As a gay-marriage proponent, I was pleased to learn that, as governor, Willard “Mitt” Romney (R., Mass.) issued at least 189 special-issue, one-day marriage licenses to same-sex couples in 2005 alone. These documents let 378 people enjoy nuptials administered by relatives, friends, and others who normally do not perform weddings, as judges and clergy routinely do.
This boost for gay marriage surprised me, given Romney’s numerous contrary pronouncements on the matter.
“I agree with 3,000 years of recorded history,” Romney announced eight years ago as governor. “Marriage is an institution between a man and a woman.”
“I oppose same-sex marriage,” Romney declared at Iowa’s GOP debate two weeks ago. “That’s been my position from the beginning.”
Romney’s statements, however, conflict with his gubernatorial behavior.
In Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court ruled on Nov. 18, 2003, that the Bay State lacked a “constitutionally adequate reason for denying marriage to same-sex couples.” The SJC granted 180 days “to permit the Legislature to take such action as it may deem appropriate in light of this opinion.”
Lawmakers debated various measures and even deliberated as a constitutional convention. But they never enacted a same-sex-marriage law. The old, traditional marriage statute remains intact.
Conservative legal scholars say Romney could have stopped right there.
The SJC “ruled that the legislature should act within a certain time to implement same-sex marriage, but the legislature refused to act,” Liberty University Law School dean and Supreme Court Historical Society trustee Mat Staver told Iowa radio host Steve Deace earlier this month. “Yet, Governor Romney on his own went ahead of the legislature and forced the implementation of same-sex marriage.”
Herb Titus told Deace, “Because the legislature did nothing, Mr. Romney had no power to act to implement the court decision.” Titus, Regent Law School’s founding dean and a Supreme Court bar member, added: “Mr. Romney unconstitutionally usurped legislative power.”
Romney enforced the SJC’s opinion, even though it required nothing of him, having allowed the legislature a window to act “as it may deem appropriate.”
While Team Romney argues that the SJC forced the state to give gay couples conventional marriage licenses, the special, one-day licenses are a strictly gubernatorial choice, as Title III, Chapter 207, Section 39, of the General Laws of Massachusetts unambiguously states: “The governor may in his discretion designate a justice of the peace in each town . . . as he considers expedient, to solemnize marriages, and may for a cause at any time revoke such designation. . . . In addition to the foregoing, the governor may designate any other person to solemnize a particular marriage on a particular date and in a particular city or town, and may for cause at any time revoke such designation.” (Emphasis added.)