The EFM Feature

Did Mitt Romney choose gay marriage for Massachusetts? That’s the thrust of a bizarre and amateurish legal argument that is circulating through the internet and conservative media. A group calling itself “MassResistance” has been peddling for many months the argument that the Massachusetts Supreme Court did not actually mandate same-sex marriage in Massachusetts but instead merely requested that the legislature change the laws to permit same-sex marriage. Since the law was not changed (and since the Court didn’t have the authority to order the legislature to write new laws)–so the argument goes–Governor Romney therefore never had to recognize same-sex marriage and was in fact the “father” of same-sex marriage when he permitted state and local officials to perform and recognize such marriages. For the latest example of this specious argument, see the quotes from MassResistance member John Haskins in this story.
If such silly legal arguments didn’t cause so much harm, I would read them and laugh. Instead, some serious people seem to be taking these arguments seriously, so let me take a moment for a little bit of constitutional law 101. As with most bad arguments, MassResistance starts with a grain of truth: Judges have very little authority to order legislators to do anything, and depending on the state constitution may have no power at all to issue orders to the legislature. The proper, constitutional, role of the judiciary is to interpret the law, not make new law.
MassResistance argues that the Massachusetts Supreme Court overstepped its bounds and ordered the legislature to change state laws to permit same-sex marriage. Because the laws have not yet been changed (and because the court can’t issue such an order in the first place), same-sex marriage is not yet legal in Massachusetts, and Governor Romney’s decision to recognize same-sex marriages since the court’s decision was entirely optional and discretionary.
Sounds compelling, right? Sounds almost scholarly, doesn’t it? Well, there’s a problem. Even if you accept every premise of MassResistance’s argument regarding the proper role of the courts and the legislature, their argument falls apart based on the language of the same-sex marriage case itself.
You can read the entire opinion at the Massachusetts court website, but for those who lack the time–or stomach–to read the whole thing, please pay attention to this paragraph:

We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs’ constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature’s broad discretion to regulate marriage.

What does this mean? It means that the court interpreted (that’s another word for “construed”) Massachusetts law to mean that two people of the same sex could marry–and that any interpretation contrary to the court’s would violate the rights of homosexuals. In other words, the court did not order the legislature to do anything. Instead, it did what the constitution allows it to do–it interpreted the law. It did so in an improper, activist way that abandoned the obvious original intent of the Massachusetts constitution and the Massachusetts marriage laws, but it interpreted the law nonetheless.
Now, take a look at the next paragraph:

In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. 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. 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.

Read it again. And again. Do you see any order directed against the legislature? No? Well, that’s for a good reason. The court did not order the legislature to do anything–it merely stayed its judgement for 180 days for the legislature to take action that it deemed “appropriate.” However, since the marriage laws had already been interpreted (construed) to include same-sex marriage, the legislature did not have to take any action at all for same-sex marriage to become legal. It was already legal because of the court’s decision.
Frankly, it is sad that so many could be misled by something so simple–and simply wrong. When the Governor confronted the Massachusetts Supreme Court, he had two choices: (1) He could fight the decision using legal means; or (2) he could risk contempt citations and impeachment in an ineffectual, grandstanding attempt to block same-sex marriages. Rather than becoming the what the media would undoubtedly call the “George Wallace of gay marriage” and hand homosexual activists a propaganda victory to go along with their court victory, Governor Romney fought using the law and using his enormous gifts of persuasion. As a result, the same-sex marriage movement has lost public momentum, has lost court cases, and has lost at the ballot box. And we have Governor Romney and his principled, courageous, and compassionate defense of traditional marriage to thank for much of that success.
Mitt Romney did not “choose” gay marriage. At a critical moment in our nation’s history, Mitt Romney did make a choice, and he chose to defend marriage in a way that can and should make all conservatives proud.
P.S. If you doubt my qualifications to read a court case, please read my bio.

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