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Gov. Mitt Romney and same-sex “marriage” in Massachusetts - here's what happened

POSTED: June 15, 2008

Same-sex "marriage" is still NOT legal in Massachusetts, and was NOT created by the Supreme Judicial Court's Goodridge ruling.

Timeline documents Mitt Romney's role in creating same-sex "marriages."

In fact, it was Governor Mitt Romney who was ultimately responsible for same-sex "marriages" taking place. The Supreme Judicial Court only issued an opinion and advised the Legislature to act (which it never did). Even the Court acknowledged that it had no power to change the law.

Governor Romney created these "marriages" through an unconstitutional and illegal directive to his Department of Public Health (to print new "marriage" licenses), and through his legal counsel threatened to fire any Town Clerk or Justice of the Peace who failed to implement the (non-existent) "new law". He was not required by any constitutional mandate to do these things. On the contrary, his actions clearly violated his oath to uphold the laws of Massachusetts.

What did the Goodridge decision actually say?

To start with of all, the 2003 Goodridge SJC decision on same-sex "marriage", which reversed a lower court ruling, said 4 things:

First, it acknowledged that the current law does not permit same-sex marriage.

"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 (among other things, the Massachusetts Constitution forbids a court to change laws)

"Here, no one argues that striking down the marriage laws is an appropriate form of relief."

Third, it declared that not allowing same-sex marriages is a violation of the Massachusetts Constitution. (And the logic they use for this is truly bizarre; you must read it in full sometime.)

"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."

And fourth, given that the court is not changing any laws, the SJC gave the Legislature 180 days to "take such action as it may deem appropriate."

"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."

What happened then?

The Legislature did nothing. It took no action. So after the 180 days Gov. Romney took action on his own!

  1. Gov. Romney's Legal Counsel 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 one Justice of the Peace, Linda Gray Kelley, was forced to resign for religious reasons.)

    See Associated Press article, "Justices of the peace warned not to discriminate against same sex couples" April 25, 2004.
  2. Romney's staff held training sessions for Town Clerks, warning them to "implement" the Court decision and "uphold the law" -- although the training document admits that the marriage statutes have not been changed.
  3. Romney directed his Department of Public Health to change the state marriage license to read "Party A" and Party "B", replacing "Husband" and "Wife". None of this was required by any law passed by the legislature or even ordered by the court.

    See Romney's Massachusetts Marriage license.

Note here that Romney wasn't ordered by the court or anyone else to do anything at all. On the contrary, commentators across the country, from Professor Hadley Arkes to Pat Buchanan to the Family Research Council (and even Ron Crews of Mass. Family Institute) advised Romney to ignore the ruling. And Romney could legally ignore it because the Massachusetts Constitution expressly forbids the Judiciary making laws or ordering another branch to do something.

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 did so, the people would have ceased to be their own rulers:

"[I]f 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."

Abraham Lincoln refused to enforce the court ruling, and he is universally applauded for his refusal.

(Moreover, the Massachusetts Constitution does not need to be amended. The proposed Constitutional Amendment would make things much worse. It would effectively legitimize the current illegitimate same-sex “marrriages” by assuming that the Goodridge decision had changed the law, and by its wording only bans future same-sex “marriages”.)

Useful documents & background:

What really happened in the Goodridge Court Ruling?
A page of bullet points that summarize the main issues.

Letter to Pro-Family Leaders
This letter was sent around the country to pro-family leaders and others, including Tony Perkins, director of Family Research Council. A great many reacted in shock, though Perkins himself never responded.

Frequently Asked Questions
Questions and answers regarding the legal basis of our arguments.

MassResistance responds to Alliance Defense Lawyer's attacks on findings on Romney and "gay marriage" in Massachusetts
Read it and judge for yourself!



The SJC Goodridge decision on same-sex "marriage"
Here's the entire SJC decision, including concurring and dissenting opinions and footnotes.

The Massachusetts 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 marriage statutes: M.G.L. Ch. 207

These are the marriage laws in Massachusetts, referenced in the Goodridge ruling,

House bill H977
Senate bill S967
These House and Senate bills were introduced by the gay lobby in 2005 to change the marriage laws (to allow same-sex marriage) but not acted on. This begs the question: If same-sex "marriage" is already legal, why do the laws need to be changed? The answer: it ISN'T legal!


The Robert Paine blog.
Robert Paine is the pen name of a Boston lawyer who (along with a group of others) has put literally hundreds of hours into researching this issue. His series of articles is very interesting and well-footnoted:

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

Some articles:

"The Missing Governor" by Hadley Arkes (May 17, 2004)
In this National Review Online article on Romney, published the day that same-sex "marriages" began taking place, Law Professor Arkes asks: "Have Republican leaders lost their confidence on moral matters?"

"Mitt Romney: Meet Calvin Coolidge" by Pat Buchanan (Feb 9, 2004)
In this article published three months before the same-sex "marriages" began, Buchanan implores Romney to do the right thing and defy the Court opinion.

"'Conservative' Romney buckles and blunders" by John Haskins (Dec. 24, 2005)
Published last December in WorldNetDaily, this is among a series of John Haskins articles on this issue we'll be posting.