Did Mitt Romney Break The Law?

Debra J.M. Smith January 2007

The damage done while Mitt Romney was governor of Massachusetts:

What was the damage? The damage was Romney's order for government clerks to hand out marriage licenses for same-sex marriages. Reportedly, the order was also for officials to perform these marriages or to resign, forcing state employees to break state law. (Governors cannot make laws.)
"The people of this common wealth are not controlled by any other
laws than those to which their constitutional representative body have
given their consent." (Mass. Const. Part I, Article X)
Four judges out of seven in the Goodridge trial handed down an opinion that state legislatures should vote to allow the issuing of marriage licenses for same-sex marriages. Problem was, the state lawmakers would not come together to vote on it and Romney did not choose to force them to. Instead he took matters into his own hands and made his now infamous orders, then claimed he had to do it. 
Reports have it that Romney had planned all along to help out this less-than-righteous cause. A 1994 letter by Romney during a senate race has him pledging to be a "bigger supporter of homosexuals" than the incumbent senator. Rojo, an online site, quotes Tony Perkins (president of the Family Research Council) as having said Romney will, "have a hard time overcoming this." --2009 Update on Tony Perkins: Tony Perkins has since backed Romney. The Rojo page with the quote on it, went missing sometime during the election. The Family Research Council can no longer be trusted.
A recently publicized letter submitted to Romney before he left office, asserts discrepancies between his orders and the state  constitution, using excerpts from the constitution and court rulings.  While refuting Romney's actions, it urged him to reverse the resulting offense to the state constitution and rule of law before leaving office.

The letter, the work of numerous activists and attorneys, overseen by
www.massresistance.org, and headed up by the Parents’ Rights Coalition, is said to have been signed by forty-four signatories, some of whom are quite prominent in the conservative movement. It calls into question Romney's legal stance that he opposed same-sex marriage. Pointing out that  the state statute forbids such and that only state legislature can make laws, it attests that Romney went beyond his constitutional authority, even beyond the expectations of the collective liberal opinion of the four judges. 
On January 2nd, Massachusetts lawmakers kept alive a proposed constitutional amendment that would put a stop to same-sex marriages. It is the first vote for approval that is needed for the amendment to appear on the ballot in 2008. As long as it is approved by the next legislative session, it will then be put on the ballot for Massachusetts's voters in 2008. However, reports of 8,000 same-sex marriages that already exist in Massachusetts would remain to be treated as legal.

To date, Mitt Romney has not responded to the hand delivered letter to the governor's office. However, it is obvious that nothing pertaining to same-sex marriage was reversed before he left that office. The letter is said to be part of an ongoing effort to correct the wrong done.
Along with an amendment to the state constitution denouncing such 'marriages,' there needs to be a declaration stating that marriage licenses issued for same-sex marriages in Massachusetts are, in fact, in violation of state law and are therefore not legally binding.
"Error is a stranger to no man.
Courage to correct errors, visits only a few."
© Copyright 2007 Debra J.M. Smith

The Letter To Romney
December of 2006
Edited by Debra J.M. Smith for brief conciseness;
From the original signed letter, written by John Haskins.
(The original version: Click Here.)

To:  Governor Mitt Romney


It is of grave importance to the future respect of the constitution of the great state of Massachusetts, and the people thereof, that in these last few weeks left in your term as governor, you take firm action on the issue of same-sex "marriage." As governor, you have the authority to reverse what has been done.


We are not seeking by way of this letter to argue the issue of same sex "marriage" in Massachusetts, but rather the way in which it was executed into practice. The facts pointed out in this letter call for an immediate end to the distribution of same-sex "marriage" licenses in Massachusetts and the nullification of those licenses previously issued in direct violation of Massachusetts's law, rendering them illegal.


The Massachusetts Constitution denies the Judicial Branch any role in marriage policy:


"All causes of marriage shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision." (Part the second, Ch. III, Article V.)


In hearing the Goodridge case and issuing an opinion, four of the seven judges violated the Supreme Law of Massachusetts. Massachusetts courts have admitted on other occasions that neither they, nor legislators, nor the governor are authorized to violate the Constitution:


"(The words of the Constitution) are mandatory and not simply directory.  They are highly important. There must be compliance with them."  (Town of Mount Washington v. Cook 288 Mass. 67)


Nevertheless, after these judges issued an illegal opinion, you told the citizens of Massachusetts and all of America that you had no choice but to "execute the law." However, there was no law, but rather the judges' collective opinion. (Judges do not make laws.)


It is imperative for you as the governor of Massachusetts to uphold the state constitution, which requires treating an unconstitutional judiciary ruling as void (as President Thomas Jefferson did in Marbury v. Madison).  An unconstitutional ruling is grounds to be seen as an illegal ruling; in this case it was a ruling that affected only the specific plaintiffs (Abraham Lincoln refused to accept the Dred Scott ruling as law, pointing out that judges do not make law). 


By asserting that the court's opinion was a "law" and thus binding, instead of using the constitutional legislature avenue for making laws, you issued the first same-sex marriage licenses in American history and inadvertently did so illegally.


The Massachusetts Constitution does not confirm your statements or your actions:


    "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 THE FIRST, Article X.)


The Constitution also disproves your assertion to the nation that the marriage statute (M.G.L. Chapter 207) was somehow suspended or nullified by the four judges:


    "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, to be exercised in such particular cases only as the legislature shall expressly provide for."  (PART THE FIRST, Article XX.)


Under the Massachusetts Constitution judges cannot suspend or alter statutes.  This principle is clearly fundamental to Massachusetts' system of government and is restated in multiple ways.


    "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 THE FIRST, Article XXX.)


We note that the Massachusetts Constitution so completely protects citizens from the rule of judges that even laws passed in the Colonial period before the Constitution itself was ratified cannot be suspended by judges:


    "All the laws which have heretofore been adopted, used and approved . shall still remain and be in full force, until altered or repealed by the legislature." (PART THE SECOND, Article VI.)


Even this same court is forced to admit:


"The Constitution as framed is the only guide. To change its terms is within the power of the people alone."  (Opinion of the Justices, 220 Mass. 613, 618)


We note Massachusetts Chief Justice Hutchison's words in 1767: "laws should be established, else Judges and Juries must go according to their Reason, that is, their Will" and "[T]he Judge should never be the Legislator: Because, then the Will of the Judge would be the Law: and this tends to a State of Slavery.' " As Judge Swift put it in 1795, courts "ought never to be allowed to depart from the well known boundaries of express law, into the wide fields of discretion."


Regarding your statements of the authority of Goodridge and 180-day instruction to the Legislature (which is illegal to begin with), the same court had admitted in 1992 that they cannot issue an order to the legislature or the governor:


"The courts [instructing] when and how to perform...constitutional duties" (mandamus) "is not available against the Legislature [or] against the Governor)." "The...principles expressed in...the Massachusetts Constitution...call for the judiciary to refrain from intruding into the power and function of another branch of government." (LIMITS v. President of the Senate, 414 Mass. 31, 31 n.3, 35 (1992)


We also note this ruling in 1969: "an unconstitutional overreaching by the judiciary is an act that is "not only not warranted but, indeed, [is] precluded." (Commonwealth v. Leis)


We note that even the Goodridge majority said they were not suspending the marriage statute:


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


In fact, they admitted that under the statute, Chapter 207 of the Massachusetts General Laws, same-sex marriage is illegal: "We conclude, as did the judge, that M.G.L. c. 207 may not be construed to permit same-sex couples to marry." 


Moreover, we note there is nothing in the Goodridge ruling asked or pretended to authorize the governor to violate the statute in the event that the Legislature would not repeal it.


We also note that the statute remains in the Massachusetts General Laws and has never been stricken, suspended or nullified. The court itself has previously clarified your obligation:

"But the statute, so long as it stands, imposes upon both branches [of the Legislature] uniformity of procedure so far as concerns this particular matter. One branch cannot ignore it without a repeal of the statute. A repeal can be accomplished only by affirmative vote of both branches and approval by the governor." (Dinan v. Swig, 223 Mass. 516, 519 (1916)

Nevertheless, with no legislation authorizing you to do so, you ordered the Department of Public Health to change the words on marriage licenses from "husband" and "wife," to "Partner A" and "Partner B."  Stunningly, you later admitted that without enabling legislation you cannot change birth certificates in a similar manner.


We note that despite the court's admission that the statute prohibits same-sex marriage, and the Constitution's statement that only the Legislature can suspend laws, you ordered officials to perform same-sex marriages and thus violate the statute (a crime under c. 207 §48) and the oath of office. (Those who refused to go against their faith beliefs and or the laws of the state, you ordered to resign.)


This emboldened other local officials, including the mayor of Boston, to boast publicly that they would break the law by "marrying" out-of-state same-sex couples - also a crime under c. 207 §48.


In summary, while the four judges asserted that Chapter 207 is unconstitutional, they did not suspend the marriage statute and were powerless to do so. The legislature has not changed or repealed it. Therefore:


1.      The marriage statute is still in effect.

2.      The statute continues to prohibit same-sex marriages.


We note that you swore no oath to execute court opinions, but rather laws and the Constitution.  The same Massachusetts high court itself said in 1986: [The Executive branch] must "be faithful to the words of the statute ... as written, and an event or contingency for which no provision has been made does not justify judicial [or Executive Branch] legislation." (Amherst v. Attorney General, 398 Mass. 793)


You swore an oath to uphold the Constitution against assault from the other two branches. Your oath itself declares that it is violated on penalty of perjury, a felony.


¨      We urge you in the strongest possible way to fulfill the obligation imposed by the Constitution of Massachusetts upon the "Supreme Executive Magistrate" to uphold Massachusetts General Laws Chapter 207, the marriage statute. We call upon you to declare immediately in a formal written executive order that the Goodridge court does not have the authority to overrule the state constitution and that same-sex marriage therefore remains against the law in the state of Massachusetts.


¨      We urge you also to issue immediately a public memorandum from the Office of the Governor declaring members of the Legislature to be engaged in a conspiracy against the Constitution, to which the oath of office attaches the penalties of perjury -- a felony.


¨      We urge you to immediately notify the legislators, who openly conspired against the Constitution in denying the first marriage amendment petition a vote in 2002 that:


n   It was a violation of the oath of office, which is a constitutional felony.

n   It is a citizens' constitutional petition, an initiative that remains pending until brought to one of the five final actions, which the Constitution requires.

n   Their crime against the Constitution is perpetual and without statute of limitations.

n   Unless they vote, you must call them into session on that original marriage petition and  will order the state police to  arrest them and bring them to the chambers to vote (as the Governor of Texas ordered in May 2003 when Texas legislators refused to convene a quorum).


The signatories of this letter, sign here unto in the urgency of this matter, for you to declare immediately that same-sex "marriage" licenses issued in the state of Massachusetts are in fact in violation of state law and are therefore not legal.

            Permission to post the edited letter was given to me by the writer of the original letter, John Haskins.


© Debra J.M. Smith