflict between the two branches. Given this conflict, I believe
the Supreme Judicial Court should delay the imposition of its decision until
the people have a chance to be heard…. I believe that the Supreme Judicial
Court has an obligation, to the Constitution and to the people of
Massachusetts, to withhold their decision until the people can consider this issue
themselves…. If we begin providing for same-sex marriages on May 17, as ordered
by the Court, and then our citizens choose to limit marriage to a man and a
woman by their vote in November 2006, we will have created a good deal of
confusion during the period in between … It’s important to note that in
defending traditional marriage the Legislature is not attacking nontraditional
relationships. People of differing views and lifestyles deserve respect and
decency from all of us. There are real people and real lives that are deeply
affected by this issue: traditional couples, gay couples and children.” At the
same time (from early March on), Atty. General Reilly’s office has been
counseling Romney’s administration on how to implement the ruling.
March 30, 2004 Romney says he will “abide by the law
of the land as it exists on May 17” and says he will not order town clerks to
defy court edict. Romney has not explored the Constitution section giving him
power over “causes of marriage” and whether it gives him any legal power to
stop same-sex marriage (according to his spokesman).
March 30, 2004 SJC rules that city and town clerks
may not issue marriage licenses to same-sex couples from out of state (where
the marriage would be void; the “1913 law”). Romney says: “This is an important
victory for those of us who wanted to preserve traditional marriage and to make
sure that the mistake of Massachusetts doesn’t become the mistake of the
country.”
March 31, 2004 Attorney General Reilly refuses
Romney’s request to argue for a stay before the SJC. “Romney told a news
conference that he had other options but refused to detail them. ‘I am not
going to lay out all the options,’ he said.”
April 12, 2004 Romney spokesman says training
sessions for town clerks will begin “with plenty of room to spare before May
17.” Ron Crews (Mass. Coalition for Marriage, Mass. Family Institute) states
hope for an Executive Order to halt the marriages.
April 15, 2004 Romney files emergency bill in
Legislature (for permission to approach Court) in order to seek stay of SJC
ruling, but is rebuffed and reprimanded by Senate President Travaglini. Romney
argues that the SJC ruling and the pending marriage amendment (which would
overturn the ruling if passed) have resulted in legal confusion. “He placed the
blame on the Legislature, which has yet to follow a directive from the SJC to
change the state’s marriage laws.” Romney says: “I believe the reason that the
court gave 180 days to the Legislature was to allow the Legislature the chance
to look through the laws developed over the centuries and see how they should
be adjusted or clarified for purposes of same-sex marriage; the Legislature
didn’t do that. Without an extension of the stay, it leaves to the executive
branch … the responsibility to sort out as well as we can how we can interpret
and execute these laws.’ Atty. General “Reilly, at his press conference, said
his office has communicated regularly with Romney’s administration,
offering legal guidance on how to implement the court’s ruling since early
March. He said any implication by Romney that the situation is overly confusing
is hyperbole.” Romney’s letter to the legislators “congratulated them on
passing the proposed amendment: ‘It is an important step in giving our citizens
the right to define marriage as the union of a man and a woman.’”
April 15, 2004 Republican State Senator Bruce Tarr
predicts Legislature will make needed change in marriage law before May 17: “No
one should interpret inaction thus far with the idea that no action is
forthcoming.” No changes were made, however.
April 15, 2004 Romney announces his administration
is scheduling training sessions for May 5-12 with licenses changed to
gender-neutral terms (from “Bride and Groom” to “Party A and Party B”). A
“half-day’s training” is all that is needed, according to Atty. General Reilly.
Romney’s DPH Registrar of Vital Records, Stanley Nyberg, informs town clerks by
letter of training sessions before SJC ruling “becomes effective.”
April 17, 2004 Mass. Dept. of Revenue sends letter
declaring SJC ruling the new “law” effective May 17, 2004.
April 18, 2004 “The Massachusetts Justices of the
Peace Association, which has about 500 members, has asked Governor Mitt Romney
whether members will be required to marry gay couples. So far, the group has
not received an answer, although a lawyer in the office of Romney’s legal
counsel has agreed to meet with them April 25. Shawn Feddeman, a spokeswoman
for Romney, said the justices of the peace will receive ‘appropriate guidance’
at that meeting, but declined to elaborate.”
April 21, 2004 C.J. Doyle (Catholic Action League of
Massachusetts) files petition to SJC for stay of marriage ruling. “The claim is
that the interim introduction of gay marriage, before the voters have the
chance to weigh in on the pending constitutional amendment in 2006, effectively
disenfranchises voters.”
April 22, 2004 Rep. Emile Goguen and Brian Camenker
(Article 8 Alliance-MassResistance) hold press conference at State House on
“Bill of Address” to remove the four errant SJC judges. They also reveal Chief
Justice Marshall’s violations of the Code of Judicial Conduct. (Marshall had
appeared as keynote speaker at homosexual advocacy group dinner in 1999
advocating extension of “rights” for homosexuals, and failed to recuse herself
from ruling on same-sex marriage though she had publicly expressed her bias.)
The mainstream press attends but does not report this news. Romney spokesman
tells homosexual newspaper Bay Windows via e-mail that the Governor will
not support the Bill of Address to remove the four same-sex marriage judges.
April 24, 2004 Romney’s office says documentation
and signatures would be required of same-sex couples for marriage licenses to
prove Massachusetts residency.
April 26, 2004 Romney’s chief Legal Counsel, Daniel
Winslow, issues directive to Justices of the Peace to resign (or be fired,
fined, or sued) if they are unwilling to perform same-sex marriages.
April 27, 2004 American Center for Law and Justice
and others file lawsuit on behalf of 13 legislators, arguing that SJC lacked
jurisdiction on marriage issue. Petition denied by SJC on May 7.
April 29, 2004 Romney writes to 49 other Governors
to inform them he will uphold section of Mass. marriage statutes banning
same-sex marriages for out-of-state couples.
May 3, 2004 Petition by C.J. Doyle (Catholic Action
League of Massachusetts) to SJC (filed April 21) for stay of marriage ruling is
denied by single SJC justice. Its later appeal dismissed by SJC (May 27).
May 4, 2004 Alliance Defense Fund files motion in
Superior Court on behalf of Raymond Flynn (former Mayor of Boston and
Ambassador to the Vatican) and Tom Shields (head of the Coalition for Marriage
and close personal friend of Romney) to invalidate the Goodridge ruling,
to “protect the sovereign will of the people as expressed in their
Constitution, and to defend their exclusive jurisdiction to amend that Constitution.”
May 5, 2004 Romney softens his position on residency
requirements, and will not require couples to provide “documentary evidence”
that they are Massachusetts residents (despite the “1913 law” barring
out-of-state couples from marrying in Massachusetts if their home state does
not recognize the marriage as valid). A sworn statement and signature may be
considered adequate proof of Massachusetts residency.
May 5-12, 2004 Town clerk training sessions held.
(GLAD – Gay & Lesbian Advocates & Defenders, who argued for homosexual
marriage before SJC – posts content of sessions on Internet in same week.) DPH
and Governor’s Legal Counsel tell clerks at training sessions that sworn
statements are adequate proof of Massachusetts residency.
May 7, 2004 Petition (filed April 27) for stay of
marriage ruling by 13 Legislators is denied by SJC – same court they were
challenging.
May 11-14, 2004 Flynn-Shields motion (filed May 4)
to invalidate ruling is denied by SJC – the same court they were challenging.
May 12, 2004 Four groups (Liberty Counsel, Citizens
for the Preservation of Constitutional Rights, Thomas More Law Center, and
American Family Association) appear in federal district court attempting to
halt same-sex marriages from beginning May 17. Mathew Staver (Liberty Counsel)
wrote: “The Supreme Judicial Court clearly overstepped its authority and
usurped the power of the legislature to define marriage…. The federal courts
are obligated to step in to ensure that Massachusetts is following the basic principle
of separation of powers that is vital to our system of law and government.” The
lawsuit (filed on May 10) was based in part on the U.S. Constitution’s Article
4, Sec. 4: “The United States shall guarantee to every State in this Union a
Republican Form of Government...” The lawsuit was denied on May 13.
May 15, 2004 Romney issues proclamation: May 15 is
“Gay/Straight Youth Pride Day,” celebrating “landmark legislation that
prohibits discrimination against gay and lesbian students in the Massachusetts
public schools” and urges “all the citizens of the
Commonwealth to take cognizance of this event and participate fittingly in its
observance.” Romney’s “Governor’s Commission on Gay and Lesbian Youth”
events include a parade, festival, and speeches led by adult GLBT activists
(including promotion of same-sex marriage), and a GLBT prom – two days before
same-sex marriages are to begin.
After “gay marriage” began (May 2004 &
later)
May 17, 2004 Marriage Destruction Day.
Same-sex “marriages” begin across Massachusetts. Three-day waiting period after
license waived for hundreds of same-sex couples. Romney makes no public
appearance but issues brief statement: “All along, I have said an issue as
fundamental to society as the definition of marriage should be decided by the
people. Until then, I intend to follow the law and expect others to do the
same.” “His aides refused to make Romney available to answer reporters’
question, saying he was working on other business.” Article 8
Alliance-MassResistance holds “Marriage Destruction Day” press conference and
rally on Boston City Hall Plaza, while homosexual activists celebrate and
harass Christian prayer groups. Massachusetts Family Institute and the
Coalition for Marriage advocate silence and stand down, fearing ugly conflicts.
May 18, 2004 Romney begins (lax) enforcement of
section of marriage statute (“1913 law”) banning out-of-state couples marrying
in Massachusetts if that marriage would be illegal in their home state, while
other intact sections of the marriage statute (still stating husband/wife,
man/woman) are ignored. Sworn statements by a couple are deemed adequate proof
of residency.
May 21, 2004 Romney asks Atty. General Reilly to
stop municipal clerks from issuing marriage licenses to out-of-state same-sex
couples, and says Massachusetts would refuse to officially record the licenses
of those couples who do not intend to live here. The next day, Reilly sends
letters to four towns demanding that they stop issuing marriage licenses to
same-sex couples from out of state. (But documentary proof of residency is
still not required.)
May 23, 2004 “Bill of Address” filed by Rep. Emile
Goguen to remove Chief Justice Margaret Marshall and three other errant SJC
justices. Romney makes no comment.
June 22, 2004 Romney testifies before US Senate
Judiciary Committee advocating federal marriage amendment and blames Court for
situation in Massachusetts. “Like me, the great majority of Americans wish both
to preserve the traditional definition of marriage and to oppose bias and
intolerance directed towards gays and lesbians…. [The judges] viewed marriage
as an institution principally designed for adults…. In fact, marriage is
principally for the nurturing and development of children. The children of
America have the right to have a father and a mother…. Marriage is not an
evolving paradigm, as the Court said, but it is a fundamental and universal
social institution that bears a real and substantial relation to the public
health, safety, morals, and general welfare of all the people of Massachusetts.
We need an amendment that restores and protects our societal definition of
marriage and blocks judges from changing that definition.”
Sept. 1, 2004 Romney addresses Republican National
Convention, emphasizing tolerance and respect for homosexuals: “Throughout our
history when our country needed us, Americans have stepped forward by
expressing tolerance and respect for all God’s children, regardless of their
differences and choices. At the same time, because every child deserves a
mother and a father we step forward by recognizing that marriage is between a
man and a woman.” (Quoted in Hugh Hewitt, A Mormon in the White House?,
who characterizes this as “press[ing] the case for traditional marriage.”)
Oct. 29, 2004 Romney signs new law eliminating blood
test for STDs as requirement for marriage license. (Ch. 388 of Acts of 2004.
Note: This is the only part of marriage statutes changed to satisfy demands of
same-sex marriage, as of April 2011.)
Nov. 15, 2004 Memo sent out to town clerks by
Romney’s DPH Registry of Vital Records confirming that premarital medical
certificate (STD test) is no longer a requirement for a marriage license.
Nov. 18, 2004 Article 8 Alliance-MassResistance
demonstrators mark the one-year anniversary of the Goodridge same-sex
marriage ruling at the Lexington Battle Green, demanding removal of the four
rogue SJC judges. Chief Justice Marshall impersonator burns a copy of the
Massachusetts Constitution. Massachusetts Family Institute president again
calls for a constitutional amendment.
Nov. 19, 2004 Romney elected Vice Chair of the
Republican Governors’ Association (later becomes Chairman for 2006 election
cycle).
Nov. 29, 2004 U.S. Supreme Court refuses to hear
appeal by C. J. Doyle (Catholic Action League of Mass.) and 11 legislators to
overturn SJC Goodridge ruling.
Jan. 2005 Romney has no comment on bills filed by
Article 8 Alliance-MassResistance (and legislative sponsors) for 2005-6 session
(to remove four SJC judges; strengthen definition of marriage in statute; and
declare same-sex marriages since 5/17/04 null and void, and without statutory
basis).
Feb. 21, 2005 Romney makes speech before South
Carolina Republicans, and is accused of “flip-flopping” on civil unions by
homosexual lobby (now claiming to oppose them). Romney also negatively refers
to demands by the homosexual activists that birth certificates be changed to
read “Parent A and Parent B” (instead of “mother and father”): “It’s not right
on paper. It’s not right in fact. Every child has a right to a mother and a
father,” he said.
April 12, 2005 Committee on the Judiciary holds
hearing on “Bill of Address” to remove four errant SJC justices who ruled for
same-sex marriage. Rep. Emile Goguen is lead sponsor for the effort spearheaded
by Article 8 Alliance-MassResistance. Gov. Romney and the press ignore it.
May 2, 2005 Federal Court strikes down Nebraska’s
constitutional amendment banning same-sex marriage. (Ruling overturned in
2006.)
May 4, 2005 Romney appoints homosexual activist attorney
Stephen Abany to district court judgeship.
June 16, 2005 Romney makes rare appearance focused
on marriage at State House press conference; announces he is supporting
VoteOnMarriage (VOM) amendment effort, which would define marriage as one
man/one woman, yet recognize same-sex marriages that occurred prior to
amendment taking effect, and not ban civil unions. (After getting voter
signatures and two approval votes by the Legislature, the earliest it could go
to voters was 2008.) The Alliance Defense Fund helped draft the amendment. “I’m
convinced it will pass here,” Romney says. He explains that VOM is superior to
the Travaglini-Lees compromise amendment (then awaiting its second approval by
the Legislature before it could go to voters in 2006) – which would have
written civil unions into the constitution. Romney also announces support of
VOM’s proposed bill promoting partnership benefits for any couple wanting them
(“Benefits Fairness Act” filed Jan. 2006). He calls for a “high degree of
respect and tolerance for people whose lifestyle and choices and orientation is
as they may choose.” Romney says he is opposed to removing the four SJC judges.
July 22, 2005 Romney says only Legislature can
change birth certificates from “mother and father” to “Parent A and Parent B.”
Sept. 14, 2005 Travaglini-Lees compromise amendment
defeated in Legislature, with opposition from both sides (homosexual and
pro-family).
Nov. 11, 2005 Romney criticizes Supreme Judicial
Court in speech to Federalist Society: The Court had a choice between “the law
or … the social proclivities of the community of thought [with] which the court
associates. Will it be the law, or will it be social congratulations?” he asks.
Says judiciary must be grounded in Constitution and law and precedents, and
only the Legislature and the people can change that base. Says the Goodridge
marriage ruling was “totally unbounded by the Constitution, precedent, and the
law [and] … extra constitutional … we’ve got to start defending those values
that we think are critical to the preservation of our society, which are
embodied in our Constitution, and insisting that judges do that…. I’m convinced
that one of the reasons that our culture and our values have sustained over
such a long period of time is that the Constitution that we use as a guide
includes those values that the founding fathers saw as being so critical to the
preservation of the Union.
Jan. 2, 2006 A report stated that Romney issued
special discretionary one-day Governor’s certificates for at least 189 same-sex
couples in 2005 to allow anyone they chose to officiate at their marriage
ceremony. His Chief Legal Counsel Winslow claimed the Governor did not refuse
because he was evenly applying the “statute.” The certificates were issued to “state
legislators ... members of the clergy from out-of- state, family members, and
friends.” (Note: There was no new statute establishing same-sex marriage; and
the special certificate statute does not require the Governor to issue them to
anyone who asks.)
Jan. 11, 2006 Romney files “Benefits Fairness Act”
with VoteOnMarriage organization to allow any couple to receive partner
benefits (no sexual relationship required). It is roundly criticized by GLBT
lobby, and shelved in committee as late-filed bill. (VOM pushed it as an
integral part of its strategy to ensure passage of their amendment.)
March 10-14, 2006 Romney says laws require Catholic
Charities not to discriminate against same-sex parents in its adoption
placements, though there are only administrative regulations. He says same-sex
couples have “a legitimate interest” in adopting children. He announces he will
file a “religious liberty” bill addressing the Catholic Charities issue. (It is
a late-filed bill and shelved in the Legislature.)
March 30, 2006 SJC rules “1913 law” is
constitutional, so it is legal to prevent out-of-state same-sex couples from
marrying in Massachusetts if the marriage would be void in their home state.
May 9, 2006 MassResistance group meets with top
Romney aide Peter Flaherty re: Romney’s errors implementing same-sex marriage,
and the excesses of the upcoming “Youth Pride” event (sponsored by his
Governor’s Commission on Gay and Lesbian Youth). They demand Governor issue an
Executive Order overturning his unconstitutional implementation of same-sex
marriage, disband the Commission, and halt the Youth Pride event.
May 11, 2006 Romney briefly disbands “Governor’s
Commission on Gay and Lesbian Youth” but rescinds his Executive Order within
hours, bowing to pressure from homosexual legislators. (Romney’s show of
weakness emboldens homosexual lobby to push through an independent Commission
in July.)
June 2, 2006 Romney sends letter to all U.S.
Senators arguing for federal marriage amendment. “Americans are tolerant,
generous, and kind people. We all oppose bigotry and disparagement, and we all
wish to avoid hurtful disregard of the feelings of others. But the debate over
same-sex marriage is not a debate over tolerance. It is a debate about the
purpose of the institution of marriage…. In fact, marriage is principally about
the nurturing and development of children.”
June 28, 2006 Romney urges legislators to vote on
VoteOnMarriage amendment, and addresses importance of following “their clear
Constitutional duty” to vote (rather than use procedural means to block the
amendment). On July 12, legislators postpone the vote until Nov. 9 (after the
election).
Sept. 30, 2006 Romney says he has to “follow the
law,” and accept Mass. Superior Court ruling stating that a Rhode Island
lesbian couple can marry in Massachusetts (following an earlier SJC ruling
addressing Rhode Island’s lack of prohibition of same-sex marriage).
Oct. 15, 2006 Romney addresses nationally broadcast
“Liberty Sunday” (Family Research Council) event in Boston. Blames SJC for
Massachusetts problems, says we need an “outpouring of respect and tolerance
for all people regardless of different choices they make,” and “as a nation we
must reject discrimination and bigotry.” Calls for support of federal marriage
amendment. Says schools in Massachusetts should not teach about same-sex
couples (but as Governor had not upheld law protecting parents’ rights to opt
out of such curriculum). Outside the church, vehement homosexual protesters
mock Romney and Family Research Council president with vulgar language.
Nov. 9, 2006 Legislators vote to recess without
taking a vote on VoteOnMarriage amendment (as required by Constitution for a
citizen referendum).
Nov. 19, 2006 Romney holds extravagant “rally for
democracy” on State House steps announcing he is delivering a copy of the
Constitution to the 109 legislators who voted to recess (without voting on VOM
marriage amendment). He is appealing to the SJC to force the vote. As Romney’s
term ends, he thus diverts attention from his failures to defend the
Constitution in 2003-2004, and has transformed the issue into “letting the
people vote.”
Nov. 20, 2006 MassResistance publishes its report,
“The Mitt Romney Deception,” nationalizing the constitutionalist critique of
Gov. Romney’s implementation of the illegitimate SJC same-sex marriage ruling,
and cataloguing his flip-flops on other issues. This creates a firestorm within
conservative political circles. Meanwhile, Romney is organizing his national
PAC to help support his Presidential ambitions.
Dec. 2006 Romney’s pandering 1994 letter to Log
Cabin Republicans revealed in New York Times. Written during his Senate
campaign against Ted Kennedy, he thanked the homosexual Republican group for
their support and promised to promote their goals more forcefully than Kennedy
would. This letter causes some conservative leaders to withdraw or reconsider
their support for Romney’s Presidential candidacy. His campaign is also damaged
by Bay Windows (Boston homosexual newspaper), which republishes its1994
and 2002 pro-gay-rights interviews with Romney, plus articles on his pro-gay
history.
Dec. 27, 2006 SJC says legislators do have
constitutional duty to vote on amendment, but Court cannot force them to do so
(due to constitutional separation of powers). Romney claims vindication, but
amendment proponents still are unsure the Senate President will call a vote
before the session ends on Jan. 2.
Jan. 2, 2007 Legislature called back into session by
Senate President to vote on VOM amendment. The amendment was passed (so moved
on to 2008-9 session for second required legislative vote). Romney says the
vote was a “huge victory for the people of Massachusetts.… In a democracy, the
voice of the people is sovereign. I congratulate the Legislature and its
leadership for upholding the Constitution and the rule of law.”
Jan. 4, 2007 Romney’s term as Governor ends.
Jan. 9, 2007 Small group of “conservative”
pro-Romney groups and friends in Massachusetts circulate an open letter to
bolster his “pro-family” identity (with support from National Review).
Signers included Mass. Family Institute, Mass. Citizens for Life, Coalition for
Family and Marriage, Morality in Media (Mass.), and Professor Mary Ann Glendon.
(This effort at damage control followed MassResistance’s “Mitt Romney
Deception” report, the revelation of Romney’s 1994 letter to the Log Cabin
Republicans, and re-publication of the Bay Windows interviews.)
June 14, 2007 VOM amendment killed in its second
legislative vote, receiving only 45 votes out of 200 legislators. (Only 50 were
required to move it on to the voters).
Dec. 11, 2007 National Review endorses Romney
in the Republican Presidential primary.
Feb. 2008 Romney withdraws from Republican
Presidential primary race.
July 31, 2008 Governor Deval Patrick signs repeal of
“1913 law” prohibiting non-residents from marrying in Massachusetts, if their
marriage would be void in their home state – facilitating the spread of
same-sex marriage throughout the country (even though Massachusetts same-sex
marriages are fraudulent).
July 2010 Massachusetts legislative session ends
without passage of bill H1708, which would have legalized same-sex marriage.
Since the Massachusetts Constitution does not allow judges to change law,
same-sex marriage is still not legal. (The Massachusetts marriage statute still
reads man/woman, husband/wife.) The homosexual lobby filed this bill every
session since the 2003 Goodridge ruling. The bill read: “Chapter 207
is hereby amended by adding the following new section: Section 37A. Any person
who otherwise meets the eligibility requirements of this chapter may marry any
other eligible person regardless of gender.” (The bill never made it out of
the Judiciary Committee.)
Sept. 2010 Massachusetts Gay & Lesbian Political
Caucus and transgender activists unanimously endorse Daniel Winslow for State
Representative, thanking him for his support of the Goodridge ruling.
Winslow was Gov. Romney’s Chief Legal Counsel and a primary legal advisor
during the constitutional crisis following the same-sex marriage ruling. It was
Winslow who advised and trained Town Clerks and Justices of the Peace, and
devised the wording “Party A and Party B” for the fraudulent new marriage
licenses.
Jan. 2011 Homosexual lobby fails to re-file their
bill to legalize same-sex marriage. (It had been filed in every previous
session since 2005.) They do, however, re-file their bill to decriminalize
sodomy.
Commentary
Mitt Romney’s Other Flip-Flop: Follow
the Court or the Constitution?
By Amy L. Contrada
www.AmyContrada.com
November 11, 2011
Mitt Romney swore this oath on January 2, 2003 when he
became Governor of Massachusetts:
I do solemnly swear and affirm that I will faithfully and
impartially discharge and perform all of the duties incumbent upon me as
Governor of the Commonwealth of Massachusetts according to the best of my
abilities and understanding, agreeably, to the rules and regulations of the
Constitution and the laws of this Commonwealth, so help me God.
Mitt Romney has claimed that he “took every conceivable step
within the law to defend traditional marriage.” This is simply not true. In
fact, all he had to do to prevent “gay marriage” from beginning in 2004 was follow
the clear separation of powers laid out in the state Constitution. But
instead, he kowtowed to the state high court’s dream of “gay marriage” in its
2003 opinion, Goodridge v. Department of Public Health.
Romney’s liberal tendencies have been well noted, especially
with regard to RomneyCare, TARP, gun control, abortion, climate change, and
immigration policy. But his failure to stand up for constitutional principles
and conservative values following the Goodridge opinion is perhaps his
largest failing. That ruling was possibly the most significant perversion of
judicial authority since Roe v. Wade. Yet Romney called it “law” that he
must implement and follow.
Romney has since repeatedly said that the courts cannot make
law and that judicial activism must be opposed. So here we have another Romney
flip-flop. Which is it? Can – or cannot – courts make law?
In November 2003, four unelected judges on the Massachusetts
Supreme Judicial Court asked the Legislature to change the existing man-woman
marriage statute to allow for same-sex couples. The Legislature ignored that
request, knowing the Court had no power to order them or to overturn existing
law. And the law was never changed.
But Governor Romney forged ahead in 2004, ordering his
Department of Public Health to print new “Party A & Party B” marriage
licenses, and having his Chief Legal Counsel train the Town Clerks and Justices
of the Peace to license and perform the same-sex “marriages” (with no allowance
for conscientious objectors). His Legal Counsel was later thanked by the
homosexual-transgender lobby for his support of the Goodridge
ruling. And the New York Times later reported that, while running for
Governor in 2002, Romney had promised homosexual activists that he would not
work against the expected “gay marriage” ruling.
Governor Romney had a chance to exhibit genuine leadership
on the issue of judicial activism, but chose to cave to liberal sentiments and
donors. His unlawful implementation of "gay marriage" in
Massachusetts in May 2004 set a horrible precedent, and emboldened judicial tyrants
and sexual-radical activists around the country.
What's more, his current promises to protect traditional
marriage should be taken with a grain of salt. For all his talk, he has openly
supported “civil unions” – differing from marriage only in name. The proposed
federal marriage amendment he has pledged to support would not ban civil unions (and is unlikely to pass
in any case).
Had Mitt Romney just upheld his oath as Governor to protect
the Massachusetts Constitution and abide by the laws as enacted by the Legislature,
the marriage landscape across the country would likely be quite different now.
If Romney couldn’t stand up for constitutional government
and conservative values in Massachusetts, how can we trust him to stand up for
them in Washington?
Pro-family activist at March 2004 Constitutional
Convention demonstration. Protesting two of the most egregious examples of
judicial tyranny: Roe v. Wade, and Goodridge v. Mass. Dept. of Public
Health. (MassResistance photo)
Endnotes
Endnotes:
Chapter V
[1]
The legal analysis presented in this chapter and on the MassResistance web site
owes a huge debt to John Haskins, formerly with the Parents’ Rights Coalition
of Massachusetts, and Massachusetts Attorney “Robert Paine” (whose identity will
remain confidential for obvious reasons). Brian Camenker also deserves
tremendous credit for establishing the Article 8 Alliance, the only group opposing
a Constitutional amendment as the solution (practically or theoretically)
to a tyrannical judiciary, and advocating removal of the four rogue justices
who ruled for “gay marriage” in Goodridge.
[3] U. S. Senate Committee on
the Judiciary, testimony by Honorable Mitt Romney, Governor of Massachusetts [in
support of a federal marriage amendment], "Preserving Traditional
Marriage: A View from the States," June 22, 2004; http://myclob.pbworks.com/w/page/21956168/06-22-2004
(accessed Dec. 2011).
[5] Michael Luo, “Romney’s
Tone on Gay Rights,” op. cit.
[7] That may have something
to do with his Harvard Law School education. Note also that the Massachusetts
Constitution was written by John Adams and served as a model for the federal
Constitution. On why some Republicans or “conservatives” fall for the idea that
the Supreme Court (federal or state) is the final arbiter, see Pat Buchanan
(citing an essay by William Quirk), “The Supreme Court is not supreme,” TownHall.com,
July 6, 2003; http://townhall.com/columnists/PatBuchanan/2003/07/06/the_supreme_court_is_not_supreme
(accessed Dec. 2011).
[8] “The survey on Americans’
attitudes toward religion and homosexuality, taken by the Pew Forum on Religion
and Public Life nearly a month before the Massachusetts decision, showed 59
percent of the respondents opposed gay marriage. But only 10 percent said they believe
the Constitution should be amended to prohibit it, saying normal legislative
means would be enough.” Robert Marus, “Massachusetts court legalizes gay
marriage but stops short of issuing marriage licenses,” Associated Baptist
Press, November 18, 2003; http://www.abpnews.com/content/view/2672/116/
(accessed Dec. 2011). See also Steve LeBlanc, “Changing constitution not easy
in Massachusetts,” Associated Press, December 2, 2006 (no longer online).
[9] Mitt Romney, No
Apology: The Case for American Greatness (New York: St. Martin’s Press,
2010), Kindle ed., Location 5,258 and 5,954.
[10] Marc Ambinder, “Mitt
Romney’s Journey to the Right,” National Journal, February 9, 2007 (dead
link: http://www.nationaljournal.com/about/njweekly/stories/2007/0209nj1.htm). The
information-packed article has mysteriously disappeared from the web recently.
[11] Jonathan Darman and Evan
Thomas, “Governor Romney, Meet Governor Romney,” Newsweek, February 26,
2007 (dead link: http://www.msnbc.msn.com/id/17202400/site/Newsweek/38263228).
[12] Even the Boston Globe
recognized the oddity of this action. Scott Helman and Scott S. Greenberger,
“Some see conflict for Romney on gay marriage; Ceremonial licensing belies his
opposition,” Boston Globe, January 2, 2006; http://www.boston.com/news/local/massachusetts/articles/2006/01/02/some_see_conflict_for_romney_on_gay_marriage/.
(Some confusion has arisen due to the Globe’s use of the word
“licensing” and “license,” as these certificates are distinct from the actual
marriage licenses, which are issued by Town and City Clerks.) See statute MGL
Chapter 207, section 39, http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter207/Section39.
Current information on one-day designated wedding officiants is at “One Day
Marriage Designation Instructions,” unchanged since Romney was Governor, at http://www.mass.gov/governor/administration/legal/marriage/
(All accessed Dec. 2011.)
[14] “Massachusetts Marriage
Chaos; Gay Marriage a Reality in Massachusetts; No Opt-Out Clause for Justices
of the Peace,” Focus on the Family CitizenLink, July 2004:
After being assured in February that the justices
would be able file for conscientious-objector status, [a JP] was shocked to
hear Winslow say they couldn’t – and to hear an official from the state board
of discrimination warn that trying to get out of officiating same-sex
ceremonies could get them sued for $25,000 to $1 million.
Daniel Winslow emailed MassResistance to deny that
conscientious objector status was ever offered by his office (though he
said the rest of our original timeline, as published November 2006, was
correct). See email exchange below in Chapter V.
[19] See section “Romney’s
advisors” below for detail on Winslow.
[20] Frank Phillips and Rick
Klein, “Lawmakers are divided on response,” Boston Globe, November 19, 2003; http://www.boston.com/news/local/massachusetts/articles/2003/11/19/lawmakers_are_divided_on_response/.
See also Raphael Lewis, “Romney, AG take heat on marriage issue; Gay-rights
ruling is clear, law groups say,” Boston Globe, November 22, 2003; http://www.boston.com/news/local/massachusetts/articles/2003/11/22/romney_ag_take_heat_on_marriage_issue/.
(Both accessed Dec. 2011.) The Archdiocese recognized the Court’s authority by
its statement that an “extension to the 180-day deadline set by the SJC” needed
to be sought. Romney’s Legal Counsel was negotiating with Legislators on “how
to proceed.” Why does the Chief Executive Officer need to talk to Legislators
about whether or not he should implement an unconstitutional Court opinion?
From Lewis, “Romney, AG take heat”:
Three bar associations, a former state attorney
general, and several gay rights groups assailed Governor Mitt Romney and
Attorney General Thomas F. Reilly yesterday for saying that the Supreme
Judicial Court's landmark gay-marriage ruling was vague enough to allow
lawmakers to enact something short of full-fledged marriage for same-sex
couples. [emphasis added]
While most of the homosexual advocacy groups were focused on
the Legislature needing to act to confirm the ruling via statutes, one
of the most radical of GLBT organizations, the National Gay and Lesbian Task
Force, actually set its sights on Romney. They could care less what the Legislature
might do, because they believed the ruling was “law” already, and the Governor
must enforce it. (And they probably understood that the legislators were too
spineless to take meaningful action in any case.) NGLTF’s November 19, 2003
press release (no longer online) stated:
The National Gay and Lesbian Task Force yesterday
called upon Massachusetts Governor Mitt Romney to uphold his oath of office by
working to implement – rather than oppose – yesterday’s landmark court decision
… By saying he will do all that he can to prevent the issuance of marriage
licenses to same-sex couples, the Governor is violating his oath of office.
Under his oath, the Governor has only one option – to faithfully and agreeably
discharge all the duties incumbent on him under the state constitution – and
that means working to implement the decision. As important, he is falling into
the hands of those who will use this decision to divide the people of
Massachusetts and America. We urge him to step back and do his constitutional
duty.
Was the NGLTF also reminding Romney of his pledge to the Log
Cabin Republicans? They were certainly saying he had to be “agreeable” (to
them).
[21] Unruh, “Experts: Credit
Romney,” op. cit.
[22] Governor Mitt Romney,
testimony before the U. S. Senate Judiciary Committee, op. cit.
[24] Hugh Hewitt, “Just Say
‘No’; Calling Governor Romney and the elected representatives of Massachusetts,”
The Weekly Standard, November 20, 2003; http://www.weeklystandard.com/Content/Public/Articles/000/000/003/398rgioz.asp
(accessed Dec. 2011). Quoted with permission of The Weekly Standard.
Hewitt later accepted Romney’s commission to write a glowing biography in
anticipation of his run for the Republican Presidential nomination, A Mormon
in the White House? 10 Things Every American Should Know about Mitt
Romney (Washington, D. C.: Regnery Publishing, Inc., 2007). I sent Hewitt a
packet with the legal analysis and factual history prepared by John Haskins,
Atty. “Robert Paine,” Brian Camenker, and myself for his consideration while he
researched his book. Obviously, none of that information made it into his book.
And I never received a thank-you!
[25] Phyllis Schlafly, The
Supremacists: The Tyranny of Judges and How to Stop It (Dallas: Spence
Publishing Co., 2004), Chapter 3, “Judges Redefine Marriage,” p. 46.
[30] Commonwealth of
Massachusetts Constitution; http://www.malegislature.gov/laws/constitution.
See Primary documents section at the end of this chapter for excerpts and
links. See especially Part I, Articles X, XX, and XXX; and Part II, Chapter
III, Article V.
[33] Mark R. Levin, Men in
Black: How the Supreme Court Is Destroying America (Washington, D.C.:
Regnery Publishing, 2005), Chapter 5, “Justices in the Bedroom,” 83.
Unfortunately, Levin failed to examine the Massachusetts Constitution as it
applies to Goodridge.
[34] The SJC later confirmed
what it meant by this in its February 2004 advisory to the Senate: “The purpose
of the stay was to afford the Legislature an opportunity to conform the
existing statutes to the provisions of the Goodridge decision.”
Massachusetts Supreme Judicial Court, Opinions of the Justices to the Senate, SJC-09163,
February 3, 2004; http://news.findlaw.com/wp/docs/conlaw/maglmarriage20304.html
(accessed Dec. 2011).
[36] Marus, “Massachusetts
court legalizes gay marriage,” op. cit. See also quotes in Mitt
Romney’s Deception, Chapter IX from November 18, 2003 by Mary Bonauto (GLAD
attorney), Elizabeth Birch (Human Rights Campaign), Wendy Murphy (Massachusetts
attorney), Washington Times, Tony Perkins (Family Research Council),
etc.
[37] Pam Belluck, “Gays’
Victory Leaves Massachusetts Lawmakers Hesitant,” New York Times,
November 20, 2003; http://www.nytimes.com/2003/11/20/us/gays-victory-leaves-massachusetts-lawmakers-hesitant.html.
The National Review editors got it wrong on November 19, 2003 when they
wrote: “The court graciously grants the state legislature some time – 180
days – to alter state marriage law so that same-sex couples can get married. If
the Legislature does not make this alteration, however, the court will still
order county clerks to issue marriage license to same-sex couples.” Where
did they get that idea? The Court could not (and did not) order the clerks to
do anything. But NR shared the same attitude of inevitability the
liberal media was pushing. NR Editors, “The Left at the Altar; Goodridge
and its aftermath,” National Review, November 19, 2003; http://www.nationalreview.com/articles/208634/left-altar-editors.
(Both accessed Dec. 2011.)
[41] Short of full defiance,
Romney might also have acted as Professor Hadley Arkes suggested:
In the Goodridge case in Massachusetts, Romney
could have announced that he would respect the decision for the plaintiffs
allied in the case, but he might have pointed out that the case was not a
“class action.” He could have insisted then that clerks should issue licenses
of marriage only to couples who have come through comparable litigation and
received a comparable order from a court.
Though even this action would seem unlawful without action
by the Legislature, since the official marriage licenses were only intended for
opposite-sex couples (stating “bride” and “groom”). Professor Hadley Arkes,
“The Missing Governor: Have Republican leaders lost their confidence on basic
moral matters?” National Review, May 17, 2004; http://old.nationalreview.com/arkes/arkes200405170901.asp
(accessed Dec. 2011). See also Note 105, Chapter V for a critique of Arkes’s
point by Attorney J. Edward Pawlick. “If the court ruling is clearly illegal,
which it is, then it is not right to accord that status even in one case.”
[43] “Separate is seldom …
equal,” Boston Globe editorial, February 5, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/02/05/separate_is_seldom___equal/.
Raphael Lewis, “SJC affirms gay marriage; Court deems civil unions deficient,” Boston
Globe, February 5, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/02/05/sjc_affirms_gay_marriage/.
Rose Arce, “Massachusetts court upholds same-sex marriage,” CNN.com, February
6, 2004; http://www.cnn.com/2004/LAW/02/04/gay.marriage/.
(All accessed Dec. 2011).
[44] Elisabeth Beardsley,
“Pols urge civil unions over gay marriage,” Boston Herald, November 20,
2003; available at http://www.highbeam.com/doc/1G1-110366092.html.
Raphael Lewis, “Finneran cites three options on SJC Ruling,” Boston Globe,
December 5, 2003; http://www.boston.com/news/local/massachusetts/articles/2003/12/05/finneran_cites_three_options_on_sjc_ruling/.
(Both accessed Dec. 2011.) Frank Phillips, “Romney out front: Bush aides in
touch with Romney,” Boston Globe, February 13, 2004 (archive).
[47] Governor Mitt Romney, “One
Man, One woman: A citizen’s guide to protecting marriage,” Wall Street
Journal op-ed, February 5, 2004. (See lengthy excerpt below in this
chapter.) Romney wrote the WSJ op-ed before the Goodridge ruling came
down, according to Raphael Lewis, “Romney urges states to define institution,” Boston
Globe, February 6, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/02/06/romney_urges_state_to_define_institution/
(accessed Dec. 2011).
For a prominent law professor’s and legal scholar’s suggestion for a solution
via a new statute, see Professor Mary Ann Glendon and Professor Hadley Arkes, “Goodridge
Case Has Alternative to Gay Marriage,” Boston Herald op-ed,
January 8, 2004; available at http://www.MassResistance.org/docs/downloads/romney/Glendon_Arkes_oped_Goodridge_1-8-04.pdf (accessed Dec. 2011). In
2004, Mathew Staver of Liberty Counsel explained that passing a strong statute
would overturn the Court ruling, and offered a sample statute:
…the Legislature could pass a law expressly
stating that marriage is defined as the “union of one man and one woman” and
that courts have no authority to redefine or reformulate marriage in any other
manner. In Massachusetts the Legislature has such authority under the state
constitution. This unique authority is likely unavailable in most other states
because most other states do not expressly mention marriage in their
constitutions, and even those that do, do not expressly grant complete
authority over marriage to the Executive and Legislative branches. The
Legislature can, and should, take this action. In doing so, the Supreme
Judicial Court’s ruling would be overturned. This Legislative action would then
allow the time necessary to expressly amend the state constitution to ban
same-sex marriage. A sample legislative enactment could read as follows:
The definition of marriage in the state
constitution, as inherited from common law, is, and always has been, the union
of one man and one woman. Notwithstanding the Legislature’s limited grant of
authority to the Judiciary to preside over matters of divorce, alimony,
annulment and affirmation, no court has the authority to define, redefine,
reformulate or amend marriage to mean or be anything other than the union of
one man and one woman; and any attempt by the Judiciary is null and void ab
initio.
Mathew D. Staver, President and General Counsel, Liberty
Counsel, “An Overview of the Massachusetts Federal Court Rulings and the Next
Legal and Political Steps,” May 2004); http://www.lc.org/profamily/mass.htm and http://www.MassResistance.org/docs/downloads/romney/StaverMassJuly04.pdf.
(Both accessed Dec. 2011).
[48] LeBlanc, “Changing
constitution not easy,” op. cit.
[49] “Leadership needed on
gay wed licenses,” Boston Herald editorial, March 9, 2004.
[51] Frank Phillips and
Raphael Lewis, “Civil union law sought; Romney says move would satisfy the
SJC,” Boston Globe, November 20, 2003; http://www.boston.com/news/local/massachusetts/articles/2003/11/20/civil_union_law_sought/.
Did Romney cower at this threat? Or did he want to please his friends in the
GLBT community? Mary Breslauer was not only at HRC, she was a Bostonian
connected with GLAD and the “equal marriage” crowd – the same groups Mitt
Romney’s Log Cabin Republicans associated with. See HRC, “The Agenda” (radio
show), http://www.theagendaonxm.org/hosts/#mary.
She was (is?) a partner of Rebecca Haag, director of the AIDS Action Committee
of Massachusetts, to which Romney donated $10,000 in 2004. See Amy Contrada,
“Mass. Lesbian Extremists on Hillary Clinton's Campaign,” MassResistance blog,
September 27, 2007; http://MassResistance.blogspot.com/2007/09/mass-lesbian-extremists-on-hillary.html.
See also “Romney donated $10,000 to AIDS Action Committee in 2004,”
MassResistance, http://www.MassResistance.org/romney/aac_donation.html.
(All accessed Dec. 2011.)
[52] For example: Scott S.
Greenberger, “Officials, state legislators ponder their next moves,” Boston
Globe, February 5, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/02/05/officials_state_legislators_ponder_their_next_moves/
(accessed Dec. 2011):
If lawmakers approve the amendment … it will have
to be cleared by two successive Legislatures before appearing on the ballot in
2006. Administratively, there is little that would have to be changed in a move
to same-sex marriages. The marriage forms the Department of Public Health
currently distributes to city and town clerks use the words “bride” and
“groom,” but an agency spokeswoman said yesterday that “it will be prepared to
comply with the law come May 17.” Even the current forms would work with a few
small adjustments, [GLAD attorney] Bonauto said. “I don’t think it’s a terribly
complicated process to change the forms,” she said. “But if the forms aren’t
changed, people will do what they’ve always done with forms that don’t reflect
their reality: They’ll scratch the words out.” Rosaria Salerno, Boston’s city
clerk, agreed that the bureaucratic changes would not be difficult.”
See also Jennifer Peter, “Mass. Seeks Compliance on Gay
Weddings,” Associated Press, April 24, 2004: “The Massachusetts Supreme
Judicial Court ruled in November the state must begin issuing marriage licenses
to same-sex couples by mid-May, which means changes for clerks and justices of
the peace.”
[53] The Boston Globe reported
in 2006 that Romney kept a close watch on everything going on in his DPH. It
seems this would have carried over to marriage licenses:
Public appearances by agency officials, and even the
contents of some of their slide shows, are routinely reviewed by Romney
appointees, and the public health commissioner regularly consults with the governor
on matters he thinks could prove controversial. … Romney’s first public health
chief, Christine Ferguson, said she spoke regularly with the governor and had
occasional policy differences with him…
“Romney keeps tight rein on health dept,” Boston Globe,
September 10, 2006; http://www.boston.com/news/local/massachusetts/articles/2006/09/10/romney_keeps_tight_rein_on_health_dept/
(accessed Dec. 2011).
[55] Romney, “One Man, One
Woman: A citizen’s guide to protecting marriage,” op. cit.
[56] “Massachusetts governor
urges calm on same-sex issue,” CNN.com, March 12 2004; http://edition.cnn.com/2004/LAW/03/12/mass.gay.marriage/index.html
(accessed Dec. 2011). Note: While the online posting of this article now gives
the date “May 5, 2004,” it should be March 12, 2004, as the URL confirms. The
March date makes sense in context; the discussion is of the Legislature’s
actions regarding an amendment that took place in March (not May).
[57] “Romney denies gay
marriage training scheduled,” Associated Press, March 26, 2004.
[59] Ibid. Immediately
after the SJC ruling in November 2003, Crews and MFI essentially acknowledged
the SJC as the final arbiter concerning the schedule. Note that the Alliance
Defense Fund also adhered to this view of the Court’s pre-eminence:
Ronald A. Crews, president of the Massachusetts
Family Institute, which has been at the forefront of the fight here against gay
marriage, said his organization will work with Arizona-based Alliance Defense
Fund, a conservative Christian lawyers group that pledged to offer Crews its
legal services. Although they are still working out a strategy, Crews
said the lawyers will probably explore submitting a motion to the Supreme
Judicial Court seeking an indefinite delay, allowing the Legislature to vote on
a constitutional amendment defining marriage as the union between one man and
one woman.
Raphael Lewis, “Groups muster to fight gay marriage in
Mass.,” Boston Globe, November 20, 2003; http://www.boston.com/news/local/massachusetts/articles/2003/11/20/groups_muster_to_fight_gay_marriage_in_mass/
(accessed Dec. 2011).
[61] “Legal experts: Romney
has few options to block gay marriages in May,” Associated Press, March 31,
2004 (dead link:
http://www.boston.com/news/local/massachusetts/articles/2004/03/31/legal_experts_romney_has_few_options_to_block_gay_marriages
in_may/).
[62] Ron Crews quoted in
Michael Foust, “One month away: Mass. braces for ‘gay marriage’ May 17,” Baptist
Press, April 16, 2004; http://www.bpnews.net/bpnews.asp?id=18074
(accessed Dec. 2011).
One other option also appears dead – Romney
issuing an executive order telling clerks not to give marriage licenses to same-sex
couples. “He indicated ... in his press conference that he would not be doing
that,” Crews said. “He mentioned that that had been suggested to him. We
suggested that to him. We provided a legal brief for him [showing why] we
believe he does have a constitutional authority for that, but ultimately that’s
his call.”
See also Mathew Staver, “An Overview of the Massachusetts
Federal Court Rulings,” op. cit.
[64] For instance, Paul Martinek,
attorney and editor of Lawyers Weekly, told the Boston Globe,
“You have four members of the SJC who seem to feel pretty strongly that
[same-sex marriage] is a fundamental right. Why should they make it any easier
for the people who are lambasting their decision to get around their decision?”
Kathleen Burge and Frank Phillips, “Stay by SJC called unlikely,” Boston
Globe, March 13, 2004; http://www.boston.com/news/specials/gay_marriage/articles/2004/03/13/stay_by_sjc_called_unlikely/
(accessed Dec. 2011).
[65] Frank Phillips, “Reilly
says Romney lacks legal argument for a stay,” Boston Globe, March 31,
2004; http://www.boston.com/news/specials/gay_marriage/articles/2004/03/31/reilly_says_romney_lacks_legal_argument_for_a_stay/.
Raphael Lewis, “Romney seeks authority,” op. cit. Raphael Lewis, “Romney
chides legislature on gay marriage,” Boston Globe, April
24, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/04/24/romney_chides_legislature_on_gay_marriage/.
Cheryl Wetzstein, “Romney on path to bar same-sex 'marriage',” Washington
Times, April 18, 2004; http://www.washingtontimes.com/news/2004/apr/18/20040418-121302-3889r/.
“Romney’s end run,” Boston Globe editorial, April 16, 2004. Justice
Nolan’s letter to the legislators is available at http://www.MassResistance.org/docs/downloads/romney/NolanRomneySJC.pdf
. (All accessed Dec. 2011.)
[66] Lewis, “Romney seeks
authority,” op. cit.
[69] Lewis, “Romney seeks
authority,” op. cit.
[70] Arkes, “The Missing
Governor,” op. cit. Quoted with permission of National Review.
Arkes’s speculation on why Romney “receded again” may be the most generous
interpretation. See also Maggie Mulvihill and Steve Marantz, “Experts: End-run
Would be Dead End,” Boston Herald, March 31, 2004:
If Governor Mitt Romney decided to petition the
Supreme Judicial Court as a private citizen, it could pit Romney against
Attorney General Tom Reilly…. Any unconventional legal maneuver – such as
petitioning the Supreme Judicial Court as a private citizen – could pit
[Romney] against Attorney General Tom Reilly in a courtroom power struggle,
said Suffolk University Law professor Marc Perlin … “The Commonwealth of
Massachusetts is represented in cases by the attorney general. There is no way
around that,” Perlin said. “If Romney goes forward, there will be litigation as
to who has the authority to request the stay, and I believe Reilly would oppose
Romney and take issue with any attempt to go around him.”
[71] Lewis, “Romney seeks
authority, op. cit.
[75] Registrar Stanley E.
Nyberg’s letter is available at http://www.MassResistance.org/docs/downloads/romney/Nyberg_to_Town_Clerks_4-14-04.pdf (accessed January 15, 2011).
Nyberg wrote to Town and City Clerks:
In light of the first step the Legislature has
taken to amend the Constitution to define marriage as the union of a man and a
woman, the Governor has proposed seeking a further stay of the ruling until the
amendment process is complete. However, the Executive Branch continues to
prepare for every contingency, including the issuance of marriage licenses to
same-sex applicants beginning in May. The Registry … is in the process of
preparing materials for readiness prior to the currently scheduled
implementation date, May 17, 2004 … working closely with the Department of
Public Health Office of the General Counsel to resolve legal questions, provide
clear guidance, and to develop sound policy and procedure to correctly comply
with this ruling.
[76] Kathleen Burge,
“Justices of the peace confront dilemmas on gay marriage,” Boston Globe,
April 18, 2004; http://www.boston.com/news/local/articles/2004/04/18/wedding_quandaries/
(accessed Dec. 2011). Note that at this time, the Boston Globe reporter
doubted Romney would take action against a dissenting JP (as there was “no
definitive legal ruling”). That was before his Chief Legal Counsel told the JPs
they could not refuse, and if they did, they could face firing and/or a
fine. From the report:
Although there has been no definitive legal ruling,
many observers believe that justices of the peace cannot refuse to marry
couples because they are gay…. In Massachusetts, justices of the peace are
appointed by the governor and confirmed by the Governor’s Council for
seven-year terms. Their number is limited…. The state constitution gives the
governor, with the consent of the governor’s council, the right to remove
justices of the peace. But since Romney opposes gay marriage, observers
doubt he would seek to remove those who refuse to perform same-sex weddings.
There is little legal precedent for taking action against justices of the peace,
[Harvard Law School Professor and Justice of the Peace Jonathan] Zittrain said.
A gay couple turned down by a justice of the peace could possibly seek a court
injunction against the justice, he said. [Emphasis added.]
[77] Testimony by Honorable
Mitt Romney, U. S. Senate Committee on the Judiciary, June 22, 2004; op.
cit.
[79] Jennifer Peter, “Justices
of the peace warned not to discriminate against same sex couples,” Associated
Press, April 25, 2004; http://MassResistance.org/romney/articles/AP_042504.html
(accessed Dec. 2011). See also Elisabeth J. Beardsley, “Mitt: I’ll
uphold law; Gov, JPs brace for gay marriages,” Boston Herald, April 26,
2004.
[82] Training slides as saved
from the GLAD web site in 2005 are available at: http://www.MassResistance.org/docs/marriage/romney/town_clerk_instructions_apr2004.pdf.
GLAD’s PDF is still available at WayBack Machine, http://web.archive.org/web/20040507043000/http://www.glad.org/marriage/town_clerk_instructions.pdf.
(Both accessed Dec.2011.)
For quite a while after May 2004, the online “Massachusetts Law Library”
(via the Suffolk University Law School web site) posted the Massachusetts “law”
on same-sex marriage as consisting of the Goodridge ruling, the unchanged
marriage statute (Ch. 207, still reading “husband/wife”), and the PDF of the
training slides used by Romney’s Legal Counsel at these sessions. The WayBack
Machine’s first posting of the slides on GLAD’s web site is from May 7,
2004, two days after Chief Legal Counsel Dan Winslow is known to have given a
training session.
Most curiously, the Law Library site linked to these slides on
the GLAD web site (Gay & Lesbian Advocates & Defenders – the
attorneys who argued for same-sex marriage before the Massachusetts courts).
Why didn’t it link to the Executive Office Legal Counsel? Had Winslow not
prepared the slides? Was GLAD working directly with Romney’s legal office?
Romney did announce shortly after the ruling that he would be working with “community
leaders” to formulate a “statute … consistent with the law” – i.e., the ruling.
Who were those “community leaders”? No statute ever came out of that
effort, but these slides appeared and have substituted for a new statute. Was
he also working with “community leaders” to figure out how to implement
same-sex marriage? This question is all the more intriguing in light of
Winslow’s endorsement by the GLBT lobby in 2010 (when he was a candidate for
State Representative) – as a “thank you” for his “support of the Goodridge
decision” in 2004. (See Note 82 for link, and detail on Winslow below in this
chapter.)
See also Yvonne Abraham and Scott S. Greenberger, “2 Senators would let
gay outsiders wed,” Boston Globe, May 6, 2004 (archive), or http://www.highbeam.com/doc/1P2-7843151.html.
On Town Clerk training, see also Thomas Caywood, “Mitt: I’ll Uphold law; Clerks
warned they’d better comply,” Boston Herald, April 26, 2004.
[86] John McElhenny,
“Gay-marriage license rules sought; Out-of-state queries best clerks’ offices,”
Boston Globe, April 12, 2004 (archive). Two years later (in 2006), the
SJC would uphold this residency requirement as constitutional. The Legislature
would later repeal the “1913 law” in 2008. Elizabeth Mehren, “Massachusetts
Curb on Gay Marriage Upheld,” Los Angeles Times, March 31, 2006; http://articles.latimes.com/2006/mar/31/nation/na-marry31
. Joanna Grossman, “Will the State of Massachusetts Ever Permit Same-Sex
Out-of-Staters to Marry?” FindLaw, April 10, 2006; http://writ.news.findlaw.com/grossman/20060410.html.
(Both accessed Dec. 2011.)
[88] “Same-sex couple flaunts
‘open marriage’; Family defenders say court battle in Massachusetts not over,” WorldNetDaily,
May 18, 2004; http://www.wnd.com/news/article.asp?ARTICLE_ID=38537.
Shaun Sutner, “Clerk ‘thrilled’ by Menino’s gay rites stand; Plan to ignore
residency law,” Worcester Telegram and Gazette, May 4, 2004; http://www.bc.edu/schools/law/fac-staff/facultynews/2004-archive/51104.html.
Pam Belluck, “Governor Moves on Non-Massachusetts Couples,” New York Times,
May 19, 2004; http://www.nytimes.com/2004/05/19/national/19marry.html.
(All accessed Dec. 2011.)
[89] Yvonne Abraham,
“Gay-marriage rules eased: Romney aide says clerks have discretion on residency
proof,” Boston Globe, May 5, 2004; http://www.boston.com/news/local/articles/2004/05/05/gay_marriage_rule_eased/.
Abraham and Greenberger, “2 Senators would let gay outsiders wed,” op. cit. Elizabeth
Mehren, “Massachusetts Governor Backs Off in Gay Marriage Squabble,” Los
Angeles Times, May 6, 2004; http://articles.latimes.com/2004/may/06/nation/na-marriage6.
(Both accessed Dec. 2011.)
[90] “Mass. warns of SSM
reprisals,” Associated Press, May 4, 2004; http://www.marriagedebate.com/2004/05/mass_108370064162290100.htm.
Attorney General Reilly said he agreed with Romney’s interpretation of the 1913
law: “Massachusetts moves to stop out-of-state gay marriages,” PBS.org, May 21,
2004; http://www.pbs.org/newshour/updates/gaymarriage_05-21-04.html.
See also Yvonne Abraham and Raphael Lewis, “Romney turns to AG for halt to
licensing,” Boston Globe, May 21, 2004; http://www.boston.com/news/local/articles/2004/05/21/romney_turns_to_ag_for_halt_to_licensing/.
(All accessed Dec. 2011.)
[91] “ADF files civil action
against Massachusetts clerks issuing illegal ‘marriage’ licenses,” Alliance
Defense Fund, May 26, 2004 (dead link: http://www.alliancedefensefund.org/Home/ADFContent?cid=2741).
See ADF’s “Marriage Map” noting their later 2006 “victories” in Massachusetts: Cote-Whitacre
v. Department of Public Health (homosexual attorneys had challenged the
Massachusetts statute blocking marriage of unqualified out-of-state couples);
and their arguments to let the VoteOnMarriage amendment effort go forward; http://oldsite.alliancedefensefund.org/userdocs/MarriageMap.pdf
. ADF acknowledges their “loss” in Goodridge on this map. ADF’s “DOMA
Watch” page links to the various court proceedings related to same-sex
marriage in Massachusetts from 2001-2004; http://www.domawatch.org/stateissues/massachusetts/goodridge.html.
(Both accessed Dec. 2011.)
[92] Christine MacDonald and
Bill Dedman, “About 2,500 gay couples sought licenses in 1st week,” Boston
Globe, June 17, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/06/17/about_2500_gay_couples_sought_licenses_in_1st_week/
(accessed Dec. 2011). From that report:
There were a total of 2,468 applications from
same-sex couples. The couples traveled from all over the nation, though not in
the flood that some had expected. At least 164 out-of-state couples came to
Massachusetts to get married, from 27 states and Washington, D.C…. One month
later, not all of those marriages are sure to be legal. Among the
out-of-staters, 56 couples wrote on their applications that they do not intend
to move to Massachusetts, apparently violating residency rules set out by
Governor Mitt Romney. Those couples applied in the four towns that were openly
defying the governor Provincetown, Somerville, Springfield, and Worcester and
in Attleboro, which was doing so quietly. But now those dissenting clerks have
joined the majority, following Romney's interpretation of state law by accepting
applications from out-of-staters only if they declare an intention to
move here. Still, the only proof required is the couple's word. A Missouri
couple who got their license in Springfield won't be moving here anytime soon…
[emphasis added]
[93] Helman and Greenberger,
“Some see conflict for Romney on gay marriage; Ceremonial licensing belies his
opposition,” op. cit. Some confusion has arisen due to the Globe’s use
of the word “licensing” and “license,” as these certificates are distinct from
the actual marriage licenses, which are issued by Town and City Clerks.
[95] As told to the author by
activists in direct contact with these Catholic attorneys, or themselves
involved in research or discussions with Catholic Conference staff. The source
on Alliance Defense Fund (ADF) attorneys is still confidential, though the
information is documented. ADF’s attorney Glen Lavy would later defend Romney’s
actions: See John Haskins and “Robert Paine,” Esq., “Response to Alliance
Defense Fund attorney’s attacks re: findings on Romney and ‘gay marriage’ in
Massachusetts,” MassResistance, October 2006; http://massresistance.org/docs/marriage/romney/lavy_email.html
(accessed Dec. 2011). ADF did not join the group urging Romney to correct his
error before the end of his term.
[96] Staver, “Overview of the
Massachusetts Federal Court Rulings,” op. cit. See also Note 62,
confirming that Ron Crews (Massachusetts Family Institute, presumably working
with Alliance Defense Fund) gave Romney a brief explaining the Governor’s and
Legislature’s authority over marriage.
[99] According to Jim
Rappaport, conservative former head of the Massachusetts Republican Party and
Lt. Gov. candidate squeezed out by Romney in 2002 (to make way for Romney’s
pick, Kerry Healey). Quote in Jessica Fargen, “Attack on gay marriage – Gov
blasts Bay State in his own backyard,” Boston Herald, October 16, 2006.
Also from that report:
One protester said Romney was disingenuous when
he ran for office, and now is only focused on his next post. “He’s cowtowing
[sic] to the far right,” said Margaret Williams, 47, of Jamaica Plain, who
married her girlfriend under the state’s gay marriage law.
Romney’s appearance at the FRC event infuriated the
homosexual activist groups across the country, including MassEquality, PFLAG, Religious
Coalition for the Freedom to Marry, and the National Gay and Lesbian Task
Force. See Ethan Jacobs and Laura Kiritsy, “Queen of Darts,” Bay Windows,
October 12, 2006; http://www.baywindows.com/index.php?ch=news&sc=glbt&sc2=news&sc3=&id=69576.
See also “RCFM to hold event on eve of Liberty Sunday,” Bay Windows,
October 5, 2006; http://www.baywindows.com/index.php?ch=news&sc=glbt&sc2=news&sc3=&id=69465.
(Both accessed Dec. 2011.)
[100] Governor Mitt Romney,
speech at Family Research Council’s “Liberty Sunday,” op. cit. (October
15, 2006). Note that the FRC version of his speech starts, “I began a few
minutes ago…” indicating that this is his second run-through, after an
audio “glitch” forced him to start over. The power to his microphone was
mysteriously disconnected and Romney had to start his speech over again – while
it was being simulcast to a national audience. What may have happened
was that the power cord was pulled intentionally because an activist – who had
been handing out a MassResistance flyer to the crowd (explaining Romney’s
responsibility for implementing same-sex marriages) – shouted out in response
to Romney blaming the “activist judges” for same-sex “parent” demands to change
birth certificates. (The shout-out “No!” is audible on the podcast at
AmericanRhetoric.com; http://www.americanrhetoric.com/speeches/mittromneyliberty.htm.)
The activist believes that the power disruption coincided with his being
escorted out of the church. (Since the podcast runs smoothly for the whole
speech, it may have spliced the first and second run-throughs.)
FRC has recently removed the transcript of Romney’s remarks from its site
(though it is still available at WayBack Machine; http://web.archive.org/web/20061018192925/http://www.frc.org/get.cfm?i=LH06J04.)
Other postings of transcripts are http://evangelicalsformitt.org/2006/10/the-governors-remarks-at-liberty-sunday
and http://www.americanrhetoric.com/speeches/mittromneyliberty.htm.
The version on those two posts begins differently from the FRC transcript: “Welcome
to this historic city. The authors of liberty recognized a Divine Creator…”
Romney relied heavily on MassResistance’s exclusive reporting on the Lexington
parents’ case in this speech (http://www.MassResistance.org/docs/parker/),
though he had given no time to our group’s concerns during his previous four
years in office. Perhaps he became more interested because the second couple to
join the lawsuit, whose son was given King & King to read, were
members of his Mormon community.
See also Maria Cramer, “Broadcast condemns same-sex marriage; Romney urges
evangelical fight,” Boston Globe, October 16, 2006; http://www.boston.com/news/local/articles/2006/10/16/broadcast_condemns_same_sex_marriage/.
(All accessed Dec. 2011.) See also Ethan Jacobs, “Liberty Sunday a dramatic
hatefest,” Bay Windows, October 19-25, 2006 (not available online). Note
that for all Romney’s conciliatory efforts, the Boston GLBT newspaper still
refers to the event as a “hatefest.”
[101] Jacobs, “Liberty Sunday
a dramatic hatefest,” op. cit. Their photo caption read, “Gov. Mitt
Romney used Liberty Sunday to connect with the conservative Christian audience,
an audience he has aggressively courted in the run-up to a presumed run for the
White House.”
[103] Jesse Noyes, “Romney
plays to right-wingers with blog ads,” Boston Herald, January 5, 2007.
[104] Ambinder, “Mitt
Romney’s Journey to the Right,” op. cit.
[105] Arkes, “The Missing
Governor,” op. cit. Quoted with permission of National Review.
The late J. Edward Pawlick, Esq. (founder of Lawyers Weekly and later
editor of Massachusetts News) added an important comment to the mix. He
did not agree with Arkes on one point. Arkes wrote:
In the Goodridge case in Massachusetts, Romney
could have announced that he would respect the decision for the plaintiffs
allied in the case, but he might have pointed out that the case was not a
"class action." He could have insisted then that clerks should issue
licenses of marriage only to couples who have come through comparable litigation
and received a comparable order from a court.
Pawlick commented that he [“one expert”] …
disagrees with part of Prof. Arkes [May 17, 2004
commentary]. He questions whether the governor should recognize the case at
all, using the following logic: If the court ruling is clearly illegal, which
it is, then it is not right to accord that status even in one case. And such a
concession would be used by countless judges to enforce equal protection under
the law. Also, Lincoln was merely choosing not to interfere in what was the law
of the land, whereas in this case, the court has issued an illegal order
contradicting the law of the land. So the governor has even more reason to
resist it.
See J. Edward Pawlick, “A Clear-Minded Analysis of What
Romney Should Have Done – and Still Can Do,” Massachusetts News, May 18,
2004; http://www.massnews.com/2004_editions/05_may/051804_Hadley_Arkes.htm
(accessed Dec. 2011).
[106] Tom Lang was one of the
ringleaders of the disruptive counter-protest in Worcester where VoteOnMarriage
was holding a peaceful, permitted rally in December 2006. See video #3 here: “Homosexual
activists disrupt peaceful pro-marriage rally,” MassResistance, December 2006; http://www.MassResistance.org/docs/events06/worcester_1216/index.html.
Lang is in the dark sweater with glasses holding the sign, “Michelangelo was
gay.” Lang was also captured on MassResistance video (unpublished) at the
Liberty Sunday event where Romney spoke (October 15, 2006) carrying a sign:
“Romney a Disgrace.”
Lang is one of my favorite characters in this saga. His
connections are so high level (money talks) that he even had his North
Shore mansion (“villa”) displayed in the Boston Globe, complete with a
photo of him with his “husband” (aka the Blond Bombshell) playing with their
dog in the grand hall – where they no doubt held their parties (e.g., their
“wedding,” as celebrated by Boston Herald columnist Margery Eagan.) See:
Amy Contrada, “Homofascist Intimidation HQ Villa Celebrated in Boston Globe,”
MassResistance blog, November 28, 2008; http://massresistance.blogspot.com/2008/11/homofascist-intimidation-hq-villa.html
(includes photos). Amy Contrada, “Finneran-Lang-Eagan Axis of Evil,” MassResistance
blog, June 28, 2007; http://MassResistance.blogspot.com/2007/06/finneran-lang-eagan-axis-of-evil.html.
(All accessed Dec. 2011.)
[107] Tom Lang,
“Massachusetts Gay Lobby Endorses Mitt Romney's Attorney,” KnowThyNeighbor.org,
op. cit. Winslow thanks Lang for his post and MGLPC’s endorsement in the
“comments” section. Apparently, Winslow has no problem with the behavior seen
in the Worcester event video in Ibid. And he apparently has no problem
with his former boss, Governor Mitt Romney, being called a “bigot” and a
“disgrace” by these endorsers.
[108] This confirms my
analysis of a glaring problem in the Town Clerk training slides that
civil-unions polygamy was (and still is) possible under the “training slides”
from Winslow’s office. (There is no law to refer to; these training
slides are the only record of “regulations” we can find.) Winslow, as a State
Representative in 2011, filed a bill in to correct this problem. This
perfectly illustrates why the Constitution requires that laws be passed by a
deliberative body (the Legislature), not hastily thrown together by
unauthorized staffers with an agenda.
[109] In Camenker’s and my
possession. They never have gotten together for that friendly lunch Winslow
proposed (at the end of his last message) …
[111] For example, April
Powell-Willingham (in Romney’s legal office during 2003-2004) and Melissa Davis
(in 2006). It is not known if they worked on the same-sex marriage issue, but
their presence on the Governor’s staff shows that Romney welcomed a
social-liberal viewpoint. Powell-Willingham had been director of the Brandeis
University “Program in Ethics, Inclusion, and Social Justice.” Davis was a
donor to Jane Doe, Inc. (radical feminist group) and Home for Little Wanderers
(which places children with homosexuals and transgenders, and runs a youth home
for “transgender” teens, among other socially liberal causes).
[112] Explained in the Boston
Herald op-ed by Glendon and Arkes, “Goodridge Case Has Alternative to Gay
Marriage,” op. cit. Glendon also contributed to legal analyses
for the Massachusetts Catholic Conference, e.g. as co-author of a critique of
the compromise amendment (which Romney supported): “Legal Analysis of the
Finneran-Travaglini Amendment,” Memorandum to Massachusetts Catholic Conference,
March 5, 2004; http://www.cwfa.org/images/content/MCCOpinion.pdf
(accessed Dec. 2011).
[114] Dick Lehr, “Mary Ann
Glendon: Writing her own party line; Recruited by the Vatican, rebuffed by
Bush, the Harvard Law prof defies definition,” Boston Globe, December
11, 1996 (archive); or http://www.highbeam.com/doc/1P2-8394385.html
(accessed Dec. 2011). Glendon was later appointed by President George W. Bush
as U.S. Ambassador to the Vatican.
[115] “Tom Reilly's ‘Pretty
Damn Good’ Gay Rights Record,” BlueMassGroup.com, August 25, 2006; http://www.bluemassgroup.com/showDiary.do?diaryId=3398.
We know of at least one Assistant Attorney General who at that time was (and is
still) a gay-rights activist: Rob Quinan, whose “wedding” photo (to another man)
appeared in the Boston Globe (Weddings, May 29, 2005, G20). In the late
1990s, Quinan was a co-chair of the Massachusetts Lesbian and Gay Bar
Association. (SJC Justice Margaret Marshall, later Chief Justice, was keynote
speaker at their 1999 annual dinner.) Jeff Epperly, “We can look out for our
own interests,” Bay Windows, May 13, 1999; http://www.baywindows.com/index.php?ch=news&sc=glbt&sc2=news&sc3=&id=70195.
Quinan wrote an article in the MLGBA newsletter against the 2001-2002
Massachusetts marriage amendment. From Massachusetts News:
Founded in 1985, the purpose of the MLGBA is to
promote homosexuality in all areas of the legal community. It is a resource to
anyone who is working in the courts on homosexual issues.… It was quick to jump
against the Protection of Marriage Amendment with its many lawyer volunteers.
For example, after Atty. Gen. Tom Reilly certified the Amendment to go on the
ballot, it had an in-depth report in its monthly newsletter from a “longtime”
Board member of MLGBA, Asst. Atty. General Rob Quinan.
J. Edward Pawlick, “Why Mass. Politicians, Such as Sen.
Birmingham, Yield To Homosexual Money and Power,” Massachusetts News,
February 2003; http://www.massnews.com/2003_Editions/2003_Print_Editions/02_Feb/020103_mn_why_mass_politicians_yield.shtml.
(All accessed Dec. 2011.)
[116] On Guerriero and Gill’s
money in the Massachusetts legislature, see Amy Contrada, MassResistance blog,
“Who is Patrick Guerriero,” Aug. 11, 2006; http://MassResistance.blogspot.com/2006/08/who-is-patrick-guerriero.html;
“Did Gill Foundation's Millions Defeat Marriage Amendment?” June 23, 2007; http://MassResistance.blogspot.com/2007/06/did-gill-foundations-millions-defeat.html;
“Tim Gill's Donations to Mass. Legislators in 2004,” July 29, 2007; http://MassResistance.blogspot.com/2007/07/tim-gill-open-donor-to-mass-legislators.html.
Raphael Lewis, “Gay rights groups fund ad campaign; Effort targets marriage
bill,” Boston Globe, February 2, 2004 (archive); or http://www.highbeam.com/doc/1P2-7833278.html. (All
accessed Dec. 2011.)
[117] John J. Miller,
“Matinee Mitt: The governor of Massachusetts may soon be appearing in a
(political) theater near you,” National Review, June 3, 2005; http://old.nationalreview.com/miller/miller200506031216.asp
(accessed Dec. 2011). The hyper-focus on out-of-state couples (to the neglect
of the core constitutional issues) is discussed below.
[118] Ambinder, “Mitt
Romney’s Journey to the Right,” op. cit. Romney donated $25,000 to the
Heritage Foundation in December 2005. Heritage also helped Romney design his
disastrous health care plan for Massachusetts, including mandated coverage.
David D. Kirkpatrick, “In Romney’s Bid, His Wallet Opens to the Right,” New
York Times, March 11, 2007; http://www.nytimes.com/2007/03/11/us/politics/11romney.html.
“Massachusetts Health Care Reform,” Heritage Foundation, January 26, 2006
(includes Romney and Heritage Foundation PowerPoint presentation on the plan); http://www.heritage.org/Events/2006/01/Massachusetts-Health-Care-Reform.
(Both accessed Dec. 2011.)
[119] Matthew Spalding, Ph.D.,
“A Defining Moment: Marriage, the Courts, and the Constitution,” Heritage
Foundation, May 17, 2004; http://www.heritage.org/research/reports/2004/05/a-defining-moment-marriage-the-courts-and-the-constitution.
See also “Matthew Spalding, Ph.D.” at http://www.heritage.org/About/Staff/S/Matthew-Spalding:
Matthew Spalding connects the principles of
America's founding with today's thorniest issues as Director of the B. Kenneth
Simon Center for American Studies at The Heritage Foundation. Spalding, a
constitutional scholar and authority on American political thought and
religious liberty, also serves as project leader of Heritage's First Principles
initiative.
(Both accessed Dec. 2011.)
[120] Ambinder, “Mitt
Romney’s Journey to the Right,” op. cit.
[121] Miller, “Matinee Mitt,”
op. cit.
[122] Mitt Romney, “One Man,
One Woman: A citizen’s guide to protecting marriage,” op. cit. Reprinted
by permission of Wall Street Journal, Copyright © 2004, Dow Jones &
Co., Inc. All Rights Reserved Worldwide. License number 2620420482448. See
also “Romney, Bush contend some judges go too far,” Boston Globe, October
20, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/10/20/romney_bush_contend_some_judges_go_too_far/
(accessed Dec. 2011). Raphael Lewis, “Romney urges states to define
institution,” op. cit. The latter article reports that Romney wrote this
op-ed before the Goodridge ruling came down.
[123] Ambinder, “Mitt
Romney’s Journey to the Right,” op. cit. Lewis, “Romney urges states,” op.
cit. Frank Phillips and Raphael Lewis, “Finneran seeks to delay start of
gay marriages,” Boston Globe, February 6, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/02/06/finneran_seeks_to_delay_start_of_gay_marriages/.
See also Glendon and Arkes, “Goodridge Case Has Alternative to Gay Marriage,” op.
cit. (Note 47). Glendon was advising the Governor in January and
February when the original Travis (“MA & PA”) amendment (which would have
banned same-sex marriage and civil unions) was before the Legislature.
She apparently favored removal of its last four words (banning any “legal
equivalent” of marriage for same-sex couples), which would allow the
Legislature to eventually create civil unions. If that is so, it would confirm
Professor Dershowitz’s assessment of her as “moderate.” (See Chapter VI.)
[124] Staver, “An Overview of
the Massachusetts Federal Court Rulings,” op. cit. Arkes, “The Missing
Governor,” op. cit.
[125] Text of Bills H653 and
H654 at “Article 8 Alliance/Parents’ Rights Coalition gets four important bills
filed in the Mass. Legislature,” Article 8 Alliance, January 2005; http://www.article8.org/docs/general/new_bills_2005.htm
(accessed Dec. 2011). Romney would not have liked our marriage definition bill
because it would have outlawed civil unions. And H654 would have angered him,
since it would have declared all the same-sex “marriages” since May 17, 2004
null and void, as they were lacking statutory authority. That would have
injured the “tender emotions and sentiment” of those couples. (Romney quote at “Massachusetts
governor urges calm,” CNN.com, op. cit. Romney also used the phrase
“tender sentiment” in his letter dated April 15, 2004. See Chapter VII.)
[126] Statement below from
the GLAD web site in 2006 (dead link: http://www.glad.org/marriage/massmarriage_faq.shtml).
It gives a peek at the way GLAD approached this case, with no reference to the
clear separation of powers and authority as defined in the Massachusetts
Constitution. GLAD said the Legislature must somehow act on the statute
in response to the Goodridge “mandate” – and even if they do not, new
marriage licenses will still appear. (GLAD makes no mention of the Governor.)
When can same-sex couples get married in
Massachusetts? The Court stayed the entry of final judgment (delayed the
date it takes effect) for 180 days. Thus, 180 days from the date of the
decision (i.e., May 17, 2004), city and town clerks will be able to issue
licenses to qualified marriage applicants regardless of sex.
Why did the Court stay the decision
(delay the date it takes effect) for 180 days? The Court stayed judgment
“to permit the Legislature to take such action as it may deem appropriate in
light of this opinion.” Stays are not unusual and often, as here, provide a
window of time for the Legislature to conform its laws with a Court decision.
In this case, for example, the Legislature may rid from the licensing laws and
other laws associated with marriage any gender-specific language. However,
because even gender-specific laws are supposed to be interpreted neutrally
(unless the context suggests otherwise), the Legislature need not take any
action to effectuate the Court’s declaration of constitutional rights.
Can the Legislature use the 180 days to
enact legislation denying same-sex couples the right to marry? No.
While the Legislature is free to act as it believes appropriate, it has no
power to continue denying marriage rights to same-sex couples. Any legislative
action must comport with the constitutional ruling from the Court, so any
attempt to re-write discrimination into the marriage laws is a dead letter.
Just as Phyllis Schlafly had warned during the national
debate on the ERA (Equal Rights Amendment: no discrimination on the basis of
sex), GLAD is claiming that mention of “husband/wife” in the Massachusetts has
no sex-specific (or as they now say, “gender-specific”) meaning! Schlafly, The
Supremacists, op. cit., pp. 38-39.
[128] Yvonne Abraham, “Free
to marry; Historic date arrives for same-sex couples in Massachusetts,” Boston
Globe, May 17, 2004; http://www.boston.com/news/local/articles/2004/05/17/free_to_marry/.
Frank Phillips, “Romney keeps low profile, but reiterates that voters should
decide issue,” Boston Globe, May 18, 2004; http://www.boston.com/news/specials/gay_marriage/articles/2004/05/18/romney_keeps_low_profile_but_reiterates_that_voters_should_decide_issue/.
(Both accessed Dec. 2011.) Phillips notes Professor Hadley Arkes’s article:
The National Review, a conservative
journal, yesterday published a scathing attack on Romney. The article, written
by Hadley Arkes, a University of Massachusetts [sic; Arkes was (and is) at
Amherst College] political science professor, criticizes him for not invoking
the powers of his office to impound all gay marriage licenses until the
Legislature set a policy on the issue. The article questions whether Romney and
other GOP leaders have “lost their confidence in basic moral matters.”
See also Rick Klein, “Groups hold out for public furor
before acting,” Boston Globe, May 18, 2004; http://www.boston.com/news/specials/gay_marriage/articles/2004/05/18/groups_hold_out_for_public_furor_before_acting/;
and Yvonne Abraham, “Gay marriage opponents see fight getting tougher,” Boston
Globe, May 14, 2004; http://www.boston.com/news/specials/gay_marriage/articles/2004/05/14/gay_marriage_opponents_see_fight_getting_tougher/.
Photos from May 17, 2004 at “First Day of Gay Marriage,” Boston Globe,
May 18, 2004; http://www.boston.com/news/special/gay_marriage/multimedia/wedding_day/ag_600_ssm_licenses.html.
(All accessed Dec. 2011.)
[129] “Address by the
Honorable Mitt Romney, Governor, Commonwealth of Massachusetts,” The Federalist
Society, November 10, 2005; http://www2.nationalreview.com/corner/romneyaddress.pdf.
Romney would be giving the Federalist Society a combined $35,000 in 2005 and
2006. Kirkpatrick, “In Romney’s Bid, His Wallet Opens,” op. cit. Scott
Helman, “Romney rips SJC’s justices on values; Says personal views swayed
marriage ruling,” Boston Globe, November 11, 2005; http://www.boston.com/news/local/articles/2005/11/11/romney_rips_sjcs_justices_on_values/.
(Both accessed Dec. 2011).
[130] “Address by the
Honorable Mitt Romney,” The Federalist Society, op. cit.
[132] Arkes, “The Missing
Governor,” op. cit. (Quoted with permission of National Review.)
[136] Hewitt, “Just Say
‘No’,” op. cit.
[137] The letter is at http://www.MassResistance.org/docs/marriage/romney/dec_letter/letter.pdf.
See WorldNetDaily, “Romney created ‘gay’ marriage, family groups say;
They had written to ask governor to reject ‘unconstitutional’ court ruling,” January
16, 2007; http://www.wnd.com/news/article.asp?ARTICLE_ID=53787.
(Both accessed Dec. 2011.) The letter’s primary author was John Haskins. I
delivered it to the Governor’s State House office. (The Governor’s Chief Legal
Counsel acknowledged receipt of the letter via phone a few days later.)
Signers included: Paul Weyrich of Free Congress Foundation; Sandy Rios of
Culture Campaign (formerly Concerned Women for America); Robert Knight, CWA
Culture & Family Institute (who drafted the federal Defense of Marriage Act);
Linda Harvey of Mission America; Paul Likoudis of The Wanderer; Rev. Ted
Pike of the National Prayer Network; Randy Thomasson of California Campaign for
Children and Families; Peter LaBarbera of Americans for Truth about
Homosexuality; Gary Glenn of American Family Association of Michigan; David E.
Smith of the Illinois Family Institute; Joe Glover of the Family Policy
Network; Dr. Scott Lively of DefendTheFamily.com; Dr. Chuck Baldwin, columnist
and radio show host; Bill Cotter, Operation Rescue Boston; Rev. Stephen Bennett
of Stephen Bennett Ministries; R. T. Neary, Pro-Life Massachusetts; Rev.
Michael Carl, Constitution Party of Massachusetts; Phil Lawler, Catholic
World News; Brian Camenker of MassResistance; and John Haskins of the
Parents’ Rights Coalition.
Haskins was at that time also lobbying Romney through the Governor’s close
personal friend, Tom Shields (who was on the Board of Massachusetts Family
Institute and headed its associated Coalition for Family and Marriage). Haskins
had even given Shields a draft speech for the Governor to use to explain his
change of policy if he had decided to overturn same-sex marriage.
These actions by MassResistance leaders and writers were partly an outgrowth of
our meeting with Romney’s Deputy Chief of Staff, Peter Flaherty, in May 2006
when we pushed for action before the end of Romney’s term (early January 2007).
We had specifically demanded that the Governor overturn same-sex marriage and
disband the Commission on Gay and Lesbian Youth. We had promised to make it a
national story if the Governor did not do the right thing. (Chapter IV in Mitt
Romney’s Deception details the story of the Commission on Gay and Lesbian
Youth, and our meeting with Flaherty.)
[138] Romney’s 2007 campaign web
site www.MittRomney.com: “The Romney Record: A record of protecting traditional
marriage”; http://mittromneycentral.com/uploads/pdf/social_marriage.pdf.
“Gay Issues - Actions Taken to Preserve Traditional Marriage,” AboutMittRomney.com,
2008; http://aboutmittromney.com/gay_issues.htm.
Hewitt, A Mormon in the White House? op. cit., Chapter 6, “Mitt
Romney Defends Traditional Marriage.” Ronald Kessler, “Romney to the Rescue;
Mitt Romney’s Got the Right Stuff for 2008,” NewsMax (cover story),
April 2007; http://archive.newsmax.com/romney/.
In January 2007, Romney assembled a group of Massachusetts “pro-family
advocates” – some of whose groups had received his donations (Massachusetts
Citizens for Life, Massachusetts Family Institute) – and pitted them against
the MassResistance critique. He even got National Review to publicize
their “open letter” on his “defense of marriage.” See “An Open Letter Regarding
Governor Mitt Romney,” signed by Kris Mineau (Massachusetts Family Institute),
Professor Mary Ann Glendon (Harvard Law School), Thomas Shields (Romney’s
longtime personal friend and Chairman, Coalition for Family and Marriage), and
a few others, January 11, 2007; http://aboutmittromney.com/pdf/massleaders.pdf.
Kathryn Jean Lopez, “An Early Massachusetts Primary: The Campaign for Mr.
Right,” National Review, January 10, 2007; http://www.nationalreview.com/articles/219687/early-massachusetts-primary/kathryn-jean-lopez.
Scott Helman, “Mass. activists defend Romney conservative record; Group lauds
social stances,” Boston Globe, January 10, 2007; http://www.boston.com/news/local/articles/2007/01/10/mass_activists_defend_romney_conservative_record/.
On the National Review connection, see Kirkpatrick, “In Romney’s Bid,
His Wallet Opens,” op. cit., who reported: “Mr. Romney and a group of
his supporters also contributed a total of about $10,000 to a nonprofit group
affiliated with National Review.” Kathryn Jean Lopez, “My Soul &
Mitt Romney,” March 12, 2007; http://www.nationalreview.com/corner/138902/my-soul-mitt-romney/kathryn-jean-lopez.
By December 2007, National Review had formally endorsed Romney: “Romney
for President,” National Review editorial, December 11, 2007; http://www.nationalreview.com/articles/223076/romney-president/editors.
Unruh, “Experts: Credit Romney,” op. cit. (All accessed Dec. 2011.)
It is significant that his 2011 campaign website www.MittRomney.com “Issues” lists only three categories: Jobs,
Healthcare, Foreign Policy. Nothing on social issues.
[140] See especially Hewitt, A
Mormon in the White House?, op. cit.
[141] Ambinder, “Mitt Romney’s
Journey to the Right,” op. cit.
[144] Raphael Lewis, “Foes of
gay marriage try long shot; Bill seeks to remove four of SJC’s justices,” Boston
Globe, April 20, 2004; http://www.boston.com/news/local/articles/2004/04/20/foes_of_gay_marriage_try_long_shot
(accessed Dec. 2011). Lewis calls the Bill of Address a “radical, long-shot
strategy.” (See section on Bill of Address below in this chapter.) Governor
Romney’s appeal to the Legislature to let him approach the Court to ask for a
stay on their marriage ruling was, of course, equally long-shot, as were the
attempts to pass constitutional amendments from 2004 on.
[147] Romney’s plan was declared
“long shot” in the Washington Times: Cheryl Wetzstein, “Romney on path
to bar same-sex ‘marriage’,” Washington Times, April 18, 2004.
[148] Steve LeBlanc,
“Changing Constitution not easy in Massachusetts,” Associated Press, December
2, 2006. The Constitution requires the Legislators to vote on citizens’
referendum petitions. But LeBlanc notes the many recent proposed amendments
killed through parliamentary maneuvers:
·
1982 Budget debate reform: Legislators adjourn to avoid vote.
·
1990 “Right to quality public education”: Legislators adjourn to
avoid vote.
·
1990 Abortion question: Legislators adjourn to avoid vote.
·
1992 Term limits: Legislators adjourn to avoid vote.
·
[1994 Graduated income tax: Passes Legislature twice, but
defeated by voters; not noted by LeBlanc]
·
2002 Protection of Marriage amendment: Senate President adjourns
Legislature without taking vote. Supreme Judicial Court says Constitution
requires Governor to call Legislature back in session (which Acting Governor
Jane Swift never did).
·
2006 “Health Care for Massachusetts”: Instead of taking second
vote, Legislature killed it by sending to “study committee.”
See also Jeff Jacoby, “From Bulger’s Playbook,” op. cit.,
July 21, 2002; available at http://www.bigeye.com/jj072102.htm
(accessed Dec. 2011).
[150] The rally was actually
being organized not by the Governor’s State House office, but by his former
Deputy Chief of Staff, Peter Flaherty, who was by late 2006 working full-time
for Romney’s Commonwealth PAC. The rally just happened to coincide with a
meeting that weekend of key donors and strategists for Romney’s Presidential
campaign. (Source is someone close to Flaherty. When this person was asked to
help promote the event, the source answered s/he “could not in good conscience
be a human prop for the Romney show.”)
[154] Ethan Jacobs, “Change
of Mind; How Senate Minority Leader Brian Lees switched his vote on marriage,” Bay
Windows, September 29, 2005. See also Jacoby, “From Bulger’s Playbook,” op.
cit. Deirdre Fulton, “Gay marriage victory; Proposed amendment defeated at
Con Con, but the war continues,” Boston Phoenix, September 15, 2005; http://www.bostonphoenix.com/boston/news_features/other_stories/documents/04978178.asp
(accessed October 27, 2010).
[155] Ed Oliver, “Birmingham
Draws Unusual Wrath of Ordinary Citizens,” Massachusetts News, July
2002; http://www.massnews.com/2002_editions/Print_editions/07_Jul/mn_july_2002_final.pdf.
Ed Oliver, “Legislature Denies Citizens a Chance to Vote on Marriage; Pols Vote
To Adjourn Joint Session without a Vote on Amendment,” Massachusetts News,
July 18, 2002; http://www.massnews.com/2002_editions/07_July/071802_mn_marriage.shtml.
Bruce A. Seibert, “The Death of Marriage: An Institution In Massachusetts Ends
As Democracy Fails,” Massachusetts News, July 24, 2002; http://www.massnews.com/2002_editions/07_July/072302_mn_opinion_marriage.shtml.
J. Edward Pawlick, “The Vote About Marriage Is Not Over,” Massachusetts News,
July 22, 2002; http://www.massnews.com/2002_editions/07_July/072202_mn_marriage.shtml.
(All accessed Dec. 2011.)
[158] J. Edward Pawlick,
“Difficult to Understand Republicans Romney and Swift,” Massachusetts News,
October 17, 2002; http://www.massnews.com/2002_editions/10_Oct/101602_mn_obrien_gay_marriage.shtml
(accessed Dec. 2011):
Romney failed to attack or challenge [Democrat
opponent] O’Brien about the violation of the law on this issue by most of the
Democratic Party on July 17 which has shocked most citizens. At that time, Sen.
President Tom Birmingham adjourned a Constitutional Convention without allowing
a vote to be taken on the Protection of Marriage Amendment, as required under
state law.
[159] Attorney “Robert Paine”
(http://robertpaine.blogspot.com/) wrote (in
e-mail from Atty. “Paine” to author et al.):
According to the words of the Constitution, there
are only five ways of ending a constitutional amendment. Failing to take final
action is not one of them. The legislature has no authority to “accelerate,
retard, or affect the submission of the amendment to the people.” See Opinion
of the Justices to the Senate and House of Representatives, 291 Mass. 578, 587
… The manifest object of Article 48 is to permit the citizenry to amend the
constitution…. The failure of the General Court [Legislature] to act on the Pawlick
Amendment [in 2002] thwarts the intention of the Constitution. To regard the
intent of the constitution as something which the legislature may thwart, using
any pretext, is to allow our democratic republic to devolve into a tyrannical
oligarchy. … See Lamson v. Secretary of the Commonwealth, 341 Mass. 264 (1960)…
[160] Klein, “Romney kin
signed petition,” op. cit.
[164] See Romney’s statements
on civil unions in Mitt Romney’s Deception, Chapter II.
[167] Regan, “Romney favors
family rights for gay couples,” op. cit.
[170] Klein, “Image on the
Line,” op. cit.
[171] Ibid. Romney’s
November 18, 2003 statement at Note 166.
[175] “Legislature Postpones
Constitutional Convention Until Next Year,” Massachusetts News, November
13, 2003; http://www.massnews.com/2003_Editions/11_November/111303_mn_legislature_postpones_contitutional_convention.shtml;
(accessed Dec. 2011). See also “Federal & State Anti-Gay, Anti-Marriage
Legislation,” Gay & Lesbian Advocates & Defenders, 2003 (no longer
online). GLAD confirmed it viewed the Pawlick and Travis amendments as
“similar.” They call the efforts to amend the Constitution to ban same-sex
marriage “bigotry,” “extremist,” “anti-gay,” and “proposals to codify
discrimination” – basically the same vocabulary used by Romney. (GLAD
incorrectly identified Representative Travis as Republican.)
[176] J. Edward Pawlick, “Will
the ‘Soft’ Marriage Amendment Do the Job?” Massachusetts News, December
11, 2003; http://www.massnews.com/2003_Editions/12_December/121103_mn_will_the_soft_marriage_amendment_do_the_job.shtml
(accessed Dec. 2011). “John Diggs, M.D., Opposes MFI’s Amendment,” Massachusetts
News, op. cit. See also “Same-Sex Marriage (SSM) in Massachusetts: Initial
attempts to create a constitutional amendment (2001-2003),”
ReligiousTolerance.org; http://www.religioustolerance.org/hom_marm2.htm.
From ReligiousTolerance.org:
On the surface, if this amendment were approved,
it would seem to eliminate the possibility of gays and lesbians ever being
allowed to marry or enter into a civil union. However, the amendment would not
appear to prohibit the legislature from setting up a parallel civil union
family structure so that:
- Opposite-sex couples could get married, as now,
and be granted approximately 500 state benefits, and
- Same-sex couples could become “civil-unionized”
and be granted, say, one fewer benefit than is given to married couples.
Such an arrangement would avoid having civil
unions fully equivalent to marriage, and thus might be considered
constitutional within the wording of the amended state constitution. Further,
it might be possible for the Supreme Judicial Court to instruct the legislature
to create such a parallel system, as the corresponding court did in Vermont.
[177] Brian Camenker, Parents’
Rights Coalition, e-mail alert, December 13, 2003. See also: Kelley Beaucar
Vlahos, “Mass. Conservatives Late to Action on Gay Rights,” FoxNews.com,
December 4, 2003; http://www.foxnews.com/story/0,2933,104769,00.html.
Raphael Lewis, “In lawmaker poll, few back limiting marriage; Political debate
shifts to accommodate SJC,” Boston Globe, December 1, 2003; http://www.boston.com/news/local/articles/2003/12/01/in_lawmaker_poll_few_back_limiting_marriage/
: “The bill’s chief sponsor, Democratic Representative Philip Travis of
Rehoboth, said he would be inclined to strike language that many interpret as
banning civil unions, if that would attract more votes and increase the bill’s
chances of passage.” Frank Phillips, “Senate eyes civil union bill for SJC;
Would ask justices for ‘clarification,” Boston Globe, December 11, 2003;
http://www.boston.com/news/local/massachusetts/articles/2003/12/11/senate_eyes_civil_union_bill_for_sjc/
. See Massachusetts News for the text of the “Civil Union Bill for which
Senate President Travaglini is Seeking Permission for the Massachusetts Senate
to Pass,” January 12, 2004; http://www.massnews.com/2004_editions/1_january/011204_mn_the_following_is_the_civil_union_bill_for_which_senate_travaglini.shtml.
(All accessed Dec. 2011.)
[178] Speaker Finneran signed
a proclamation celebrating the “wedding” of a notorious homosexual couple, one
of whom, Tom Lang, runs KnowThyNeighbor.org (which published the names
and addresses of marriage amendment petition signers). Lang is also connected
with the Massachusetts RINO establishment. Boston Herald columnist
Margery Eagan (who attended the “wedding”) noted Finneran’s wedding
proclamation for the homosexual couple:
As the couples joined hands, [Rev. Peter J.]
Gomes pronounced them, not man and wife, but “partners for life” and “truly
married in the sight of God and man.” Lang and Westerhoff kissed twice – very
quickly – then they received a proclamation of congratulations from the
Massachusetts House of Representatives, signed by Speaker Thomas Finneran, who
has long opposed gay marriage. It read: “What the SJC has granted, let no vote
put asunder.”
Sorry, Mr. Finneran, but those of us who don’t view this as
a game do not find that humorous. Amy Contrada, MassResistance blog, “Finneran-Lang-Eagan
Axis of Evil,” June 28, 2007; http://MassResistance.blogspot.com/2007/06/finneran-lang-eagan-axis-of-evil.html
(accessed Dec. 2011).
[179] Phillips, “Senate eyes
civil unions bill,” op. cit. Speaker Finneran wanted the establishment
of civil unions through statute, not via Constitutional amendment. Senator Lees
wanted civil unions included in the amendment. The second name attached to the
final compromise amendment thus is Lees, not Finneran. Finneran later agreed to
that compromise. Raphael Lewis, “Finneran says he will support compromise on
civil unions; But insists Legislature should define benefits,” Boston Globe,
February 21, 2004; http://www.boston.com/news/local/articles/2004/02/21/finneran_says_he_will_support_compromise_on_civil_unions/.
On Finneran’s proposed statute, see Frank Phillips and Raphael Lewis,
“Lawmakers eye civil union provision; Bid to win backers for amendment,” Boston
Globe, February 10, 2004; http://www.boston.com/news/local/articles/2004/02/10/lawmakers_eye_civil_union_provision/.
(Both accessed Dec. 2011.)
[180] Two days after the
February 8 rally, but before the February 11-12 Constitutional Convention, the
MFI E-Alert (February 10, 2004) stated: “They [legislators] must not allow the
bill to be changed to include a civil unions provision…. Benefits and so-called
‘civil unions’ have no place in the Massachusetts Constitution, and those
members wishing to enact such legislation should do so through statutory law…”
[181] Raphael Lewis and
Christine McConville, “While foes rally, gay marriage camp strategizes; Says
amendment is a Trojan horse,” Boston Globe, February 9, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/02/09/while_foes_rally_gay_marriage_camp_strategizes/.
Phillips and Lewis, “Lawmakers eye civil union provision,” op. cit. “Massachusetts
Family Institute, “Roll Call on Travis Amendment” (printed from MFI web site on
February 15, 2004) notes that Travis changed his “MA&PA” amendment proposal
to neither require nor prohibit civil unions. Yet they still present a “yes”
vote as positive. (The new last sentence added to the Travis amendment read:
“Nothing in this article requires or prohibits civil unions in Massachusetts.”)
See also “How legislators voted on Travis gay marriage amendment,” Associated
Press, Boston Globe, February 12, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/02/12/how_legislators_voted_on_travis_gay_marriage_amendment/.
Gary Schneeberger, “Massachusetts Marriage Debate Dead Ends,” Focus on the
Family, CitizenLink.com, February 13, 2004; available at http://exodus.blogs.com/liveoutloud/2004/02/massachusetciti.html.
Scott S. Greenberger, “Fear, determination led to plan for filibuster,” Boston
Globe, February 14, 2004; http://www.boston.com/news/specials/gay_marriage/articles/2004/02/14/fear_determination_led_to_plan_for_filibuster/:
“The demise of the Travis amendment emboldened gay-marriage supporters…”
(All accessed Dec. 2011.)
[182] Lewis and McConville, “While
foes rally,” op. cit. See also Steve Marantz and Jack Meyers, “Gov’s
one-night stand with Finneran irks pols,” Boston Herald, February 12,
2004. Were national conservatives aware of Romney’s willingness to compromise
on civil unions? His varying stances had everyone confused, or so they said.
Homosexual activists portrayed Romney’s position(s) at this time as anti-gay,
and a betrayal of his promises to them. See Steve Marantz, “Romney critics hit ‘flip’
on gay marriage pledge,” Boston Herald, February 23, 2004:
Gov. Mitt Romney appears now to be tacking hard
to the right on gay marriage, fast becoming the darling of the Bush White House
and the Christian Coalition. But, only two years ago, as a gubernatorial
candidate, he ran for office opposing a constitutional amendment banning gay
marriage… Gay activists say they feel betrayed by Romney’s active opposition to
gay marriage, particularly the editorial he penned for the Wall Street Journal
urging other states to block gay marriage…. Indeed, during the gay marriage
debate two weeks ago [the Constitutional Convention, February 11-12], Romney
was in his State House office meeting with Bill Thompson, national field
director of the Christian Coalition. “I think what Mitt Romney has done is
stand up for traditional marriage and people see him as one of the heroes for
standing up for what they believe in,” Thomson told the Associated Press.
[183] Lewis and McConville, “While
foes rally,” op. cit.
[184] Massachusetts Family
E-Alert, November 25, 2003:
Some supporters have come to us confused about
“civil unions” and whether it is an acceptable “compromise” or not. It is not
acceptable. Civil unions recognize homosexual relationships as equal to
marriage, which they are not…. Civil unions are nothing more than homosexual
“marriage” by another name.
MFI led the Coalition for Marriage (announced at the State
House on January 7, 2004) to promote amending the Constitution. See Raphael
Lewis, “Gay Marriage foes push amendment coalition formed to fight SJC ruling,”
Boston Globe, January 8, 2004 (archive). Its members, who were
apparently party to this compromise (or at least did not publicly dissent),
included: Alliance Defense Fund, Black Ministerial Alliance of Greater Boston,
Center for Marriage Law (Catholic University of America), Family Research
Council, Focus on the Family, Massachusetts Catholic Conference, Knights of
Columbus (Massachusetts), Bay State Republican Council, Catholic Action League
of Massachusetts, Concerned Women for America, Family Policy Councils of the
United States, Massachusetts Citizens for Life, Morality in Media
Massachusetts, and Traditional Values Coalition.
[185] Frank Phillips, “Romney
out front: Bush aides in touch with Romney,” Boston Globe, February 13,
2004; http://www.highbeam.com/doc/1P2-7828891.html.
By mid-March 2004, the homosexual activist Republicans were publicly
complaining that Romney had misled them in 2002, telling them he would not
crusade against gay rights. “Republican gay rights group hits Bush,
Romney stances,” Boston Globe, March 11, 2004; http://www.boston.com/news/specials/gay_marriage/articles/2004/03/11/republican_gay_rights_group_hits_bush_romney_stances/.
“Romney Mulls appeal to SJC,” op. cit., March 12, 2004; http://www.boston.com/news/local/articles/2004/03/12/romney_mulls_appeal_to_sjc/.
(All accessed Dec. 2011.) See also Note 182.
[188] Professors Mary Ann
Glendon, Dwight Duncan, Scott FitzGibbon, Thomas Kohler, Gerard Bradley, and
Robert Destro, “Legal Analysis of the Finneran-Travaglini Amendment,”
Memorandum to Massachusetts Catholic Conference, March 5, 2004; http://www.cwfa.org/images/content/MCCOpinion.pdf.
Robert Knight, “Catholic Legal Memo Warns that Finneran-Travaglini Won’t
Protect Marriage,” Concerned Women for America, March 19, 2004; available at http://web.archive.org/web/20040404213432/http://www.cwfa.org/printerfriendly.asp?id=5388&department=cfi&categoryid=family.
For more on the compromise deal: Tom Benner, “Deal on same-sex marriage is
struck - maybe: Gay marriage opponents vow to keep fighting,” Patriot Ledger,
March 9, 2004; available at http://web.archive.org/web/20040314154115/http://ledger.southofboston.com/articles/2004/03/09/news/news08.txt.
Rick Klein, “Gay-marriage ban backed, but uncertainty remains; Compromise
proposal needs one more vote,” op. cit., March 12, 2004; http://www.boston.com/news/specials/gay_marriage/articles/2004/03/12/gay_marriage_ban_backed_but_uncertainty_remains/.
Chris Funnell, “Same-sex marriage debate” blog, Boston Globe, March 18,
2004; http://www.boston.com/news/special/gay_marriage/blogs/chrisfunnell5.html.
Raphael Lewis and Matthew Rodriguez, “Round 3 on gay marriage today;
Complicated moves on ban expected,” Boston Globe, March 29, 2004; http://www.boston.com/news/local/articles/2004/03/29/round_3_on_gay_marriage_today/.
(All accessed Dec. 2011.)
[190] Knight, “Catholic Legal
Memo Warns,” op. cit.
[191] C. J. Doyle’s statement
upon its defeat in the Legislature in September 2005. Catholic Action League,
News Release, September 14, 2005.
[197] Knight, “Catholic Legal
Memo Warns,” op. cit.
[198] Meghan Dorney,
“Legislature passes ‘compromise’ marriage amendment,” The Boston Pilot,
April 2, 2004 (dead link: http://thebostonpilot/articleprint.asp?ID=1930).
[200] Jacobs, “Change of
Mind,” op. cit.
[203] Kiritsy, “Advocates see
new signs,” op. cit.
[207] Abraham, “Weeks ahead,”
op. cit.
[209] Jacoby, “From Bulger’s Playbook,”
op. cit. Jacobs, “Change of Mind,” op. cit.
[210] Including Massachusetts
Family Institute, Massachusetts Catholic Conference, various Massachusetts
church groups, and national groups: Alliance Defense Fund, Center for
Reclaiming America, Family Research Council, Catholic Citizenship, Toward
Tradition, Vision America, and United Families International. (The earlier
Coalition behind “MA&PA” included some powerful national organizations not
named this time around. See Note 42.)
[213] “The New Marriage
Amendment: What it says, what must be done and how you can help,” pamphlet by VoteOnMarriage.org,
no date. Mentioning the “laws of nature and anatomy” is as close as they get to
addressing homosexuality itself. Their focus is on “every child needing a
mother and a father.” See also Massachusetts Family Institute E-Alert, July 14,
2005.
[214] Massachusetts Family
Institute, September/October 2005 newsletter; quoted in Amy Contrada, “Amateur
Hour: Immigrant Law Student behind Flawed ‘VoteOnMarriage’ Research,”
MassResistance blog, October 10, 2005; http://massresistance.blogspot.com/2005/10/amateur-hour-immigrant-law-student.html.
One of the amazing footnotes in this history is that David and Nancy French of
“Evangelicals for Mitt” call the Robert Paine/MassResistance analysis of the
constitutional crisis “amateurish”! See Nancy French, “Did Gov. Romney Choose
Gay Marriage? Santorum Misconstrues Romney’s Record,” The French Revolution
blog, December 15, 2011; http://www.patheos.com/blogs/frenchrevolution/2011/12/15/did-gov-romney-choose-gay-marriage-santorum-misconstrues-romneys-record.
See also this expose on who “Evangelicals for Mitt” really is: Mark Benjamin,
“Evangelicals for Mitt? ‘Grassroots’ Group Has Close Ties to the Romney
Campaign,” Time, Swampland blog, December 15, 2011; http://swampland.time.com/2011/12/12/evangelicals-for-mitt-grassroots-group-has-close-ties-to-the-romney-campaign/.
(All accessed Dec. 2011.)
[215] “The New
Marriage Amendment,” VoteOnMarriage.org, op. cit.
[217] W. James Antle, III,
“The Constitutional Crack-Up,” American Spectator, September 19, 2005; http://spectator.org/archives/2005/09/19/the-constitutional-crack-up
(accessed Dec. 2011). Antle wrote: “Pro-family groups drafted a new,
no-civil-unions amendment.” But while their amendment did not include
civil unions as a constitutionally protected right, it also did not ban civil
unions.
[218] Tim Gill and his Gill
Action Fund were pouring money into the state. Massachusetts political veteran
Patrick Guerriero and Romney advisor, then Executive Director of the
Gill Action Fund, was working closely with his old GLBT lobbyist friends. Amy
Contrada, MassResistance blog: “Did Gill Foundation’s Millions Defeat Marriage
Amendment?” June 23, 2007; http://MassResistance.blogspot.com/2007/06/did-gill-foundations-millions-defeat.html.
“Who Is Patrick Guerriero,” August 11, 2006; http://MassResistance.blogspot.com/2006/08/who-is-patrick-guerriero.html.
“Tim Gill’s Donations to Mass. Legislators in 2004,” July 29, 2007; http://MassResistance.blogspot.com/2007/07/tim-gill-open-donor-to-mass-legislators.html.
See also “Roll Call Votes of Marriage Amendment – Mass. Legislature
Constitutional Convention – June 14, 2007,” MassResistance, June 2007; http://www.MassResistance.org/docs/events07/concon_0614/rollcall.html.
The report includes State House News coverage of the vote:
“Legislature affirms gay marriage, defeats ban” …
Mineau pointed to his side getting outspent 10 to 1 as one of the reasons for
the result. Amendment opponents spent $2 million over the last six months, he
said. “We lost about 10 votes in the last 24 hours,” he said. Mineau also
repeated charges of lawmakers getting offered jobs and opportunities to flip
their vote.
And the Boston Globe reported the GLBT lobbyist
essentially admitting the bribery:
“It’s frustrating,” [homosexual lobbyist Arline]
Isaacson said … “It’s very frustrating because legislators keep upping the ante
on what they want to get for their votes.”
Claire Cummings and April Yee, “On both sides, they chat up
lawmakers, check lists for Constitutional Convention,” Boston Globe,
June 14, 2007; http://www.boston.com/news/local/massachusetts/articles/2007/06/14/advocates/.
Two notorious cases were Rep. Richard Ross and Rep. Paul Loscocco, formerly
voting as pro-family Republicans, who were somehow swayed by the homosexual
groups and became crucial votes against the VoteOnMarriage amendment in 2007.
Amy Contrada, “Rep. Loscocco Took Money from Homosexual Lobby,” MassResistance
blog, July 31, 2007; http://MassResistance.blogspot.com/2007/07/rep-loscocco-took-money-from-homosexual.html.
“Republican State Sen. Richard Ross (Scott Brown’s replacement in the Mass.
Senate) marches in Boston Gay Pride Parade,” MassResistance, June 25, 2010; http://www.MassResistance.org/docs/gen/10c/pride_week/ross.html.
(All accessed Dec. 2011.)
[224] Massachusetts Family
Institute, E-Alert, July 13, 2005. VoteOnMarriage.org flyer, “Q&A About the
Massachusetts Marriage Amendment” (no date; urges action before May 9, 2007),
states:
The goal of the Amendment is to protect the
rights of all people: The right of children to be nurtured by their married mom
and dad together, the right of citizens to vote, and the right of those needing
essential care and support to receive it…. That’s why VoteOnMarriage.org
supports legislation to secure important rights for unmarried adults ineligible
for marriage in such areas as hospital visitation, estate planning, home
ownership and insurance coverage. Increasing benefits fairness, while at the
same time reaffirming marriage as the union of one man and one woman, is a
win-win solution for all.
[225] “Lawmakers File
Benefits Fairness Act
Ensuring
new rights, benefits and protections for adults ineligible for marriage,” VoteOnMarriage.org,
Press Release, January 11, 2006; http://www.voteonmarriage.org/news.shtml#060111pr
(accessed Dec. 2011). An immigrant law student intern (from Alliance Defense
Fund) drafted the Benefits Fairness Act, according to MFI’s September-October
2005 newsletter. (See Note 214.)
[226] Lisa Barstow, Letter to
the Editor, op. cit., June 14, 2007. (This was published the day the
amendment was killed in the Constitutional Convention.)
[227] VoteOnMarriage.org,
“Q&A About the Massachusetts Marriage Amendment,” op. cit. Missing
were any of the points about the dangers of the homosexual “lifestyle” made in
MFI’s earlier advocacy for their MA&PA amendment, e.g. MFI, “Issue in
Focus,” Spring 2003:
Homosexual marriage would affirm violent
behavior: the incidence of domestic violence among gay men is nearly double
that in the heterosexual population. Homosexual marriage would affirm unhealthy
lifestyles: high rates of HIV, herpes, syphilis, gonorrhea and, on average, a
20-year shorter lifespan. …Homosexuals already enjoy equal rights. Gay
activists’ comparisons to the civil rights movement are flawed because sexual
orientation has not been proven involuntary or immutable like race.
These were arguments Mitt Romney would not allow. The
homosexual lifestyle had to be “respected” by anyone allied with Romney.
[229] Frank Phillips,
“Leaders seek to kill gay marriage ban; Goal is recess without a vote,” Boston
Globe, November 9, 2006; http://www.boston.com/news/local/massachusetts/articles/2006/11/09/leaders_seek_to_kill_gay_marriage_ban/
(accessed Dec. 2011):
House Speaker Salvatore F. DiMasi and others
on his leadership team who support same-sex marriage are rounding up votes to
derail a proposed ban on gay marriage scheduled to be discussed today in
Constitutional Convention, sources said yesterday.
Legislative sources said that DiMasi is
pushing to get enough votes to force today’s convention to recess without
taking final action on the amendment, a move that, if successful, would kill
the proposal and prevent it from appearing on the 2008 state ballot.
Senate President Robert E. Travaglini, who
will preside over the convention, said yesterday he would entertain a motion to
recess or adjourn, even before a vote is taken on the marriage amendment. His
comments appear to be a shift in his position from earlier this year, when he
said he intended to make sure a recorded vote was taken on the amendment.
“Whatever action the body decides to do
will be done by a recorded vote,” Travaglini said in an interview
yesterday, when asked about a motion to recess. “I will entertain that motion.
I will not influence anyone how to vote.” [emphasis added]
[233] Paul Johnson, The
Quest for God: A Personal Pilgrimage (HarperCollins, 1996), p. 29.
[236] Phillips and Wangsness,
“Same-sex marriage ban advances,” op. cit.
[237] Contrada, “Did Gill
Foundation’s Millions,” op. cit.; and “Who Is Patrick Guerriero?”
MassResistance blog, August 11, 2006; http://MassResistance.blogspot.com/2006/08/who-is-patrick-guerriero.html
(accessed Dec. 2011). Arline
Isaacson, chief lobbyist for the Mass. Gay and Lesbian Political Caucus, worked
closely with Patrick Guerriero, former Massachusetts pol and ongoing Romney
advisor, head of national Log Cabin Republicans, then Executive Director of
the Gill Action Fund at time of this event. Guerriero had spread around Tim
Gill’s dollars to Massachusetts legislators and organizations to ensure the
defeat of VoteOnMarriage.
[238] Letter addressed to
Representative Emile Goguen (identical letter sent to all legislators);
photocopy in author’s possession.
[241] E-Alert, Massachusetts
Family Institute, January 10, 2007; available at http://leondejuda.org/db_public/u14_public/index_EN.php?display=onepage&what=1680.
“Massachusetts Family Institute Announces Initiative to Promote Mutual
Understanding and Dialogue on Same Sex Marriage,” VoteOnMarriage.org, Press
Release, January 9, 2007; http://www.voteonmarriage.org/news.shtml#pr010907.
MFI thought they could dialogue with Marc Solomon of MassEquality?! As we
noted, Solomon appears in a video yelling “BIGOT, BIGOT” with the crowd as they
drown out Gov. Romney’s speech, “Rally Against Romney Shame!” op.
cit. See also Amy Contrada, “Compromisers Wherever We Turn,” MassResistance
blog, January 21, 2007; http://MassResistance.blogspot.com/2007/01/compromisers-wherever-we-look.html:
The president of the MassEquality Board of
Directors (Solomon’s boss) said MassEquality “will redouble its efforts to
protect marriage equality and defeat this discriminatory amendment in the
legislature.... We are not going away. We are going to get bigger and stronger
and do whatever is necessary to make sure that our families, our rights
and our communities are safe.”
Mineau began his “dialogue” by giving an interview to the
GLBT newspaper, Bay Windows. See Jacobs, “Calling for a cease fire,”
op. cit. The newspaper immediately turned on him, snidely dismissing his
proposal. From Susan Ryan-Vollmar, “Massachusetts Family Institute’s
Disingenuous call for dialogue,” Bay Windows, January 17, 2007:
Following the Jan. 2 vote by the legislature to
advance the constitutional amendment to ban same-sex marriage into the new
legislative session, activists on both sides of the marriage debate put out
public calls for dialogue to encourage an end to offensive rhetoric and a
de-escalation of the war of words. Yet in an interview with Kris Mineau,
president of the Massachusetts Family Institute (MFI) and spokesperson for
VoteOnMarriage.org, he made it clear that opponents of same-sex marriage would
make no effort to rein in some of the most egregious offenders, members of the
clergy speaking out in favor of the amendment....
(All accessed Dec. 2011.)
[242] This is confirmed by
the MFI newsletter, which came out three months later (after they had been
dismissed by Bay Windows et al.), which included flattering
portraits of the two main homosexual lobbyists, Arline Isaacson and Marc
Solomon. From MFI, The Massachusetts Family Report, Vol. 14, No. 2
(March/April 2007) – two months before VoteOnMarriage was killed:
Isaacson is credited with advancing a strategy
during the 2004 constitutional conventions that ultimately led to an
ill-conceived compromise proposal.
MFI clearly still did not understand what hit them!
She and former MFI President Ron Crews had a
cordial and professional relationship throughout the debate, allowing for a
level of civility between the two opposing camps. Solomon developed the
strategy that nearly defeated the Marriage Amendment last year, to prevent it
from ever coming to a vote.
Didn’t they see what was coming later in 2007?
Every movement has its professionals, and every
movement has its fringe players. While Isaacson and Solomon are seasoned
veterans who command respect with their professionalism…
They go on to knock Tom Lang of KnowThyNeighbor.org, not
comprehending that he just played the “bad cop” to Isaacson’s and Solomon’s
“good cops.” Unbelievable. Mitt Romney shares MFI’s approach, “respecting” the
homosexual activists, and believing dialogue is possible.
[243] Frank Phillips,
“Marriage battle could broaden; Gay rights activists ask aid from DNC,” Boston
Globe, May 3, 2007; http://www.boston.com/news/local/articles/2007/05/03/marriage_battle_could_broaden/.
Frank Phillips, “Legislative support slim for same-sex marriage ban; Efforts
heat up to keep issue off 2008 ballot,” op. cit., May 17, 2007; http://www.boston.com/news/local/articles/2007/05/17/legislative_support_slim_for_same_sex_marriage_ban/.
(Both accessed Dec. 2011.) “Pelosi Working to Stop
Massachusetts Marriage Vote,” Tony Perkins’ Washington Update, Family
Research Council, May 18, 2007.
[247] Warren Richey, “Prop. 8
overturned,” Christian Science Monitor, August 4, 2010; http://www.csmonitor.com/USA/Justice/2010/0804/Prop.-8-overturned-Why-Vaughn-Walker-ruled-against-gay-marriage-ban.
The Nebraska amendment was reinstated the next year. “Court Reinstates Nebraska
Gay Marriage Ban,” Associated Press, July 14, 2006; http://www.foxnews.com/story/0,2933,203600,00.html.
At the time, pundits and pro-family groups pointed to the Nebraska case as an
argument for a federal marriage amendment. Stanley Kurtz, “Courting FMA; A
ruling in Nebraska demonstrates the need for a federal marriage amendment,” National
Review, May 13 2005; http://www.nationalreview.com/articles/214436/courting-fma/stanley-kurtz.
(All accessed Dec. 2011.) On the Iowa vote that removed three judges of the
state’s Supreme Court who had ruled for same-sex marriage, see A. G.
Sulzberger, “Ouster of Iowa Judges Sends Signal to Bench,” New York Times,
November 3, 2010; http://www.nytimes.com/2010/11/04/us/politics/04judges.html
(accessed Dec. 2011).
[249] Brian Camenker, “Yes –
Remove the Four Rogue SJC Judges!!” Article 8 Alliance, early 2004; http://www.article8.org/docs/downloads/Pamphlet.pdf.
Thousands of Massachusetts voters signed Article 8’s petition to remove the
judges: http://www.article8.org/docs/downloads/StatewidePetition.pdf
in early 2004. Starting in February 2004, Article 8 Alliance held
demonstrations and standouts in Boston and around the state. Matthew Rodriguez,
“Protesters urge removal,” op. cit. Elise Castelli, “Gay Marriage ruling
still in crosshairs,” Boston Globe, August 27, 2004; http://www.boston.com/news/local/massachusetts/articles/2004/08/27/gay_marriage_ruling_still_in_crosshairs/.
Joanna Weiss, “An anniversary of festivity, resolve; amid celebrations,
same-sex marriage foes pledge changes,” Boston Globe, May 18, 2005; http://www.boston.com/news/local/articles/2005/05/18/an_anniversary_of_festivity_resolve/.
(All accessed Dec. 2011.)
[250] Raphael Lewis, “Foes of
gay marriage try long shot,” op. cit.
[251] Dwight Duncan
(Professor of Constitutional Law), “Judge for yourself: The wonder of a
constitution,” The Anchor (Fall River Catholic Diocese newspaper),
September 22, 2006 (accessed October 27, 2010.)
[252] Vlahos, “Mass.
Conservatives Late to Action,” op. cit.
[253] Jules Crittendon,
“Group: Oust gay-wed judges,” Boston Herald, March 28, 2004.
[254] Lewis, “Foes of gay
marriage,” op. cit.
[256] Lewis, “Foes of gay
marriage,” op. cit.
[258] Wetzstein, “Romney on
path to bar same-sex ‘marriage’,” op. cit.: “Both strategies [Romney’s
and Article 8’s] are widely viewed as political long shots – friends and foes
alike have called them ‘exercises in futility’ and ‘hail-Mary passes’.”
[260] Camenker, “Yes – Remove
the Four Rogue SJC Judges!!” op. cit.
[261] Including Focus on the
Family, Family Research Council, Alliance Defense Fund, Concerned Women for
America, Traditional Values Coalition, American Center for Law and Justice,
etc.
[262] “Lawmakers afraid to
oust ‘marriage justices’?” WorldNetDaily, June 18, 2004; http://www.wnd.com/?pageId=25142. “Protesters
demand ouster of ‘gay friendly’ justices; Bill would remove judge accused of
colluding with homosexuals to enact same-sex marriage,” WorldNetDaily,
July 16, 2004; http://www.wnd.com/news/article.asp?ARTICLE_ID=39470.
Speaker Finneran seemed to have some sympathy for same-sex marriage, having
joined in celebrating a same-sex wedding in 2004. (See Note 178.) And he most
likely did not want to challenge the legal establishment. He was an attorney …
before losing his license (he was later convicted of a felony). Michael
Levenson, “Finneran’s Losing Streak Continues; Former House speaker stripped of
law license,” Boston Globe, January 12, 2010; http://www.boston.com/news/local/massachusetts/articles/2010/01/12/finnerans_losing_streak_continues/.
(All accessed Dec. 2011.)
[263] The bills filed by
Article 8 Alliance for the 2005-2006 session available at http://www.article8.org/docs/general/new_bills_2005.htm.
During 2004 and 2005, Massachusetts Family Institute supported the bill filed
by Article 8 Alliance to remove the four judges (H652). They failed to testify
in favor of our other two marriage bills in 2005, however, as those were in
conflict with their new VoteOnMarriage amendment effort. One (H653) would have
defined marriage and banned civil unions (in statute); and the other
(H654) would have declared all the same-sex marriages since May 17, 2004 null
and void, since the marriage statute was never changed to permit them. See MFI
Legislative Alert, April 8, 2005; and MFI E-Alert, April 13, 2005. On the
Judiciary Committee hearing: “Article 8 supporters & activists pack ‘surprise’
Judiciary Committee public hearing and tell lawmakers that Bill of Address must
be passed,” Article 8 Alliance-MassResistance, April 12, 2005; http://www.article8.org/docs/news_events/hearing_041205/hearing.htm.
Prior to the hearing: “Justices to be booted in Massachusetts? Panel hears bill
targeting 4 who voted for same-sex marriage,” WorldNetDaily, April 12,
2005; http://www.wnd.com/news/article.asp?ARTICLE_ID=43745.
The Massachusetts Gay and Lesbian Bar Association was concerned enough to send
their Co-Chair, John Affuso, to testify against the three Article 8 bills.
“MLGBA Testifies at State House Hearing,” MLGBA Legal Briefs, May 2005.
Of the Bill of Address, he stated,
We also strongly oppose H.652. [It is] … an
infringement on the separation of powers of the three branches of government. …
the removal of judges based solely upon the grounds that they have issued an
opinion with which some may disagree is an alarming prospect and must not
occur, now or ever.
There was also a bill before the Legislature (filed by
another activist, and supported by MFI), which would have removed only Chief Justice
Margaret Marshall. (All accessed Dec. 2011.)
[264] First pointed out by
Attorney J. Edward Pawlick of Massachusetts News who filed an ethics
complaint against Marshall (as did many Massachusetts citizens later). Of
course, the ethics complaints went to Marshall’s administrative office, so
immediately went down the memory hole. See Mary Mostert, “Did Chief Justice
Marshall collude with lesbian buddies on same-sex marriage decision?” Renew
America, November 20, 2003; http://www.renewamerica.com/columns/mostert/031120.
J. Edward Pawlick, “Complaint Filed Against Chief Justice Margaret Marshall
About Her ‘Judicial Conduct’,” Massachusetts News, March 18, 2003; http://www.massnews.com/2003_Editions/3_March/031803_mn_complaint_against_justice_marshall.shtml.
J. Edward Pawlick, “Margaret Marshall Knows an Ethics Complaint Has Been Filed
Against Her,” Massachusetts News, May 20, 2003; http://www.massnews.com/2003_Editions/5_May/052003_mn_margaret_marshall_knows.shtml.
Article 8 Alliance-MassResistance later published a report on Marshall’s
violations: “Chief Justice Margaret Marshall Violated the Code of Judicial
Conduct,” Spring 2004; http://www.article8.org/docs/general/marshall.htm.
See also “9 days to same-sex marriage,” WorldNetDaily, May 8, 2004; http://www.wnd.com/news/article.asp?ARTICLE_ID=38404.
Robert B. Bluey, “Author of Homosexual Marriage Ruling is Under Fire, Won’t
Budge,” CNSNews.com, April 28, 2004; available at http://www.crosswalk.com/1259676/. (All
accessed Dec. 2011.)
[265] Jeff Epperly, “We can
look out for our own interests,” Bay Windows, May 13, 1999; http://www.baywindows.com/index.php?ch=news&sc=glbt&sc2=news&sc3=&id=70195
(accessed Dec. 2011). See also Joseph P. Barri, “Marshall Discusses Lessons From
South Africa,” Massachusetts Lawyers Weekly, August 9, 1999. Barri
wrote:
The record turnout of more than 3000 was
spellbound by Justice Marshall’s description of the evolution of gay and
lesbian civil rights in her native South Africa…. Justice Marshall noted that
“open advocacy for equal rights on behalf of people who have been discriminated
against on the basis of sexual orientation has become a powerful piece of the
general move for civil liberties for all people.” In finishing her
presentation, Justice Marshall exhorted the lawyers in the audience to refer to
the decision of the South African Constitutional Court in their equality
jurisprudence efforts in the United States.
Marshall, of course, would claim that she was impartial.
Jenna Russell, “SJC Chief decries ‘attacks’ on judges; Marshall defends bench
independence,” Boston Globe, May 23, 2005; http://www.boston.com/news/education/higher/articles/2005/05/23/sjc_chief_decries_attacks_on_judges/:
… she is not concerned about criticism of
individual judges or decisions, but about “attacks leveled at the very
foundation of our legal system – the principle that judges should decide each case
on its merits … independent of outside influence. I worry when people of
influence use vague loaded terms like judicial activism to skew public debate
or to intimidate judges,” Marshall said. “I worry when judicial independence is
seen as a problem to be solved and not a value to be cherished.”
David Limbaugh also noted Marshall’s statements from her
2005 commencement speech at Brandeis University. See Limbaugh, “Proactive
Judicial Activism,” WorldNetDaily, May 24, 2005; http://www.wnd.com/index.php?pageId=30464
(accessed Dec. 2011):
Newsmax.com reported that Justice Margaret
Marshall said, “Our courts function as a pressure valve to defuse political and
social tension.” Marshall equated criticism of “judicial activism” to a
challenge to judicial independence and an effort “to skew public debate or to
intimidate judges.”
[267] Robert Bluey, “Massachusetts
Judge Allegedly Colluded with Homosexuals,” CNSNews.com, June 2, 2004; available
at http://www.freerepublic.com/focus/f-news/1146068/posts
(accessed Dec. 2011). (I have interpreted non-response to several inquiries to CNS
News as permission to quote. Furthermore, the information in the article
came from either Article 8 Alliance-MassResistance or Massachusetts News.
I refer to the CNS News quote to underline that other conservative media took
this issue seriously.) See also Robert Bluey, “Author of Homosexual Marriage
Ruling is Under Fire,” op. cit.
[269] Renew America, “Stop
same-sex marriages in Massachusetts! Call the Massachusetts legislature now!”
May 10, 2004. Keyes said in the ad: “It only takes a simple legislative
majority to remove the four Massachusetts judges who sided with homosexual
activists to destroy marriage …”
[273] While the original of
this letter from Romney was sent to the author, Amy Contrada, it was apparently
his stock response to the many concerned citizens who had contacted him.
[276] Still true as of December
2011. See detail in Chapter V.
[277] Thoroughly documented
in Chapter V.
[288] First filed in 2005 as
H977 and S967; in 2007-8 session as H1710; in 2009-10 session as H2158.
Curiously, no “gay marriage” bill has been filed for the 2011-12 session.
[292] See Chapter V, “What
happened in the months following.”
[295] “22 Conservatives
Challenge National Review to Come Clean on Romney,” MassResistance.org,
July 10, 2007; http://www.massresistance.com/romney/press_release_071007.htm
l (accessed Dec. 2011). Letter from pro-family leaders to National
Review editors, challenging their endorsement of Mitt Romney’s candidacy
for the Republican Presidential nomination.
[297] Governor Mitt Romney,
Press Conference at Massachusetts State House, op. cit.
[301] For detailed
documentation of Romney’s support for the radical homosexual-transgender agenda
in the schools, see Chapter IV, Mitt Romney’s Deception.