Politics & Policy

Mitt and Gay Marriage

He claims to oppose same-sex marriage, but he encouraged it as governor.

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.

#ad#“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.)

#page#“Even if one accepts the Goodridge decision as constitutional, the one-day permits were above and beyond what was required by the court decision; they were purely discretionary,” says Steve Baldwin, former executive director of the Council for National Policy and a one-time Republican whip in California’s state assembly. “Romney did not have to issue any permits at all. This calls into question his authenticity as an alleged social-conservative candidate.” Baldwin, with whom I served on the national board of Young Americans for Freedom, has studied this issue and first alerted me to it.

In 2005 alone, Romney approved 1,040 applications from straight couples and 189 from gay ones. Romney “apparently approved many more,” Baldwin says, “both before and after 2005, but we have not been able to get any records on them. There have been Freedom of Information Act requests to get more documents about this whole issue, but the state government has not been forthcoming.”

#ad#Scott Helman and Scott S. Greenberger reported in the Jan. 2, 2006, Boston Globe that “The applications Romney approved from same-sex couples included at least four from state legislators, including Jarrett T. Barrios, a state senator from Cambridge, members of the clergy from out of state, family members, and friends.”

Barrios married fellow Democrat Doug Hattaway, a campaign strategist, on Nov. 20, 2004. A copy of their Romney-issued marriage certificate is online here.

If Romney truly opposed gay marriage as fervently as he claims, he could have refused to grant these one-day licenses to same-sex couples. A tougher but fairer policy would have denied such licenses to everyone — gay or straight. Instead, under no obligation to do so, Romney chose to give these particular licenses to gay couples.

“In Iowa, I don’t care who you are, you do something like that, you’re going to have to explain yourself,” Leon Mosley, then-cochairman of Iowa’s Republican party, told Helman and Greenberger. “I don’t care if I am governor or not, I don’t rubber-stamp anything I don’t believe in.”

Joan Wheeler, former chairwoman of the Cherokee County (S.C.) Republicans, said of Romney: “In my opinion, it looks like he’s doing the opposite from what he believes.”

On a related matter, Boston Globe correspondent Michael Levenson reported on July 22, 2005, that gay activists “asked Romney to create a new birth certificate for the children of same-sex parents that would include gender-neutral nomenclature,” changing “Father” and “Mother” to “Parent A” and “Parent B.” “But Romney has resisted, arguing that the Legislature must first pass a law authorizing such a change.” Romney’s then-spokesman Eric Fehrnstrom explained that “we are proceeding cautiously in the absence of legislative guidance.”

But, in a parallel case, Romney had proceeded swiftly, rather than await legislation. Just 15 months earlier, as the Associated Press’s Jennifer Peter wrote on April 25, 2004, “Romney also has ordered changes to the state’s marriage application, replacing ‘bride’ and ‘groom’ with ‘Party A’ and ‘Party B.’”

In short, Romney was for “Person A” and “Person B” before he was against them.

Romney’s inconsistent words and deeds leave GOP voters two options.

Fans of gay marriage should thank Romney for these 189 or more instances in which he voluntarily used his gubernatorial authority to unite same-sex couples so they might live happily ever after.

Foes of gay matrimony should ask Mitt Romney if he really meant it when he said, “I have never supported same-sex marriage.” If so, why did he use his discretionary power to do just that — at least 189 times?

New York commentator Deroy Murdock is a columnist with the Scripps Howard News Service and a media fellow with the Hoover Institution on War, Revolution and Peace at Stanford University.

Deroy Murdock is a Manhattan-based Fox News contributor and a contributing editor of National Review Online, and a senior fellow with the London Center for Policy Research.

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