What Governor Romney Could Have Done to Stop Same-Sex Marriage

John C. Rankin (August 9, 2007)

A good Christian friend of mine contacted me several months ago, asking if I would be willing to serve on the “National Faith and Values Steering Committees” of the Romney Presidential Campaign. Now apart from other reasons, one reason I could not do so is due to Romney’s failure to take his constitutional executive power to hold an out-of-control Massachusetts Supreme Judicial Court accountable. So I was put in touch with the Romney campaign, hoping first to raise my concerns with Governor Romney himself. That did not happen, but I was able to communicate with a member of his staff, who was very gracious as he sought answers to my questions from the campaign’s legal staff. I was unsatisfied with their answers.

The Supreme Judicial Court (SJC) forced same-sex marriage upon the Massachusetts Legislature in its 2003 Goodridge decision, being emboldened by the same Legislature who had just mocked the will of the people calling for a statewide referendum on the definition of marriage. Thus, what was within Governor Mitt Romney’s power to act?

Constitutionally speaking, the SJC is only empowered to interpret the law, not make the law. Yet Romney acquiesced to the SJC’s bald power grab to force the Legislature to make same-sex marriage legal.

Specifically, Governor Romney could have easily exercised his constitutional power as the chief executive officer and called the Legislature into special session.

1. In the Massachusetts Constitution, Part the Second, Chapter 3, on the Judiciary, Article 1, we have critical language that says: “All judicial officers, duly appointed, commissioned and sworn, shall hold their offices during good behavior, excepting such concerning whom there is different provision made in the constitution; provided nonetheless, the governor, with consent of the council, may remove them upon the address of both houses of the legislature.”
2. In Article 2 on the Judiciary, as amended by Amendment 85, it states: “Each branch of the legislature, as well as the governor or council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.”
3. And as specifically itemized in Article 5 on the Judiciary: “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.”

Governor Romney could have called the members of the SJC into pubic session before the joint assembly of the Senate and House, and challenged their unconstitutional usurpation of power in Goodridge, and dismissed any from the bench who would not recognize the SJC’s constitutional limits; and/or for lack of “good behavior.” This is a rarely invoked clause, indicating moral failure, but Goodridge was a rare violation of due process. The moral failure was the deliberate breach of the separation of powers, and sadly, the Legislature invited it due to their mockery of the consent of the governed (i.e., Article V of Part the First).

The members of the SJC were legally required to appear before such a constitutional assembly. Chief Justice Margaret Marshall and Justice John Greaney in particular may well have refused to come, citing a perverse “separation of powers” dogma rooted not in the constitution, but in their activist philosophy, and thus ratcheting up their “bad behavior.” They would have feared public accountability for the rationale of their ruling, for the challenges that dissenting Justices Martha Sosman and Robert Cordy would have given them face to face in such a session, and especially because their interest was not in publicly sustainable argument, but in secretive deliberations, written from the other side of an opaque barrier of demagoguery. It would have been a public relations triumph for Governor Romney no matter how the details unfolded.

But far more importantly, here was the most marvelous opportunity in the nation, in many years, for a Governor to defend and strengthen the constitutional separation of powers, and to check runaway judicial activism. But Romney not only caved to the SJC, and to the onslaught the Boston Globe and New York Times would have given him, but I saw no articulation on his part concerning the gravity of the separation of powers issue staring him in the face.

Below is part of the argument I have made during these recent years. If Governor Romney had exercised the constitutional fidelity to enforce the separation of powers and hold the SJC accountable, then the four questions listed below, had he had knowledge to pose them, would have sealed the debate, and the four majority members of the Goodridge decision would have been unable to overcome the substance.

___________________________________

A Federal Issue

The matter of same-sex marriage is a federal issue, going to the core of our national well-being.

The legalization of same-sex marriage undercuts our unique basis in unalienable rights given by the Creator, and as a result, it speeds the decay of First Amendment liberties for all citizens, beginning with religious liberty. This has already happened in Massachusetts, where Catholic Charities can no longer express its religious liberty to provide adoption services to those who wish to avail themselves of such service. In other nations and states, a relentless creep is noted where the freedom of dissent, in belief and speech, toward this new homosexual orthodoxy, is being culturally and legally opposed.

We are a nation united not by heredity of privilege, but by the powerful idea of unalienable rights, and that idea, and hence the union of the States, is now in jeopardy.

In Massachusetts

In the Goodridge decision, the language of Chief Justice Margaret Marshall purposes to define same-sex marriage as a constitutionally protected civil “right,” and also, syntactically as a “fundamental right.”

Then, in Justice John Greaney’s concurring opinion, same-sex marriage is directly linked with the language of Part the First, Article 1 of the Massachusetts Constitution, quoting it accordingly, which syntactically includes the Article’s language of “unalienable rights,” and along with the Chief Justice, specifically itemizes such rights as choice, property and happiness. This linkage will not go unnoticed in future litigation concerning an expansive view of same-sex marriage and homosexual rights qua homosexual rights.

Yet too, in Chief Justice Marshall’s majority opinion, she also states that the government creates civil marriage as a “civil right,” and it does so as a “wholly secular institution.” This presents a future and nationally encompassing conflict, as Goodridge creates within itself a contradiction of terms.

Namely, “unalienable rights” are those rights that are above the power of human government to define, give or take away. In the grand experiment of these United States, the only valid human government is that which first acknowledges these rights – life, liberty, property and thus the power to pursue happiness. Human government may not tinker with these rights. Since unalienable rights come from the Creator, how then does a wholly secular institution relate to such an idea? Goodridge does so by inventing a new civil right, and shrewdly inviting it into the domain of unalienable rights. In so doing, unalienable rights are compromised and secularized, they become no longer unalienable but subject to political considerations, and hence, the universal appeal to equal protection for all peoples is jeopardized. Once unalienable rights are thus redefined, all “rights” become subjective, the opposite of objective equality.

There are four salient points of historical fact:

1. In these United States, the civil rights we all enjoy are rooted originally in the Declaration of Independence, in the “Law of Nature and of Nature’s God,” as we are endowed by our “Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” In Part the First of the Massachusetts Constitution, penned shortly thereafter, the linkage of unalienable rights with the Creator is likewise in place; and in the Fifth and Fourteenth Amendments to the U.S. Constitution, no person may be deprived of “life, liberty, or property,” without due process of law. These Amendments are dependent on the assumptions of the Declaration. And their use of “property,” consistent with John Locke’s antecedent language, equals the legal embodiment of Thomas Jefferson’s philosophic words in the Declaration, “pursuit of happiness.”
2. The unique Source for unalienable rights, the Creator, is a reference to the God of the Bible. When our founding fathers sought moral justification to dissolve the political bonds between the Colonies and Great Britain, they did not appeal to any human authority, but to the one Source that even King George III could not supercede. No pagan deity or intrinsically secular concept in history has ever defined or extended any rights to the people that are above the power of human government to redefine or abrogate. And since the amorphous and ahistorical deity of the Enlightenment is by definition unconcerned with human affairs, unalienable rights are not located there either. Only the God identified in the biblical Genesis defines and gives these rights as unalienable, and this is the Creator to whom the Signers of the Declaration appealed.
3. In the biblical order of creation, in the goodness of the social order prior to the brokenness of human trust, the Creator defines marriage as the union of one man and one woman. There is no explicit presence or even an implicit possibility of homosexual unions. Thus, the Source for our unalienable rights also gives us the original definition of marriage, one affirmed across cultures and the millennia as the ideal.
4. In human history, no society rooted in the approval of homosexuality, in any fashion, has ever conceived of or produced unalienable rights for the larger social order.

This is an argument from history – with no denominational, doctrinal or institutional church polity issues in view. Namely, of the 56 Signers to the Declaration, 55 were Protestant and one was Roman Catholic. Most were theologically orthodox, some were heterodox. They accomplished something unique in the history of the modern nation-state – they did not impose their own religious creeds on the nation, which is to say, they called for no national religion in the particularistic or exclusionary sense. Rather, they appealed to a fully Christian and pre-Christian, to a fully Jewish and pre-Jewish, to a fully human and universal understanding of the good Creator.

Thus, as Article VI of the U.S. Constitution frees candidates and office holders from any religious test, so too the First Amendment predicates the liberties of speech, press, assembly and redress of government on the prior reality of religious liberty. Without the freedom to believe (whether religious or secular in nature), we cannot speak what we believe, publish what we believe, assemble on the basis of our beliefs, or redress the government based on our beliefs.

These unalienable rights of life, liberty and property, and hence the power to pursue happiness within the common polity, are extended to all people equally, regardless of how much their religious beliefs and/or sexual identities may differ from those of the founding fathers, or from any of us who affirm marriage as one man and one woman. Now, the Signers did not fully measure up to the Source for unalienable rights, as the abolition of slavery and the advent of women’s suffrage were still many years away. But in appealing to the Source for unalienable rights, they made themselves and the new nation ultimately accountable to an equality assumed in the biblical order of creation. Same-Sex marriage, in order to equate itself with this civil rights tradition, must root itself likewise, but it cannot.

So, while there is no need for someone to believe in the God of the Bible, or in any god, or in biblical sexual mores in order to deserve unalienable rights, a fundamental conflict still remains. Namely, same-sex marriage as a “civil right” cannot be rooted in the unalienable rights given by the Creator. This debate brings us to a crossroads on the future of the nation, for whereas Goodridge acknowledges that the definition of civil marriage is at stake, and it is, it is far deeper than that. The definition of unalienable rights, and hence civil rights, is the most fundamental concern. Therefore, same-sex marriage advocates need to address four questions:

1. Are civil rights being redefined?
2. If so, why?
3. If so, what is the new basis for these rights?
4. What are the consequences?

As I have posed these questions to same-sex marriage leaders in forums at Boston University, Smith College and Harvard University, and in a published two-page ad in the Hartford Courant signed by 700 ministers in the state, and elsewhere, there is a deafening silence. In truth, it is either unalienable rights given by the Creator, or else it is humanly defined rights, where those in political power define the rights or lack thereof for those under them, with no appeal to transcendent rights possible. Or to sum it up more baldly: It is either unalienable rights or “might makes right.” When it is “might makes right,” then all people not in political power are in danger, homosexual persons equally so.

There is a haunting question and scenario, and will be it addressed up front, or only after serious constitutional damage is done? Namely, let’s say that in due course a homosexual couple approaches a Jewish Rabbi, Roman Catholic Priest, Protestant Minister, or et al. in Massachusetts, and asks to be married. If the clergy person involved says no, according to his or her religious convictions, what would prevent the homosexual couple from filing a lawsuit in Superior Court, claiming that they were being denied their “fundamental civil right,” or indeed, even their “unalienable right” to same-sex marriage? Would religious liberty be more or less fundamental, and if same-sex marriage is “unalienable,” then no human action has the legal right to hinder it in any capacity. Could not that rabbi, priest or minister be liable to a lawsuit seeking civil penalties for such an action or “hate crime,” imprisonment, loss of privilege to perform legal wedding ceremonies for heterosexual couples, or even revocation of their synagogue or church’s tax exempt status?

The Massachusetts Equal Rights Amendment was set forth specifically against a backdrop which disavowed any linkage to homosexual marriage, as Goodridge noted. Yet Goodridge, and its requirement for Massachusetts Lawmakers to legislate accordingly, also dismissed this concern out of hand while using its language to justify same-sex marriage. Thus, we see that the concern for religious liberty is sober.

In the name of redefining civil marriage, the Goodridge decision of the Massachusetts Supreme Judicial Court does something even more precipitous regarding our national well-being.

1. Goodridge redefines our national basis for unalienable rights, effectively dispensing with the historical Source for and nature of these and their cognate civil rights;
2. Goodridge thus invites further new definitions for civil rights which have no transcendent appeal;
3. Goodridge’s new definition of civil rights thus descends into a contest of “might makes right” according to who holds political power in a given season; and thus
4. Goodridge makes casualty of the First Amendment, beginning with its foundational religious liberty.

###