September 8, 2006

Tony Perkins
Family Research Council
801 G. Sreet N.W.
Washington, D.C., 20001

Dear Mr. Perkins:

No argument for the legality of homosexual marriage in Massachusetts can survive an examination either of the state constitution or of the Supreme Judicial Court's own case law. The evidence is overwhelming. No exhaustive training in law or constitutions is necessary to understand the simple meaning of the English words. The evidence is so strong and so compelling that it is impossible not to wonder why the four justices in the Goodridge majority were not promptly removed from office and denied their pensions. The same question arises when one examines the conflict between Governor Romney's actions and his oath to uphold the constitution.

But it is virtually impossible to find an attorney or law professor who has checked the state constitution and it is utterly impossible to find one that has done due diligence in uncovering the huge body of their own previous case law that the Goodridge court violated. A large part of this might be attributed to intellectual laziness. But it goes much deeper. And unless we take this monster head on, we will have Goodridge rulings as far as the eye can see.

The monster is not actually homosexual marriage. That is just one of the eggs it has laid. The monster is us, the legal profession and within it the cowardice and inertia and conflicts of interest that exist. It is us, lawyers, law professors and pro-family political leaders who are on the verge of blundering the historic challenge. We have wandered far from the Constitutional texts we swore to defend.

Conservative, pro-family attorneys and law professors have responded to the Goodridge decision and to Governor Romney's directives (which formally imposed homosexual "marriage") almost entirely without reference to the Massachusetts Constitution. This has resulted in a succession of catastrophic consequences that have impacted public education, adoption and parents' rights across the country. This explains both the disorientation of opponents to homosexual marriage and the unending stream of false assurances that lawyers, politicians and journalists offer the public about the legal and constitutional situation. I would like to think I am wrong in my skepticism that we will ever get a marriage amendment passed in Massachusetts or federally.

Under the Massachusetts Constitution, no power resembling what is often termed "judicial review" exists except as an advisory function to the other two branches. The discussion of that should begin and end with a reading of the relevant articles of the state constitution (see attached Mass. Constitution excerpts). Thus, anyone asserting that the Goodridge decision "legalized" homosexual marriage in Massachusetts is fundamentally wrong about one of the clearest and most forceful parts of the state constitution.

"[T]he people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent." (Mass. Const. Part I, Article X)

There is no Marbury v. Madison or similar extra-constitutional exotica that overruled articles of the Massachusetts Constitution. Nor could there be, since the Massachusetts Constitution emphatically denies the judiciary the power to strike down laws or to suspend their enforcement or to assume any of the policy-making responsibilities of the elected branches. For state courts and state constitutions, Marbury and the (disputable) authority of federal judges is utterly irrelevant.

"The power of suspending the laws, or (suspending) the execution of the laws, ought never to be exercised but by the legislature..." (Article XX)

"... 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." (Mass. Const. Part II, Ch. VI, Article XXX)

The Goodridge decision, while noting that the statute excludes homosexual marriage, explicitly said it was not striking down the marriage statute and was leaving that to the Legislature.

Either the SJC "rewrote" the marriage statute, which would have been clearly unconstitutional and void, or they did not. If they did not, Governor Romney lacked any pretext of legal authority to act under even the most elastic and imaginative legal theory. However, he ordered the issuance of homosexual marriage licenses which the Goodridge decision had said would violate the law.

If the court had claimed to strike down or rewrite the statute (as Romney asserted to the public), the governor would have had a sworn constitutional obligation to refuse to enforce a court ruling that strikes at the most fundamental Articles at the very core of the Massachusetts Constitution.

But Goodridge explicitly did not even claim to authorize the executive branch to violate a statute. How did Mitt Romney get the authority to strike down a law that he had sworn to uphold and that the court said would remain in force until the Legislature repealed it? Is Mitt Romney a one-man legislature? Can a Governor strike down or enact a law or order one to be violated? The Executive has no legal authority to enforce laws that do not exist.

These are among the reasons why Hadley Arkes, Professor of Jurisprudence at Amherst College, wrote in the National Review that Romney utterly failed to fulfill his constitutional duty. Romney has committed a grievous and fundamental violation of his oath to uphold the Constitution of the Commonwealth of Massachusetts. Governor Romney's claim has rested entirely on the willingness of conservative attorneys and law professors to leave the state Constitution out of the debate and stand by him.

Mitt Romney's homosexual "marriages" are void.