Santorum is Right, Romney is Still Wrong

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By Steve Deace

At Thursday night’s Republican presidential debate, former Pennsylvania Senator Rick Santorum challenged Mitt Romney on the role he played in the destruction of marriage in Massachusetts while he was governor. Here was that exchange:

After the debate, Romney issued a challenge that Santorum wouldn’t be able to find any respected legal authorities that would agree with his characterization of Romney’s culpability.

Romney, as he has been on so many other things over the years, is wrong.

When I contacted Mat Staver, Founder and Chairman of Liberty Counsel, for his response to the exchange, he sent me the following statement:

Rick Santorum’s statement during the debate about Mitt Romney’s actions regarding same-sex marriage are correct. I litigated in Massachusetts by filing a suit in federal court to prevent the implementation of same-sex marriage. Due to federalism issues with the federal courts being asked to block a state court action, the federal courts were constrained not to get involved.

Having spent considerable time reviewing the Massachusetts Constitution, drafted by John Adams, I can say that the Massachusetts Constitution is unique with respect to marriage and domestic relations by vesting the authority over marriage to the Legislature. The provision is explicitly set forth in the Massachusetts Constitution. The Massachusetts Supreme Judicial Court ruled that the Legislature should act within a certain time to implement same-sex marriage, but the Legislature refused to act. Yet, Gov. Romney on his own went ahead of the Legislature and forced the implementation of same-sex marriage. Not only was he not required to implement same-sex marriage, the Massachusetts Constitution gave him no authority to do so. Gov. Romney should not have acted until the Legislature acted as that is the body vested by the Massachusetts Constitution with authority over marriage.

Sen. Rick Santorum was right and Gov. Mitt Romney was wrong.”

Staver is also the dean of Liberty University Law School. His work on behalf of constitutional law has been endorsed by three of the most pivotal figures in Christian political activism, who have since passed away — D. James Kennedy, Jerry Falwell, and Bill Bright. Staver is a trustee of the Supreme Court Historical Society. He’s written 11 books. He may or may not meet Gov. Romney’s definition of a respected legal mind, but his bio begs to differ.

Likewise, Dr. Herb Titus was the founding dean of the School of Public Policy at Regent University, and later served as the founding dean of Regent Law School. Before that he studied under Dr. Francis Schaeffer, and graduated from Harvard Law School. Titus has worked with the U.S. Justice Department, and is admitted to practice before the U.S. Supreme Court. His book God, Man, and Law is a must-read for anyone interested in preserving the rule of law for the next generation.

I contacted Dr. Titus on Friday morning for his response to the Santorum-Romney exchange. He replied back with the following:

“Rick Santorum challenged Mitt Romney to justify the former Massachusetts Governor’s decision to implement the Supreme Judicial Court of Massachusetts ruling that declared that the exclusion of otherwise qualified same-sex couples from civil marriage violated the state constitution.  

After the debate, Mr. Romney stated to Mr. Santorum that he did all that he legally could to stop the implementation of the court’s decision before he exercised his duty as Governor to enforce the court’s decision requiring local officials to issue marriage licenses to same-sex couples. He issued a challenge to Mr. Santorum to find any qualified legal authority that would not agree with him. I have been asked to meet that challenge.

I am a graduate of the Harvard Law School. I am an active member of the Virginia bar and the bar of a number of federal courts, including the United States Supreme Court. As a professor of constitutional law for nearly 30 years in four different ABA-approved law schools, and as a practicing lawyer, I have written a number of scholarly articles and legal briefs on a variety of constitutional subjects; including the nature of legislative, executive and judicial powers and the constitutional separation of those powers. 

I am generally familiar with the Massachusetts Constitution, and especially familiar with that constitution’s provision dictating that no department shall exercise the powers that belong to either of the other two departments “to the end it may be a government of laws and not of men.”

As Governor, Mr. Romney has claimed that he had no choice but to obey the Supreme Judicial Court’s opinion.  This claim is false for several reasons.

First, Mr. Romney was not a party to the case. Only parties to a case are bound to obey a court order. As President Abraham Lincoln said in support of his refusal to enforce the United States Supreme Court’s infamous Dred Scott case – the nation’s policy regarding slavery was not determined by a court opinion, even by the highest court of the land.  Likewise, the Commonwealth of Massachusetts’ policy regarding marriage may not be determined by the Supreme Judicial Court, the State’s highest court.

Second, the Supreme Judicial Court did not order any party to do anything.  Rather, it issued only a declaration that, in its opinion, excluding otherwise qualified same-sex couples access to civil marriage was unconstitutional. Thus, even the Massachusetts Department of Health, which was a party to the case, was not ordered to do anything.

Third, the Massachusetts Board of Health was not authorized by statute to issue marriage licenses. That was a job for Justices of the Peace and town clerks. The only task assigned by the Legislature to the Board of Health was to record the marriage license; it had no power to issue them even to heterosexual couples. So the Department of Health, the only defendant in the case, could not legally have complied with an order to issue marriage licenses to same-sex couples.

Fourth, if the court were to order the Department of Health to issue marriage licenses to same-sex couples, then Mr. Romney’s duty as governor would have been to instruct the Department that it had no authority to do what the court ordered. Nor could the court confer such authority, such an authorization being in nature a legislative, not a judicial, act.

Fifth, the decision whether to implement the Supreme Judicial Court’s opinion was, as the court itself acknowledged, for “the Legislature to take such action as it may deem appropriate in light of [the court’s] opinion.” By the very terms of the order, the Massachusetts legislature had discretion to do nothing.

Sixth, because the legislature did nothing, Mr. Romney had no power to act to implement the court decision. By ordering justices of the peace, town clerks, and other officials authorized to issue marriage licenses to issue marriage licenses to same-sex couples, Mr. Romney unconstitutionally usurped legislative power, a power denied him by the Massachusetts constitution that separated the three kinds of powers into three different departments.

A 2007 article from World Net Daily quotes a slew of respected legal minds in criticizing Romney for his role in destroying marriage in Massachusetts, including Phyllis Schlafly.

“Romney said we had to follow the law but what law,” Schlafly is quoted as asking in the article. “There is no law that requires or even allows same-sex marriages (in Massachusetts).”

Finally, there is this 2006 letter sent to Romney as he was departing as governor by a long list of conservative activists from around the country. It includes signers like Paul Weyrich, one of the Founding Fathers of the conservative movement, and Robert Knight, one of the original drafters of the Defense of Marriage Act signed into law by then-President Clinton. The letter also reinforces the claims made by Santorum about what Romney did to marriage in Massachusetts.

Just days after giving a speech touting his conservative credentials at the 2011 Values Voters Summit, Romney told a New Hampshire audience in October that he is a supporter of civil unions, which is really just so-called homosexual marriage by another name.

Yet again Romney is found to be playing fast and loose with the truth. Voters should be thanking Santorum for calling him on it.