The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To America
Part VII - Mass. Same-Sex "Marriages" Are Legally Void
Massachusetts same-sex “marriages” are, therefore, legally void and Governor Romney was and remains under a Constitutional and sworn duty to acknowledge this reality.
“Massachusetts since 1780 has been governed by a written Constitution, wherein the various organs of government are enumerated and their powers defined. The people themselves and all branches of their government, legislative, executive, and judicial alike, are bound by it and owe to it implicit obedience. . . . Since the people have themselves adopted the Constitution with its amendments for their government, they are bound by the provisions and conditions which they themselves have placed in it[. For instance,] when they seek to enact laws by direct popular vote they must do so in strict compliance with those provisions and conditions.” Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951). Likewise, when the SJC and the Governor act, they must (not unlike the people) “do so in strict compliance” with the words of the Constitution.[128]
“[I]t is always to be presumed that a coordinate branch of the government has acted within the limits of its constitutional authority, until the contrary shall clearly and satisfactorily appear.” [129] When any one of the branches of government acts outside its Constitutional authority, those unlawful actions are null and void.[130] For example, the legislature cannot supplant the judicial function.[131] Similarly, the executive cannot perform a legislative function.[132] The same applies to unconstitutional acts of the Judiciary[133] as well. Exceeding the scope of legal authority granted to or overreaching the jurisdiction bestowed upon a court, is a nullity.[134] It is quite clear that the act of granting a license must be annulled when the law does not permit its issuance.[135]
Simply because the SJC ignored the explicit words of the Constitution in no way required Governor Romney to do the same.[136] Article 30 creates a separation of powers among the branches of government[137] and our democracy depends on this separation.[138] No branch of government is required to seek from another branch permission to assert its Constitutional duties.[139] To the contrary, when one branch of government attempts to perform an unconstitutional function that it has no right to perform, as the SJC has done in Goodridge, it is the duty of the other branches to check that power and prevent its misuse and usurpation.[140] Even the doctrine of stare decisis does not require the Court to be bound by its own prior illogical decisions.[141]
For separation of powers to mean anything then, it is fully within the discretion and authority of the Governor to not honor (i.e., ignore) the void and unconstitutional actions of the other branches of government – in the very same way that the SJC ignores the legislature’s unconstitutional actions as well as the illegal actions of the executive branch.[142] The SJC cannot, through the use of an unauthorized/unconstitutional declaration, prevent the Governor from performing his responsibilities to the people to execute the laws of the Commonwealth.[143]
Each branch is separate, and each is equal. Separation of powers is not some meaningless, abstract, wishful thought free of any practical application.[144] Rather when observed, it ensures that we remain a government “of the people, by the people, for the people.”[145] Each branch may and sometimes must act independently.[146] Otherwise the doctrine of separation of powers is a meaningless concept.[147]
This is self-evident, but the Court’s majority was confident that neither the Legislature, nor the press, nor the civic culture of the Commonwealth would have the will or desire to call their bluff. Nor, as it turned out, would the governor, who was bound by his oath to the Constitution to reject the Goodridge ruling as meaningless, at the very least until the Legislature rescinded the existing marriage law in order to please the court. But only a very small minority of legislators were willing to even consider voting to establish homosexual marriage. Thus when Governor Romney ordered state officials to begin issuing marriage licenses to homosexual couples, he was going far beyond what the Court, the Legislature, and the people expected him to do. More than that, he was violating the Constitution he had sworn to defend. Not even the Marshall court majority implied in even the faintest way that it fell upon the governor as chief executive to ignore the still binding law of the Commonwealth and issue orders that violated that law and violated the Constitution’s Separation of Powers. To the constitutionally ignorant (which now includes Justice Roderick Ireland of the Massachusetts Supreme Judicial Court),[148] the governor’s actions had and have today the appearance of being forced by the Goodridge ruling. Governor Romney’s public statements have repeatedly cloaked his unconstitutional actions as a mere carrying out of the law. In fact, it is not possible to even argue such, since Massachusetts law to this day defines marriage just as it has for well over two centuries.
Governor Romney acquiesced in the SJC decision and actively authorized same-sex “marriage.” Resembling what the Emperor saw in the mirror, Romney’s reliance on the SJC’s decision to justify his subsequent actions, therefore, was based on nothing.
Although he does not like to take credit for it, on April 26, 2003, Governor Romney, without being authorized by the legislature ordered the terms on the official marriage certificate changed[149] and in May he ordered the town clerks, even ones with religious conscience concerns, to solemnize the marriages.[150] In so doing, Governor Romney failed “to act in strict compliance with the words of the Constitution” and failed to execute the laws of the Commonwealth. He also placed the public officials in criminal jeopardy, but for the fact that he will not enforce the marriage statute, which prohibits the certification of and solemnization of marriages that violate the marriage statute.
The truth is, Governor Romney knew the SJC had violated the Constitution.[151] In a Wall Street Journal editorial he said:
With the Dred Scott case, decided four years before he took office, President Lincoln faced a judicial decision that he believed was terribly wrong and badly misinterpreted the U.S. Constitution. Here is what Lincoln said: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal." By its decision, the Supreme Judicial Court of Massachusetts circumvented the Legislature and the executive, and assumed to itself the power of legislating. That's wrong.[152]
Romney, therefore, also knew he had no duty, nor any legal power, to change the documents or issue marriage certificates. Indeed, his duty was to uphold the laws of the Commonwealth and, therefore, to do the exact opposite of what he did.[153]
So then, what is the legal status of the licenses that have allegedly been certified and the “marriages” that have purportedly been solemnized without legal authority? The answer lies in the venerable legal principle that one can only receive the title (power, authority, ownership) that one has been given; that is, a person can stand in no greater position, nor obtain greater ownership than that which was transferred.[154] Nemo dat qui non habet (“You cannot give what you do not have”). Thus, no matter how many licenses the town clerks churn out, neither the statute, nor the Constitution permit same-sex “marriage.” Governor Romney’s lack of power and his failure to execute the laws of Massachusetts means that “no valid [marriage certificate] has been issued.[155] . . . Only by preserving this fundamental principle can constitutional government be preserved and orderly progress assured.”[156] “It would be astonishing and intolerable if the [words] so carefully inserted in the [Constitution] could be disregarded by [the Supreme Judicial Court and the Governor] without consequence and so in effect turned into mere admonitions and recommendations. The Constitution is not ordinarily treated in that manner.” Sears v. Treasurer and Reciever General, 327 Mass. 310, 321-22 (1951).
The power the Governor lacked (both because the SJC had no authority to authorize any “marriage” that contradicts the word embedded in the Constitution and because the statute continues to prohibit same-sex “marriage” since it has not been changed, nor repealed), makes the “marriage” certificates, that have been and are being handed out by town clerks to same-sex couples, void. They were void from their inception because there was and there continues to be no legal authority to issue them.[157] Couples holding those same-sex “marriage” licenses hold nothing because issuing “marriage” certificates (pursuant to Chapter 207) to same-sex couples is a legal impossibility.[158] There was no authority to issue the certificates nor to solemnize the relationships and, therefore, they are void.[159]
ENDNOTE
[128] Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951); See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 247--248.
[129] Moore v. Election Comm'rs of Cambridge, 309 Mass. 303 (1941), quoting Chief Justice Shaw, in Commonwealth v. Blackington, 24 Pick. 352, 355—356.).
[130] See Pennoyer v. Neff, 95 U.S. 714 (1877) ('Any exertion of authority of this sort beyond this limit,' says Story, 'is a mere nullity, and incapable of binding.”); Luscomb v. Bowker, 334 Mass. 468 (1956) ("The house of representatives is not the final judge of its own powers and privileges in cases in which the rights and liberties of the subject are concerned; but the legality of its action may be examined and determined by this court. . . . living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity with the Constitution; and if they have not been, to treat their acts as null and void."). See also Vasquez, petitioner, 428 Mass. 842 (1999) (citing World-Wide Volkswagen Corp., supra at 291 ("A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere"). . . . The petitioner's claim is more properly viewed as an argument that Oregon has no legislative jurisdiction to criminalize acts that occur outside the boundaries of the State.”); Commonwealth v. Vascovitch Jr., 40 Mass. App. Ct. 62 (“Article 30 creates a separation of powers among the branches of government giving the prosecutor broad discretion in determining whether to prosecute a case. Shepard v. Attorney Gen., 409 Mass. 398, 401 (1991). . . . the record reflects that the Commonwealth objected and that there was no independent legal basis for the dismissal, and, therefore, the dismissal cannot stand. The judge's dismissal also unconstitutionally usurped the Legislature's power to prescribe punishment for criminal conduct.”); See e.g., Bottomly v. Kabachnick, 13 Mass. App. Ct. 480 (1982) (“The manner in which the notice of the proposed sale shall be given is one of the important terms of the power and a strict compliance with it is essential to the valid exercise of the power." McGreevey v. Charlestown Five Cents Sav. Bank, 294 Mass. 480, 483--484 (1936). Tamburello v. Monahan, 321 Mass. 445, 447 (1947). According to this line of cases, the first foreclosure sale now in issue must be viewed as a nullity; it is as if no such sale had been made. See Montague v. Dawes, 96 Mass. 369, 374 (1867); Moore v. Dick, 187 Mass. at 212. Cf. Bernhardt v. Atlantic Fin. Corp., 311 Mass. 183, 191 (1942). Because the first foreclosure sale was void as matter of law, the defendant cannot be found liable to the plaintiffs for breach of contract. See Levenson v. Cambridge Sav. Bank, 258 Mass. 468, 469 (1927).”); Casieri's Case, 286 Mass. 50 (1934) (“The final decree ... was a judgment of a court. The Legislature cannot exercise judicial powers. That is prohibited by the clear words of art. 30 of the Declaration of Rights of our Constitution. Any legislative attempt to that end would be a nullity.”).
[131] Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 321 (1951) ("The question whether or not the requirements of the Constitution have been observed and a valid law has been enacted is a justiciable question to be determined in the last analysis by the judicial department of the government . . .it would be clear that the Legislature attempted to define the bounds of the constitutional right to trial by jury. Article 30 prohibits the Legislature from performing this judicial function. It is the exclusive function of the judiciary to determine this. Under art. 30, the Legislature may not supplant our decision.”); Commonwealth v. Sheehy, 412 Mass. 235 (1992) (“It is the judiciary's role to be the final arbiter of the essence of the rights guaranteed by our State Constitution. See, e.g., Opinions of the Justices, 387 Mass. 1201, 1206 (1982) (provision in school prayer bill stating that bill does not establish religion invades judicial province)”).
[132] See Mass. Bay Transportation Authority Advisory Bd. v. Mass. Bay Transportation Authority, 382 Mass. 569 (1981) (“The Governor could not by executive order, in the absence of legislative authority, suspend the operation of G. L. c. 161A, § 5 (i).”).
[133] See Mass. Bay Transportation Authority Advisory Bd. v. Mass. Bay Transportation Authority, 382 Mass. 569 (1981) (“The Governor could not by executive order, in the absence of legislative authority, suspend the operation of G. L. c. 161A, § 5 (i). . . . Nor could we.”) (emphasis added). See also Comm'r of Public Health v. The Bessie M. Burke Memorial Hospital, 366 Mass. 734 (1975) (“When one takes into account the historical basis of art. 20 in the attempts of the Crown to suspend the laws or operation of the laws without consent of Parliament,(fn13) one must agree with the occasional remarks in the decided cases that the core meaning of art. 20 is that only the Legislature, not the Executive or Judicial branches, may suspend an existing law.); Hancock v. Commissioner of Education, 443 Mass. 428 (2005).
[134] See e.g., Guardianship of Anthony, 402 Mass. 723, 727 (1988) (“[I]n appropriate circumstances, a court may direct a public official to carry out a statutory duty, and, when there is only one way in which that can be accomplished, to order the official to proceed in that one way. But . . . , the circumstances of this case are not appropriate for such an order. No statute requires the department or its agents to conduct medical tests for AIDS. Moreover, there are no findings, and there is nothing in the record which would support findings, that permit the conclusion that testing for AIDS is an appropriate, let alone the only, means by which the department may fulfill any of its statutory duties. Thus, the judge's order constitutes an impermissible "poaching by the judicial branch on executive and legislative territories. . . . However, the order subject to this review was not the product of the judge's focus "with an eye single to the welfare of the ward." Rather, the genesis of the order appears to be the judge's perception that the order was appropriate to meet a threat to the health of the Templeton Colony. Thus, the order was not within the court's jurisdiction based on guardianship. . . . the judge's order constitutes an impermissible "poaching by the judicial branch on executive and legislative territories," Attorney Gen. v. Sheriff of Suffolk County, supra at 631. The order is vacated, and the case is remanded to the Probate and Family Court for such further guardianship proceedings as may be appropriate.”); see also Commonwealth v. Cheney, 440 Mass. 568 (2003) (“Thus, when a judge, "[w]ithout any legal basis . . . preempt[s] the Commonwealth's presentation of its case [t]hat action effectively usurp[s] the decision-making authority constitutionally allocated to the executive branch." . . . Burlington v. District Attorney for the N. Dist., 381 Mass. 717, 721 (1980) ("virtual exclusion of judicial intervention to check or correct the district attorney in the [decision to nol pros] . . . follows from Part I, art. 30 of the Massachusetts Constitution declaring a separation of powers"); Commonwealth v. Hart, 149 Mass. 7, 8 (1889) ("Only an attorney authorized by the Commonwealth to represent it has authority to declare that he will not further prosecute a case in behalf of the Commonwealth. A court is not a prosecuting officer, and does not act as the attorney for the Commonwealth. Its office is judicial, -- to hear and determine between the Commonwealth and the defendant").”); Matter of McKnight, 406 Mass. 787, 792 (1990) ("The guardianship, however, did not invest the Probate Court with the authority to order the department to do anything that the department was not willing to do or required to do as a matter of law. A court, of course, may not properly exercise the functions of the executive branch of State government.”); Commonwealth v. Gordon, 410 Mass. 498, 500 (1991) (a court has no power to dismiss an indictment or complaint).
[135] See Werner v. Bd. of Appeals of Harwich, 2 Mass. App. Ct. 647, 650 (1974) (“The decision of the board granting the special permit must be annulled because the Harwich zoning by-law does not allow the issuance of a special permit for the construction of nonconforming buildings additional to, and separate from, existing nonconforming buildings.”); see also Goodwin v. Bd. of Selectmen of Hopkinton, 358 Mass. 164, 169 (1970) (“Formerly the zoning enabling statute was the only source of municipal authority to regulate the removal of material from the land. Such regulation could not be accomplished by an ordinance or by-law other than a zoning ordinance or by-law.”); Planning Bd. of Easton v. Koenig, 12 Mass. App. Ct. 1009, 1010 (1981) (“We conclude only that the zoning board of appeals was without jurisdiction to grant a building permit to the Koenigs and that its decision to do so is void.”); Quinlan v. Mealey, 270 Mass. 284, 286 (1930) (“When the contract was made the conservator had no legal authority to use or dispose of the property of his ward in any manner other than he was authorized to do by the Probate Court. Performance of the agreement at the death of the husband, while then possible in fact, was impossible within limits legally possible when the agreement was made and ever after. The legal impossibility was apparent on the face of the attempted contract. The contract was void, and the plaintiff was not entitled to damages for the defendant's refusal to perform it.”); Mealey v. Fegan, 274 Mass. 599] (“This court held that such a contract was void as "the conservator had no legal authority to use or dispose of the property of his ward in any manner other than he was authorized to do by the Probate Court," and sustained a directed verdict for the defendant. Quinlan v. Mealey, 270 Mass. 284, 286.”).
[136] See O'Coin's Inc. v. Treasurer of the County of Worcester, 362 Mass. 507 (1972) (“It was certainly never intended that any one department, through the exercise of its acknowledged powers, should be able to prevent another department from fulfilling its responsibilities to the people under the Constitution.”); Alliance, AFSCME/SEIU, AFL-CIO v. Secretary of Administration, 413 Mass. 377 (1992) (the Court cannot compel the Governor to act).
[137] Part I, c.1, Article XXX (“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: 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.”); See Commonwealth v. Pellegrini, 414 Mass. 402 (1993) (Under our system of government, Courts are to give deference to legislative judgments. Shell Oil Co. v. Revere, 383 Mass. 682 (1981). This “reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the ‘undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature.’ Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977).” Shell Oil Co. v. Revere, 383 Mass. 682 (1981). Thus, it is not the court's function to launch an inquiry to resolve a debate which has already been settled in the legislative forum. "[I]t [is] the judge's duty ... to give effect to the will of the people as expressed in the statute by their representative body. It is in this way ... that the doctrine of separation of powers is given meaning." Commonwealth v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring). Shell Oil Co. v. Revere, 383 Mass. 682 (1981).
[138] McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 607 (1993) (John Adams “offered that "there is no good government but what is republican." Thoughts on Government, in 4 Works of John Adams 194 (C.F. Adams ed. 1851). He described the requirements of a Constitution for a republican government. He prescribed a tripartite system of government in which the executive, legislative, and judicial branches are independent of one another . . .”); See also Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Cordy, J. dissenting) (“The "time tested wisdom of the separation of powers" requires courts to avoid "judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539, 540 (1996), cert. denied, 520 U.S. 1131 (1997), quoting Commonwealth v. A Juvenile, 368 Mass. 580, 595 (1975).”); see The Federalist No. 47 (James Madison) (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”); Commonwealth v. Sheppard, 387 Mass. 488 (1982) (Liacos, J., concurring, with whom Abrams, J., joins) (“One need only turn to history to recognize the dangers to society if the judiciary cannot, or will not, diligently and carefully protect the rights of individuals.”).
[139] Although the Massachusetts legislature sought permission from the SJC to assert its separate constitutional authority. See CITE
[140] Christopher McKnight, 406 Mass. 787, 792 (1990) (“A court, of course, may not properly exercise the functions of the executive branch of State government. See Guardianship of Anthony, 402 Mass. 723, 727 (1988).”).
[141] See Stonehill College v. Massachusetts Commission Against Discrimination, 441 Mass. 549 (2004) (“Adherence to the principle of stare decisis provides continuity and predictability in the law, but the principle is not absolute. No court is infallible, and this court is not barred from departing from previous pronouncements if the benefits of so doing outweigh the values underlying stare decisis. See Franklin v. Albert, 381 Mass. 611, 617 (1980); Lewis v. Lewis, 370 Mass. 619, 628-629 (1976).”); See also City Of Boerne v. Flores, Archbishop Of San Antonio, ___ U.S. ___ (1997) (O'Connor, J., dissenting) (“`[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience[; i.e., when the precedent] has not engendered the kind of reliance on its continued application that would militate against overruling it.”); Cf. Stonehill College v. Massachusetts Commission Against Discrimination, 441 Mass. 549 (2004) (Sosman, J., concurring) (In order to overrule a prior case, it is not enough that some or all of the Justices of this court have some intellectual or academic disagreement with the earlier analysis of the issue. There must be something more, above and beyond such a disagreement, that would justify some exception to the doctrine of stare decisis. “While perhaps it is more important as to far-reaching juridical principles that the court should be right, in the light of higher civilization, later and more careful examination of authorities, wider and more thorough discussion and more mature reflection upon the policy of the law, than merely in harmony with previous decisions . . . it nevertheless is vital that there be stability in the courts in adhering to decisions made after ample consideration. Parties should not be encouraged to seek re-examination of determined principles and speculate on a fluctuation of the law with every change in the expounders of it." (Citation omitted.) Mabardy v. McHugh, 202 Mass. 148, 152 (1909).”).
[142] Vasquez, petitioner, 428 Mass. 842 (1999) (“Perhaps if Oregon's requisition were egregiously devoid of even a colorable claim of legislative jurisdiction, the Governor should not have honored it and, if he had, we should not allow it to stand as a basis for depriving a person of his liberty. But that is far from being the case here.”). It is not that each and every time that the SJC arguably acts beyond its authority, the Governor is required to ignore their misguided decision. See e.g., Levy v. The Acting Governor, 436 Mass. 736 (2002) (CORDY, J. dissenting, with whom Marshall, C.J., and Sosman, J., join) (where arguably the SJC ignored case precedent regarding removal 'for cause' and reinstated two members of the Massachusetts Turnpike Authority.”); Parklane Hosiery Co.. v. Shore, 439 U.S. 322 (1979) (Rehnquist, J. dissenting) (“[T]he principle of separation of powers was not incorporated by the Framers into the Constitution in order to promote efficiency or dispatch in the business of government.”). There certainly are times when the governor’s disobedience would do more harm to our system of government than simple compliance. When, however, there exists, as there does here, explicit words of the Constitution that contradict the SJC’s declaration, a statute prohibiting what the SJC declared, and where the authority of the governor to act emanates solely through that statute, then the governor has only two choices. Act without statutory authority in violation of the current laws of Massachusetts (and therefore in violation of the governor’s duty to enforce the law), as he has done, – that is in acquiesce in the SJC’s unconstitutional declaration –or execute the laws of the Commonwealth by enforcing the statute and ignoring the SJC’s unauthorized declaration.”)’ Pennoyer v. Neff, 95 U.S. 714 (1877) (“[A] judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullity, . . . is not entitled to any respect in the State where rendered.”); See also A BRIEF HISTORY OF EXECUTIVE PRIVILEGE, FROM GEORGE WASHINGTON THROUGH DICK CHENEY, By MICHAEL C. DORF, Wednesday, Feb. 06, 2002, (“For example, in 1796, President Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.”).
[143] Barnstable v. Commonwealth, 410 Mass. 326 (1991) (“We stated that "implicit in the constitutional grant of judicial power is 'authority necessary to the exercise of ... [that] power'" (emphasis in O'Coin's). Id. at 510, quoting Opinion of the Justices, 279 Mass. 607, 609 (1932). We also observed that the use of inherent judicial power to obtain necessary facilities is not contrary to the doctrine of separation of powers because "[i]t was never intended that any one department, through the exercise of its acknowledged powers, should be able to prevent another department from fulfilling its responsibilities to the people under the Constitution." Id. at 511.”); Commonwealth v. Amirault, 415 Mass. 112 (1993) (“By allowing a motion to revise or revoke sentences when the parole board does not act in accordance with a judge's expectations, the judge is interfering with the executive function. The judge cannot nullify the discretionary actions of the [executive branch].”); Clark, petitioner, 34 Mass. App. Ct. 191 (1993) (“’Parole is a ‘wholly executive function.’’ Stewart v. Commonwealth, 413 Mass. 664, 669 (1992), quoting from Baxter v. Commonwealth, 359 Mass. 175, 179 (1971), and, therefore, such action would "effectively usurp the decision-making authority constitutionally allocated to the executive branch." . . . The agreement is illegal and, therefore, void.”); Shepard v. Atty. General, 409 Mass. 398 (1991) (“Judicial review of decisions which are within the executive discretion of the Attorney General "would constitute an intolerable interference by the judiciary in the executive department of the government and would be in violation of art. 30 of the Declaration of Rights." Ames v. Attorney Gen., supra at 253. . . . discretionary executive decisions made by the Attorney General are beyond judicial review.”); compare United States v. Nixon, 418 U.S. 683 (1974) (“Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government.”).
[144] Buckley v. Valeo, 424 U.S. 1 (1976) (“[T]he principle of separation of powers was not simply an abstract generalization in the minds of the Framers . . . “).
[145] See http://www.law.ou.edu/ushistory/gettysburg.shtml, The Gettysburg Address (“It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”).
[146] AIRPORTS AUTH. v. CITIZENS FOR NOISE ABATEMENT, 501 U.S. 252 (1991) (“[A]s James Madison recognized, . . . ‘It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.’”).
[147] Commonwealth v. Gonsalves, 432 Mass. 613, 619 (2000) (“An act of one branch of government does not violate art. 30 unless the act "unduly restrict[s]" a core function of a coordinate branch. See id. "The essence of what cannot be tolerated is the creation of interference by one department with the power of another department." New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 410 (1979).”); O'Coin's Inc. v. Treasurer of the County of Worcester, 362 Mass. 507 (1972)
[148] See Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (With a clearly ignorant understanding of the separation of powers, Judge Ireland explains that even though the SJC did not construe Chapter 207 to permit same-sex marriage, the SJC reformulated the meaning of that word, thus, changing the marriage statute. He says: “Rather than strike down the marriage laws, however, we redefined the common law and "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . . We did not reach the question whether the Massachusetts State Constitution contains a right to marry, nor did we find that G. L. c. 207 could be "construed to permit same-sex couples to marry. . . . Moreover, because Goodridge's discussion of marriage was based on ‘the undefined word 'marriage' as used in G. L. c. 207,’ id. at 319, it logically follows that Goodridge's redefinition of civil marriage applies to the entire marriage statute (G. L. c. 207).”).
[149] http://www.buddybuddy.com/mar-mass.html; In Defense of the Family, by Maggie Gallagher, June 25, 2004, http://www.nationalreview.com/comment/gallagher200406250924.asp (“Romney points out that small things have already begun to change, foretelling the bigger, sadder changes to come. First, the marriage licenses change so they no longer read husband and wife but ‘Party A’ and ‘Party B.’”); see also Birth certificate policy draws fire, Change affects same-sex couples, by Michael Levenson, Globe Correspondent, July 22, 2005 http://www.sbministries.org/blog/index.php?m=2005 (“Governor Mitt Romney's administration is advising hospitals to cross out the word father on birth certificates for the children of same-sex couples and instead write the phrase ''second parent," angering gay and lesbian advocates and city and town clerks who warn that the altered documents could be legally questionable. Eric Fehrnstrom, Romney's spokesman, said yesterday that the Department of Public Health, which the governor oversees, has been has been advising hospitals to alter the documents since last year, when the first children were born to same-sex married couples were born. Fehrnstrom insisted that the practice is legal. But city and town clerks, who register and store birth records, argue that the cross-outs on the birth certificates could make them open to challenges by passport agents, foreign governments, and other officials. They have repeatedly asked Romney to create a new birth certificate for the children of same-sex parents that would include gender-neutral nomenclature. But Romney has resisted, arguing that the Legislature must first pass a law authorizing such a change. . . . In February, Romney, on a political trip to South Carolina, told a Republican group that he was dismayed by the clerks' effort to have birth certificates revised for the children of gay couples. ''Some [same-sex couples] are actually having children born to them," Romney said. ''It's not right on paper; it's not right in fact," he said. ''Every child has a right to a mother and a father." Gay couples and their children protested the remarks outside the governor's office, accusing Romney of exploiting them for political gain. Yesterday, Fehrnstrom said the governor believes that hand-altered birth certificates are valid. ''As long as they're recorded, they're valid," Fehrnstrom said. He argued that the Supreme Judicial Court ruling that legalized same-sex marriage put the onus on the Legislature to change the birth certificates. Fehrnstrom cited a passage in the SJC decision that postponed the start of gay marriages for 180 days from when the ruling was issued in November 2003 ''to permit the Legislature to take such action as it may deem appropriate in light of this opinion." Nevertheless, the administration did not wait for the Legislature to act when it rewrote marriage certificates for gay couples to say ''Party A" and ''Party B," gay rights advocates said. . . . Fehrnstrom argued that the administration's decision to rewrite marriage certificates and not birth certificates was consistent with the court ruling on same-sex marriage, known as Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003). ''The Goodridge decision addressed the issue of marriage, and the case with the marriage certificates goes to the heart of the court's ruling," he said. ''With respect to any ancillary issues, we are proceeding cautiously in the absence of legislative guidance.").
[150] See http://www.beliefnet.com/story/145/story_14580_1.html, For Some Justices of Peace, Conflict in Carrying Out Gay Weddings, By William Bole, Religion News Service, May 11, 2003 (“Despite his personal opposition to gay marriage, Republican Gov. Mitt Romney has given an ultimatum to justices of the peace, who number more than 1,200 in Massachusetts. He says they will have to perform gay marriages or turn in their appointments, by order of the state's Supreme Judicial Court.”).
[151] "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." -- Thomas Jefferson.
[152] One Man, One Woman; A citizen's guide to protecting marriage, The Wall Street Journal, Thursday, February 5, 2004 12:01 a.m. EST (http://us.f351.mail.yahoo.com/ym/ShowLetter?MsgId=8762_4725788_33451_1558_103735_0_370_200864_3227027655&Idx=0&YY=45812&inc=25&order=down&sort=date&pos=0&view=a&head=b&box=Inbox)
[153] Governor Romney has violated his duty to enforce the laws of the Commonwealth by failing to uphold the statutory law, Chapter 207, that has prohibited and continues to prohibit same-sex “marriages.” The Governor cannot, under a Constitution that creates his office and, therefore, his authority and which explicitly employs the word “marriage” in its text, authorize the certification of and solemnization of relationships that flout that very word. Nor can he, where the statute clearly prohibits the conduct and has yet to be repealed, enforce the opposite of what it prescribes under his duties as Chief Executive. In fact, the act of solemnizing a marriage without authority under the laws of the Commonwealth is a criminal act. See Chapter 207: Section 48. Solemnization of marriage without authority (“Whoever, not being duly authorized by the laws of the commonwealth, undertakes to join persons in marriage therein shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year, or both.”).
[154] See Russell v. Secretary of Commonwealth, 304 Mass. 181, 187 (1939) (“A suggestion of the death of the petitioner on September 22, 1939, has been filed in each case by his administratrix. She has also filed motions that she be substituted as party petitioner in each case. Those motions are allowed. She, however, has no greater rights than her intestate had, and the motions to dismiss filed by the respondents are allowed, and in each case the petition is dismissed.); Lawson v. Rowley, 185 Mass. 171, 172-173 (1904) (statute expressly gave to justices of peace the power to punish contempt by a fine, but without an express grant to punish in any other way, that power is limited to punishment by fine); compare Cleaveland v. Malden Savings Bank, 291 Mass. 295 (1934) (“The plaintiff did not ratify and confirm the deed to her son, but on the contrary, on recovering her sanity, successfully proceeded in equity against him to set aside the deed on the ground that it was a void instrument because of her mental incapacity at the time it was executed. . . . [T]he deed was void from its inception. If the mental incompetency of the plaintiff is established in a proceeding by which the defendant is bound, the defendant as an innocent purchaser for value from the son to the extent of its mortgage stands no better than the son and acquired no title to the land. Brewster v. Weston, 235 Mass. 14, 17. Since the deed of the plaintiff to the son has been declared void, she has been in truth the owner of the land at all times here material.”) Keville v. Mckeever, 42 Mass. App. Ct. 140 (1997) (“The judge found that the Harvard Avenue deed was forged and, accordingly, the Porsche Realty Trust mortgage was void. ... If the mental incompetency of the plaintiff is established in a proceeding by which the defendant is bound, the defendant as an innocent purchaser for value from the son to the extent of its mortgage stands no better than the son and acquired no title to the land. Since the deed of the plaintiff to the son has been declared void, she has been in truth the owner of the land at all times here material." (Citations omitted.).”); Commonwealth v. Johnson Wholesale Perfume Co. Inc., 304 Mass. 452 (1939) (“When a subject has been fully regulated by statute an administrative board cannot further regulate it by the adoption of a regulation which is repugnant to the statute.”); Mass. Federation of Teachers v. Bd. of Education, 436 Mass. 763 (2002) ("[A] regulation that is irreconcilable with an agency's enabling legislation cannot stand." quoting Quincy v. Massachusetts Water Resources Auth., 421 Mass. 463, 468 (1995).” . . . The agency may not exceed those powers and obligations expressly conferred on it by statute or reasonably necessary to carry out the purposes for which the statute was enacted).
[155] Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951) (“Massachusetts since 1780 has been governed by a written Constitution, wherein the various organs of government are enumerated and their powers defined. The people themselves and all branches of their government, legislative, executive, and judicial alike, are bound by it and owe to it implicit obedience. By that Constitution, until the adoption by the people in 1918 of art. 48 of the Amendments, all power to enact laws was vested in the Legislature. By that amendment provision was made whereby in a carefully prescribed manner and with certain precisely defined safeguards designed to make certain that there should exist a wide popular demand, to prevent hasty action, to promote wide publicity, and to acquaint the voters with the proposed laws and with the arguments for and against them, laws could be enacted by direct popular vote, except in relation to certain "excluded matters." Since the people have themselves adopted the Constitution with its amendments for their government, they are bound by the provisions and conditions which they themselves have placed in it, and when they seek to enact laws by direct popular vote they must do so in strict compliance with those provisions and conditions. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 247--248. Failure to comply will mean that no valid law has been enacted, no matter how great the popular majority may have been in its favor. Only by preserving this fundamental principle can constitutional government be preserved and orderly progress assured. The question whether or not the requirements of the Constitution have been observed and a valid law has been enacted is a justiciable question to be determined in the last analysis by the judicial department of the government whenever the question arises in a proper proceeding in court. And since the judges are bound by the Constitution and must see that its provisions and conditions are at all times faithfully observed, they must determine that question with sole reference to the facts of the case and the language of the Constitution and without the slightest regard to their own personal views as to the desirability or otherwise of the law involved.
It is proper to observe at this point that we cannot agree with the argument of the respondents that because the new c. 118A has actually been voted upon and certified by the Secretary of the Commonwealth it is conclusively presumed to be valid whether or not the requirements of the Constitution have been followed. This is a misapplication of the principle that the enrollment of a statute is conclusively presumed to embody the action taken by the Legislature upon it. Field v. Clark, 143 U. S. 649. That principle rests both upon the respect due to the legislative branch of the government and upon the confusion which would result if the courts were obliged to inquire as to all statutes into the legislative proceedings prior to enrollment. The first reason has no application whatever to initiative laws and the second reason has little, if any, force in relation to such laws. It would be astonishing and intolerable if the safeguards so carefully inserted in art. 48 could be disregarded without consequences by individual State officers and so in effect turned into mere admonitions and recommendations. The Constitution is not ordinarily treated in that manner. See Cooley, Constitutional Limitations (8th ed.) 159--164. The case of Field v. Clark was explained in Wilkes County v. Coler, 180 U. S. 506, 521--524. In the latter case it was held that failure to observe a requirement of the Constitution of a State that a vote by yeas and nays be entered on the journal of the Assembly rendered a law invalid. See Kay Jewelry Co. v. Board of Registration in Optometry, 305 Mass. 581, 584; Prescott v. Secretary of the Commonwealth, 299 Mass. 191, 196; Scullin v. Cities Service Oil Co. 304 Mass. 75, 83--84; Opinion of the Justices, 99 Mass. 636, 637; Opinion of the Justices, 135 Mass. 594, 600. The great variety of view that exists, even where the question relates to the passage of an act of the Legislature, is indicated by the cases collected in 40 L. R. A. (N. S.) 1.”).
[156] Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951)
[157] If a “marriage” between a man and his mother is void because it is not permitted by c. 207, and if a “marriage” between a man and an underage female is void because it is not permitted by c. 207, and if a “marriage” between a male and a female (one of whom has communicable syphilis) is void because it is not permitted by c. 207, and if a “marriage” where the person presiding over it is not a person with authority to solemnize a marriage is void because it is not permitted by c. 207, and a marriage between three people is not permitted by c. 207 (even if not explicitly addressed in the words of the statute), then a same-sex marriage would be void ab initio under the statute as well, since as the SJC pointed out, the framers of the statute never intended it to permit same-sex “marriage.” See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003). Compare Heistand v. Heistand, 384 Mass. 20 (1981) (“The ceremonial exchange of vows between the plaintiff and David Lowry was a legal nullity in this Commonwealth, as the judge below acknowledged. Massachusetts does not recognize common-law marriage.”); see also Callow v. Thomas, 322 Mass. 550 (1947) (“We are of opinion that the exception recognized in these cases is sound and that the present case falls within it. At the time of the accident the parties were husband and wife for all intents and purposes. Had no proceedings been brought to annul the marriage, this status would have endured until the marriage was terminated by death or divorce. In other words, the marriage here was voidable and not void and was valid until it was set aside by the decree of nullity. It is to be observed that this is not a case of a marriage prohibited by law such as a bigamous marriage or one prohibited by reason of consanguinity or affinity between the parties. Such a marriage is no marriage at all and is "void without a decree of divorce or other legal process." While it doubtless is true that a decree of nullity ordinarily has the effect of making a marriage, even one which is voidable, void ab initio, this is a legal fiction which ought not to be pressed too far. To say that for all purposes the marriage never existed is unrealistic. Logic must yield to realities. Public policy requires that there must be some limits to the retroactive effects of a decree of annulment.”).
[158] See Commonwealth v. Miranda, 441 Mass. 783 (2004) (“The Appeals Court concluded that the amended indictment was a "legal impossibility" and vacated the defendant's conviction as a repeat offender. Commonwealth v. Miranda, 59 Mass. App. Ct. 378, 381, 388 (2003).”); Commonwealth v. Miranda (2003) (“Before commencing trial on indictment no. 1281, the judge purported to amend the indictment on which there had just been a verdict, no. 1280, by engrafting the repeat-offender portion of no. 1281 onto 1280 as a second count. But this amendment was a legal impossibility. . . . The postverdict amendment of indictment no. 1280, engrafting the repeat-offender portion of indictment no. 1281 as a second count, was therefore fundamentally defective, and the subsequent trial based on that amendment was a legal nullity. See Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 456, S.C., 430 Mass. 517 (1999), cert. denied sub. nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000) ("if the [repeat-offender] indictment is legally deficient, the court is without jurisdiction to try the case"). . . . the defendant was convicted of an offense for which he was not indicted by a grand jury,”); Commonwealth v. Fenton, 395 Mass. 92 (1985) (“[O]ur decision in Commonwealth v. Rhodes, 389 Mass. 641, 644 (1983), mandated that, as an adult,(fn2) [the defendant’s] conviction for carrying a carbon dioxide (CO2) powered revolver was a legal impossibility because an air gun is exempted from the operation and penalties of G. L. c. 269, § 10 (a) (4).(fn3) A Superior Court judge denied the defendant's motion [to the same effect]. The defendant appealed and the Appeals Court reversed the conviction holding that "Rhodes excludes all types of air guns from the operation of G. L. c. 269, § 10 (a), and ... the gun in question comes within a common lexical definition of the term 'air gun' or 'air rifle.'" Commonwealth v. Fenton, 18 Mass. App. Ct. 537, 538 (1984). . . . Possession of "any type of air gun," by either an adult or a minor is regulated exclusively by G. L. c. 269, § 12B. We therefore conclude that, because § 12B imposes no penalties for possession of an air gun by an adult, the defendant's conviction under G. L. c. 269, § 10 (a), is erroneous.”); Partnership Equities Inc. v. Marten, 15 Mass. App. Ct. 42 (1982) (“[U]nder the subscription contract, the defendants enjoyed the status of limited partner upon making their first payments and, according to financial information appearing in the record, would have enjoyed substantial benefits by way of passed through losses. Compare Goodisson v. North American Sec. Co., 40 Ohio App. at 89, 93--94, where the subscriber was not yet a stockholder of record and delivery of the shares subscribed to had become a legal impossibility.”); Commonwealth v. Carson, 349 Mass. 430, 435 (1965) (“If the jury found the defendant embezzled some or all of the shares (including the trust certificates representing the class A stock), as they must have found, we think a finding of guilty on the "proceeds" indictment, since it may have related to some or all of the shares within the "stock" indictment, is inconsistent and results in two convictions for a single crime. It is well settled that "a prosecution for embezzlement may follow money embezzled through a dozen reinvestments, so long as it is in the embezzler's hands." . . . In the leading case of Commonwealth v. Haskins, 128 Mass. 60, the . . . court held that the attempt of the Commonwealth to enter a nolle prosequi on one of the counts after the convictions was of no avail and that "although, as a legal effect of a conviction upon each count it cannot be said strictly that it is an acquittal upon the other, yet the finding of guilty upon both is inconsistent in law, and is conclusive of a mistrial." Id. at 61. . . . We conclude, therefore, that the judgments on the indictments for larceny of stock and larceny of money proceeds from the sale of stock must be reversed.); Quinlan v. Mealey, 270 Mass. 284, 286 (1930) (“When the contract was made the conservator had no legal authority to use or dispose of the property of his ward in any manner other than he was authorized to do by the Probate Court. Performance of the agreement at the death of the husband, while then possible in fact, was impossible within limits legally possible when the agreement was made and ever after. The legal impossibility was apparent on the face of the attempted contract. The contract was void, and the plaintiff was not entitled to damages for the defendant's refusal to perform it.”).
[159] See footnote 2
“Massachusetts since 1780 has been governed by a written Constitution, wherein the various organs of government are enumerated and their powers defined. The people themselves and all branches of their government, legislative, executive, and judicial alike, are bound by it and owe to it implicit obedience. . . . Since the people have themselves adopted the Constitution with its amendments for their government, they are bound by the provisions and conditions which they themselves have placed in it[. For instance,] when they seek to enact laws by direct popular vote they must do so in strict compliance with those provisions and conditions.” Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951). Likewise, when the SJC and the Governor act, they must (not unlike the people) “do so in strict compliance” with the words of the Constitution.[128]
“[I]t is always to be presumed that a coordinate branch of the government has acted within the limits of its constitutional authority, until the contrary shall clearly and satisfactorily appear.” [129] When any one of the branches of government acts outside its Constitutional authority, those unlawful actions are null and void.[130] For example, the legislature cannot supplant the judicial function.[131] Similarly, the executive cannot perform a legislative function.[132] The same applies to unconstitutional acts of the Judiciary[133] as well. Exceeding the scope of legal authority granted to or overreaching the jurisdiction bestowed upon a court, is a nullity.[134] It is quite clear that the act of granting a license must be annulled when the law does not permit its issuance.[135]
Simply because the SJC ignored the explicit words of the Constitution in no way required Governor Romney to do the same.[136] Article 30 creates a separation of powers among the branches of government[137] and our democracy depends on this separation.[138] No branch of government is required to seek from another branch permission to assert its Constitutional duties.[139] To the contrary, when one branch of government attempts to perform an unconstitutional function that it has no right to perform, as the SJC has done in Goodridge, it is the duty of the other branches to check that power and prevent its misuse and usurpation.[140] Even the doctrine of stare decisis does not require the Court to be bound by its own prior illogical decisions.[141]
For separation of powers to mean anything then, it is fully within the discretion and authority of the Governor to not honor (i.e., ignore) the void and unconstitutional actions of the other branches of government – in the very same way that the SJC ignores the legislature’s unconstitutional actions as well as the illegal actions of the executive branch.[142] The SJC cannot, through the use of an unauthorized/unconstitutional declaration, prevent the Governor from performing his responsibilities to the people to execute the laws of the Commonwealth.[143]
Each branch is separate, and each is equal. Separation of powers is not some meaningless, abstract, wishful thought free of any practical application.[144] Rather when observed, it ensures that we remain a government “of the people, by the people, for the people.”[145] Each branch may and sometimes must act independently.[146] Otherwise the doctrine of separation of powers is a meaningless concept.[147]
This is self-evident, but the Court’s majority was confident that neither the Legislature, nor the press, nor the civic culture of the Commonwealth would have the will or desire to call their bluff. Nor, as it turned out, would the governor, who was bound by his oath to the Constitution to reject the Goodridge ruling as meaningless, at the very least until the Legislature rescinded the existing marriage law in order to please the court. But only a very small minority of legislators were willing to even consider voting to establish homosexual marriage. Thus when Governor Romney ordered state officials to begin issuing marriage licenses to homosexual couples, he was going far beyond what the Court, the Legislature, and the people expected him to do. More than that, he was violating the Constitution he had sworn to defend. Not even the Marshall court majority implied in even the faintest way that it fell upon the governor as chief executive to ignore the still binding law of the Commonwealth and issue orders that violated that law and violated the Constitution’s Separation of Powers. To the constitutionally ignorant (which now includes Justice Roderick Ireland of the Massachusetts Supreme Judicial Court),[148] the governor’s actions had and have today the appearance of being forced by the Goodridge ruling. Governor Romney’s public statements have repeatedly cloaked his unconstitutional actions as a mere carrying out of the law. In fact, it is not possible to even argue such, since Massachusetts law to this day defines marriage just as it has for well over two centuries.
Governor Romney acquiesced in the SJC decision and actively authorized same-sex “marriage.” Resembling what the Emperor saw in the mirror, Romney’s reliance on the SJC’s decision to justify his subsequent actions, therefore, was based on nothing.
Although he does not like to take credit for it, on April 26, 2003, Governor Romney, without being authorized by the legislature ordered the terms on the official marriage certificate changed[149] and in May he ordered the town clerks, even ones with religious conscience concerns, to solemnize the marriages.[150] In so doing, Governor Romney failed “to act in strict compliance with the words of the Constitution” and failed to execute the laws of the Commonwealth. He also placed the public officials in criminal jeopardy, but for the fact that he will not enforce the marriage statute, which prohibits the certification of and solemnization of marriages that violate the marriage statute.
The truth is, Governor Romney knew the SJC had violated the Constitution.[151] In a Wall Street Journal editorial he said:
With the Dred Scott case, decided four years before he took office, President Lincoln faced a judicial decision that he believed was terribly wrong and badly misinterpreted the U.S. Constitution. Here is what Lincoln said: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal." By its decision, the Supreme Judicial Court of Massachusetts circumvented the Legislature and the executive, and assumed to itself the power of legislating. That's wrong.[152]
Romney, therefore, also knew he had no duty, nor any legal power, to change the documents or issue marriage certificates. Indeed, his duty was to uphold the laws of the Commonwealth and, therefore, to do the exact opposite of what he did.[153]
So then, what is the legal status of the licenses that have allegedly been certified and the “marriages” that have purportedly been solemnized without legal authority? The answer lies in the venerable legal principle that one can only receive the title (power, authority, ownership) that one has been given; that is, a person can stand in no greater position, nor obtain greater ownership than that which was transferred.[154] Nemo dat qui non habet (“You cannot give what you do not have”). Thus, no matter how many licenses the town clerks churn out, neither the statute, nor the Constitution permit same-sex “marriage.” Governor Romney’s lack of power and his failure to execute the laws of Massachusetts means that “no valid [marriage certificate] has been issued.[155] . . . Only by preserving this fundamental principle can constitutional government be preserved and orderly progress assured.”[156] “It would be astonishing and intolerable if the [words] so carefully inserted in the [Constitution] could be disregarded by [the Supreme Judicial Court and the Governor] without consequence and so in effect turned into mere admonitions and recommendations. The Constitution is not ordinarily treated in that manner.” Sears v. Treasurer and Reciever General, 327 Mass. 310, 321-22 (1951).
The power the Governor lacked (both because the SJC had no authority to authorize any “marriage” that contradicts the word embedded in the Constitution and because the statute continues to prohibit same-sex “marriage” since it has not been changed, nor repealed), makes the “marriage” certificates, that have been and are being handed out by town clerks to same-sex couples, void. They were void from their inception because there was and there continues to be no legal authority to issue them.[157] Couples holding those same-sex “marriage” licenses hold nothing because issuing “marriage” certificates (pursuant to Chapter 207) to same-sex couples is a legal impossibility.[158] There was no authority to issue the certificates nor to solemnize the relationships and, therefore, they are void.[159]
ENDNOTE
[128] Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951); See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 247--248.
[129] Moore v. Election Comm'rs of Cambridge, 309 Mass. 303 (1941), quoting Chief Justice Shaw, in Commonwealth v. Blackington, 24 Pick. 352, 355—356.).
[130] See Pennoyer v. Neff, 95 U.S. 714 (1877) ('Any exertion of authority of this sort beyond this limit,' says Story, 'is a mere nullity, and incapable of binding.”); Luscomb v. Bowker, 334 Mass. 468 (1956) ("The house of representatives is not the final judge of its own powers and privileges in cases in which the rights and liberties of the subject are concerned; but the legality of its action may be examined and determined by this court. . . . living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity with the Constitution; and if they have not been, to treat their acts as null and void."). See also Vasquez, petitioner, 428 Mass. 842 (1999) (citing World-Wide Volkswagen Corp., supra at 291 ("A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere"). . . . The petitioner's claim is more properly viewed as an argument that Oregon has no legislative jurisdiction to criminalize acts that occur outside the boundaries of the State.”); Commonwealth v. Vascovitch Jr., 40 Mass. App. Ct. 62 (“Article 30 creates a separation of powers among the branches of government giving the prosecutor broad discretion in determining whether to prosecute a case. Shepard v. Attorney Gen., 409 Mass. 398, 401 (1991). . . . the record reflects that the Commonwealth objected and that there was no independent legal basis for the dismissal, and, therefore, the dismissal cannot stand. The judge's dismissal also unconstitutionally usurped the Legislature's power to prescribe punishment for criminal conduct.”); See e.g., Bottomly v. Kabachnick, 13 Mass. App. Ct. 480 (1982) (“The manner in which the notice of the proposed sale shall be given is one of the important terms of the power and a strict compliance with it is essential to the valid exercise of the power." McGreevey v. Charlestown Five Cents Sav. Bank, 294 Mass. 480, 483--484 (1936). Tamburello v. Monahan, 321 Mass. 445, 447 (1947). According to this line of cases, the first foreclosure sale now in issue must be viewed as a nullity; it is as if no such sale had been made. See Montague v. Dawes, 96 Mass. 369, 374 (1867); Moore v. Dick, 187 Mass. at 212. Cf. Bernhardt v. Atlantic Fin. Corp., 311 Mass. 183, 191 (1942). Because the first foreclosure sale was void as matter of law, the defendant cannot be found liable to the plaintiffs for breach of contract. See Levenson v. Cambridge Sav. Bank, 258 Mass. 468, 469 (1927).”); Casieri's Case, 286 Mass. 50 (1934) (“The final decree ... was a judgment of a court. The Legislature cannot exercise judicial powers. That is prohibited by the clear words of art. 30 of the Declaration of Rights of our Constitution. Any legislative attempt to that end would be a nullity.”).
[131] Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 321 (1951) ("The question whether or not the requirements of the Constitution have been observed and a valid law has been enacted is a justiciable question to be determined in the last analysis by the judicial department of the government . . .it would be clear that the Legislature attempted to define the bounds of the constitutional right to trial by jury. Article 30 prohibits the Legislature from performing this judicial function. It is the exclusive function of the judiciary to determine this. Under art. 30, the Legislature may not supplant our decision.”); Commonwealth v. Sheehy, 412 Mass. 235 (1992) (“It is the judiciary's role to be the final arbiter of the essence of the rights guaranteed by our State Constitution. See, e.g., Opinions of the Justices, 387 Mass. 1201, 1206 (1982) (provision in school prayer bill stating that bill does not establish religion invades judicial province)”).
[132] See Mass. Bay Transportation Authority Advisory Bd. v. Mass. Bay Transportation Authority, 382 Mass. 569 (1981) (“The Governor could not by executive order, in the absence of legislative authority, suspend the operation of G. L. c. 161A, § 5 (i).”).
[133] See Mass. Bay Transportation Authority Advisory Bd. v. Mass. Bay Transportation Authority, 382 Mass. 569 (1981) (“The Governor could not by executive order, in the absence of legislative authority, suspend the operation of G. L. c. 161A, § 5 (i). . . . Nor could we.”) (emphasis added). See also Comm'r of Public Health v. The Bessie M. Burke Memorial Hospital, 366 Mass. 734 (1975) (“When one takes into account the historical basis of art. 20 in the attempts of the Crown to suspend the laws or operation of the laws without consent of Parliament,(fn13) one must agree with the occasional remarks in the decided cases that the core meaning of art. 20 is that only the Legislature, not the Executive or Judicial branches, may suspend an existing law.); Hancock v. Commissioner of Education, 443 Mass. 428 (2005).
[134] See e.g., Guardianship of Anthony, 402 Mass. 723, 727 (1988) (“[I]n appropriate circumstances, a court may direct a public official to carry out a statutory duty, and, when there is only one way in which that can be accomplished, to order the official to proceed in that one way. But . . . , the circumstances of this case are not appropriate for such an order. No statute requires the department or its agents to conduct medical tests for AIDS. Moreover, there are no findings, and there is nothing in the record which would support findings, that permit the conclusion that testing for AIDS is an appropriate, let alone the only, means by which the department may fulfill any of its statutory duties. Thus, the judge's order constitutes an impermissible "poaching by the judicial branch on executive and legislative territories. . . . However, the order subject to this review was not the product of the judge's focus "with an eye single to the welfare of the ward." Rather, the genesis of the order appears to be the judge's perception that the order was appropriate to meet a threat to the health of the Templeton Colony. Thus, the order was not within the court's jurisdiction based on guardianship. . . . the judge's order constitutes an impermissible "poaching by the judicial branch on executive and legislative territories," Attorney Gen. v. Sheriff of Suffolk County, supra at 631. The order is vacated, and the case is remanded to the Probate and Family Court for such further guardianship proceedings as may be appropriate.”); see also Commonwealth v. Cheney, 440 Mass. 568 (2003) (“Thus, when a judge, "[w]ithout any legal basis . . . preempt[s] the Commonwealth's presentation of its case [t]hat action effectively usurp[s] the decision-making authority constitutionally allocated to the executive branch." . . . Burlington v. District Attorney for the N. Dist., 381 Mass. 717, 721 (1980) ("virtual exclusion of judicial intervention to check or correct the district attorney in the [decision to nol pros] . . . follows from Part I, art. 30 of the Massachusetts Constitution declaring a separation of powers"); Commonwealth v. Hart, 149 Mass. 7, 8 (1889) ("Only an attorney authorized by the Commonwealth to represent it has authority to declare that he will not further prosecute a case in behalf of the Commonwealth. A court is not a prosecuting officer, and does not act as the attorney for the Commonwealth. Its office is judicial, -- to hear and determine between the Commonwealth and the defendant").”); Matter of McKnight, 406 Mass. 787, 792 (1990) ("The guardianship, however, did not invest the Probate Court with the authority to order the department to do anything that the department was not willing to do or required to do as a matter of law. A court, of course, may not properly exercise the functions of the executive branch of State government.”); Commonwealth v. Gordon, 410 Mass. 498, 500 (1991) (a court has no power to dismiss an indictment or complaint).
[135] See Werner v. Bd. of Appeals of Harwich, 2 Mass. App. Ct. 647, 650 (1974) (“The decision of the board granting the special permit must be annulled because the Harwich zoning by-law does not allow the issuance of a special permit for the construction of nonconforming buildings additional to, and separate from, existing nonconforming buildings.”); see also Goodwin v. Bd. of Selectmen of Hopkinton, 358 Mass. 164, 169 (1970) (“Formerly the zoning enabling statute was the only source of municipal authority to regulate the removal of material from the land. Such regulation could not be accomplished by an ordinance or by-law other than a zoning ordinance or by-law.”); Planning Bd. of Easton v. Koenig, 12 Mass. App. Ct. 1009, 1010 (1981) (“We conclude only that the zoning board of appeals was without jurisdiction to grant a building permit to the Koenigs and that its decision to do so is void.”); Quinlan v. Mealey, 270 Mass. 284, 286 (1930) (“When the contract was made the conservator had no legal authority to use or dispose of the property of his ward in any manner other than he was authorized to do by the Probate Court. Performance of the agreement at the death of the husband, while then possible in fact, was impossible within limits legally possible when the agreement was made and ever after. The legal impossibility was apparent on the face of the attempted contract. The contract was void, and the plaintiff was not entitled to damages for the defendant's refusal to perform it.”); Mealey v. Fegan, 274 Mass. 599] (“This court held that such a contract was void as "the conservator had no legal authority to use or dispose of the property of his ward in any manner other than he was authorized to do by the Probate Court," and sustained a directed verdict for the defendant. Quinlan v. Mealey, 270 Mass. 284, 286.”).
[136] See O'Coin's Inc. v. Treasurer of the County of Worcester, 362 Mass. 507 (1972) (“It was certainly never intended that any one department, through the exercise of its acknowledged powers, should be able to prevent another department from fulfilling its responsibilities to the people under the Constitution.”); Alliance, AFSCME/SEIU, AFL-CIO v. Secretary of Administration, 413 Mass. 377 (1992) (the Court cannot compel the Governor to act).
[137] Part I, c.1, Article XXX (“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: 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.”); See Commonwealth v. Pellegrini, 414 Mass. 402 (1993) (Under our system of government, Courts are to give deference to legislative judgments. Shell Oil Co. v. Revere, 383 Mass. 682 (1981). This “reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the ‘undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature.’ Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977).” Shell Oil Co. v. Revere, 383 Mass. 682 (1981). Thus, it is not the court's function to launch an inquiry to resolve a debate which has already been settled in the legislative forum. "[I]t [is] the judge's duty ... to give effect to the will of the people as expressed in the statute by their representative body. It is in this way ... that the doctrine of separation of powers is given meaning." Commonwealth v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring). Shell Oil Co. v. Revere, 383 Mass. 682 (1981).
[138] McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 607 (1993) (John Adams “offered that "there is no good government but what is republican." Thoughts on Government, in 4 Works of John Adams 194 (C.F. Adams ed. 1851). He described the requirements of a Constitution for a republican government. He prescribed a tripartite system of government in which the executive, legislative, and judicial branches are independent of one another . . .”); See also Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Cordy, J. dissenting) (“The "time tested wisdom of the separation of powers" requires courts to avoid "judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539, 540 (1996), cert. denied, 520 U.S. 1131 (1997), quoting Commonwealth v. A Juvenile, 368 Mass. 580, 595 (1975).”); see The Federalist No. 47 (James Madison) (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”); Commonwealth v. Sheppard, 387 Mass. 488 (1982) (Liacos, J., concurring, with whom Abrams, J., joins) (“One need only turn to history to recognize the dangers to society if the judiciary cannot, or will not, diligently and carefully protect the rights of individuals.”).
[139] Although the Massachusetts legislature sought permission from the SJC to assert its separate constitutional authority. See CITE
[140] Christopher McKnight, 406 Mass. 787, 792 (1990) (“A court, of course, may not properly exercise the functions of the executive branch of State government. See Guardianship of Anthony, 402 Mass. 723, 727 (1988).”).
[141] See Stonehill College v. Massachusetts Commission Against Discrimination, 441 Mass. 549 (2004) (“Adherence to the principle of stare decisis provides continuity and predictability in the law, but the principle is not absolute. No court is infallible, and this court is not barred from departing from previous pronouncements if the benefits of so doing outweigh the values underlying stare decisis. See Franklin v. Albert, 381 Mass. 611, 617 (1980); Lewis v. Lewis, 370 Mass. 619, 628-629 (1976).”); See also City Of Boerne v. Flores, Archbishop Of San Antonio, ___ U.S. ___ (1997) (O'Connor, J., dissenting) (“`[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience[; i.e., when the precedent] has not engendered the kind of reliance on its continued application that would militate against overruling it.”); Cf. Stonehill College v. Massachusetts Commission Against Discrimination, 441 Mass. 549 (2004) (Sosman, J., concurring) (In order to overrule a prior case, it is not enough that some or all of the Justices of this court have some intellectual or academic disagreement with the earlier analysis of the issue. There must be something more, above and beyond such a disagreement, that would justify some exception to the doctrine of stare decisis. “While perhaps it is more important as to far-reaching juridical principles that the court should be right, in the light of higher civilization, later and more careful examination of authorities, wider and more thorough discussion and more mature reflection upon the policy of the law, than merely in harmony with previous decisions . . . it nevertheless is vital that there be stability in the courts in adhering to decisions made after ample consideration. Parties should not be encouraged to seek re-examination of determined principles and speculate on a fluctuation of the law with every change in the expounders of it." (Citation omitted.) Mabardy v. McHugh, 202 Mass. 148, 152 (1909).”).
[142] Vasquez, petitioner, 428 Mass. 842 (1999) (“Perhaps if Oregon's requisition were egregiously devoid of even a colorable claim of legislative jurisdiction, the Governor should not have honored it and, if he had, we should not allow it to stand as a basis for depriving a person of his liberty. But that is far from being the case here.”). It is not that each and every time that the SJC arguably acts beyond its authority, the Governor is required to ignore their misguided decision. See e.g., Levy v. The Acting Governor, 436 Mass. 736 (2002) (CORDY, J. dissenting, with whom Marshall, C.J., and Sosman, J., join) (where arguably the SJC ignored case precedent regarding removal 'for cause' and reinstated two members of the Massachusetts Turnpike Authority.”); Parklane Hosiery Co.. v. Shore, 439 U.S. 322 (1979) (Rehnquist, J. dissenting) (“[T]he principle of separation of powers was not incorporated by the Framers into the Constitution in order to promote efficiency or dispatch in the business of government.”). There certainly are times when the governor’s disobedience would do more harm to our system of government than simple compliance. When, however, there exists, as there does here, explicit words of the Constitution that contradict the SJC’s declaration, a statute prohibiting what the SJC declared, and where the authority of the governor to act emanates solely through that statute, then the governor has only two choices. Act without statutory authority in violation of the current laws of Massachusetts (and therefore in violation of the governor’s duty to enforce the law), as he has done, – that is in acquiesce in the SJC’s unconstitutional declaration –or execute the laws of the Commonwealth by enforcing the statute and ignoring the SJC’s unauthorized declaration.”)’ Pennoyer v. Neff, 95 U.S. 714 (1877) (“[A] judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullity, . . . is not entitled to any respect in the State where rendered.”); See also A BRIEF HISTORY OF EXECUTIVE PRIVILEGE, FROM GEORGE WASHINGTON THROUGH DICK CHENEY, By MICHAEL C. DORF, Wednesday, Feb. 06, 2002, (“For example, in 1796, President Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.”).
[143] Barnstable v. Commonwealth, 410 Mass. 326 (1991) (“We stated that "implicit in the constitutional grant of judicial power is 'authority necessary to the exercise of ... [that] power'" (emphasis in O'Coin's). Id. at 510, quoting Opinion of the Justices, 279 Mass. 607, 609 (1932). We also observed that the use of inherent judicial power to obtain necessary facilities is not contrary to the doctrine of separation of powers because "[i]t was never intended that any one department, through the exercise of its acknowledged powers, should be able to prevent another department from fulfilling its responsibilities to the people under the Constitution." Id. at 511.”); Commonwealth v. Amirault, 415 Mass. 112 (1993) (“By allowing a motion to revise or revoke sentences when the parole board does not act in accordance with a judge's expectations, the judge is interfering with the executive function. The judge cannot nullify the discretionary actions of the [executive branch].”); Clark, petitioner, 34 Mass. App. Ct. 191 (1993) (“’Parole is a ‘wholly executive function.’’ Stewart v. Commonwealth, 413 Mass. 664, 669 (1992), quoting from Baxter v. Commonwealth, 359 Mass. 175, 179 (1971), and, therefore, such action would "effectively usurp the decision-making authority constitutionally allocated to the executive branch." . . . The agreement is illegal and, therefore, void.”); Shepard v. Atty. General, 409 Mass. 398 (1991) (“Judicial review of decisions which are within the executive discretion of the Attorney General "would constitute an intolerable interference by the judiciary in the executive department of the government and would be in violation of art. 30 of the Declaration of Rights." Ames v. Attorney Gen., supra at 253. . . . discretionary executive decisions made by the Attorney General are beyond judicial review.”); compare United States v. Nixon, 418 U.S. 683 (1974) (“Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government.”).
[144] Buckley v. Valeo, 424 U.S. 1 (1976) (“[T]he principle of separation of powers was not simply an abstract generalization in the minds of the Framers . . . “).
[145] See http://www.law.ou.edu/ushistory/gettysburg.shtml, The Gettysburg Address (“It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”).
[146] AIRPORTS AUTH. v. CITIZENS FOR NOISE ABATEMENT, 501 U.S. 252 (1991) (“[A]s James Madison recognized, . . . ‘It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.’”).
[147] Commonwealth v. Gonsalves, 432 Mass. 613, 619 (2000) (“An act of one branch of government does not violate art. 30 unless the act "unduly restrict[s]" a core function of a coordinate branch. See id. "The essence of what cannot be tolerated is the creation of interference by one department with the power of another department." New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 410 (1979).”); O'Coin's Inc. v. Treasurer of the County of Worcester, 362 Mass. 507 (1972)
[148] See Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (With a clearly ignorant understanding of the separation of powers, Judge Ireland explains that even though the SJC did not construe Chapter 207 to permit same-sex marriage, the SJC reformulated the meaning of that word, thus, changing the marriage statute. He says: “Rather than strike down the marriage laws, however, we redefined the common law and "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . . We did not reach the question whether the Massachusetts State Constitution contains a right to marry, nor did we find that G. L. c. 207 could be "construed to permit same-sex couples to marry. . . . Moreover, because Goodridge's discussion of marriage was based on ‘the undefined word 'marriage' as used in G. L. c. 207,’ id. at 319, it logically follows that Goodridge's redefinition of civil marriage applies to the entire marriage statute (G. L. c. 207).”).
[149] http://www.buddybuddy.com/mar-mass.html; In Defense of the Family, by Maggie Gallagher, June 25, 2004, http://www.nationalreview.com/comment/gallagher200406250924.asp (“Romney points out that small things have already begun to change, foretelling the bigger, sadder changes to come. First, the marriage licenses change so they no longer read husband and wife but ‘Party A’ and ‘Party B.’”); see also Birth certificate policy draws fire, Change affects same-sex couples, by Michael Levenson, Globe Correspondent, July 22, 2005 http://www.sbministries.org/blog/index.php?m=2005 (“Governor Mitt Romney's administration is advising hospitals to cross out the word father on birth certificates for the children of same-sex couples and instead write the phrase ''second parent," angering gay and lesbian advocates and city and town clerks who warn that the altered documents could be legally questionable. Eric Fehrnstrom, Romney's spokesman, said yesterday that the Department of Public Health, which the governor oversees, has been has been advising hospitals to alter the documents since last year, when the first children were born to same-sex married couples were born. Fehrnstrom insisted that the practice is legal. But city and town clerks, who register and store birth records, argue that the cross-outs on the birth certificates could make them open to challenges by passport agents, foreign governments, and other officials. They have repeatedly asked Romney to create a new birth certificate for the children of same-sex parents that would include gender-neutral nomenclature. But Romney has resisted, arguing that the Legislature must first pass a law authorizing such a change. . . . In February, Romney, on a political trip to South Carolina, told a Republican group that he was dismayed by the clerks' effort to have birth certificates revised for the children of gay couples. ''Some [same-sex couples] are actually having children born to them," Romney said. ''It's not right on paper; it's not right in fact," he said. ''Every child has a right to a mother and a father." Gay couples and their children protested the remarks outside the governor's office, accusing Romney of exploiting them for political gain. Yesterday, Fehrnstrom said the governor believes that hand-altered birth certificates are valid. ''As long as they're recorded, they're valid," Fehrnstrom said. He argued that the Supreme Judicial Court ruling that legalized same-sex marriage put the onus on the Legislature to change the birth certificates. Fehrnstrom cited a passage in the SJC decision that postponed the start of gay marriages for 180 days from when the ruling was issued in November 2003 ''to permit the Legislature to take such action as it may deem appropriate in light of this opinion." Nevertheless, the administration did not wait for the Legislature to act when it rewrote marriage certificates for gay couples to say ''Party A" and ''Party B," gay rights advocates said. . . . Fehrnstrom argued that the administration's decision to rewrite marriage certificates and not birth certificates was consistent with the court ruling on same-sex marriage, known as Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003). ''The Goodridge decision addressed the issue of marriage, and the case with the marriage certificates goes to the heart of the court's ruling," he said. ''With respect to any ancillary issues, we are proceeding cautiously in the absence of legislative guidance.").
[150] See http://www.beliefnet.com/story/145/story_14580_1.html, For Some Justices of Peace, Conflict in Carrying Out Gay Weddings, By William Bole, Religion News Service, May 11, 2003 (“Despite his personal opposition to gay marriage, Republican Gov. Mitt Romney has given an ultimatum to justices of the peace, who number more than 1,200 in Massachusetts. He says they will have to perform gay marriages or turn in their appointments, by order of the state's Supreme Judicial Court.”).
[151] "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." -- Thomas Jefferson.
[152] One Man, One Woman; A citizen's guide to protecting marriage, The Wall Street Journal, Thursday, February 5, 2004 12:01 a.m. EST (http://us.f351.mail.yahoo.com/ym/ShowLetter?MsgId=8762_4725788_33451_1558_103735_0_370_200864_3227027655&Idx=0&YY=45812&inc=25&order=down&sort=date&pos=0&view=a&head=b&box=Inbox)
[153] Governor Romney has violated his duty to enforce the laws of the Commonwealth by failing to uphold the statutory law, Chapter 207, that has prohibited and continues to prohibit same-sex “marriages.” The Governor cannot, under a Constitution that creates his office and, therefore, his authority and which explicitly employs the word “marriage” in its text, authorize the certification of and solemnization of relationships that flout that very word. Nor can he, where the statute clearly prohibits the conduct and has yet to be repealed, enforce the opposite of what it prescribes under his duties as Chief Executive. In fact, the act of solemnizing a marriage without authority under the laws of the Commonwealth is a criminal act. See Chapter 207: Section 48. Solemnization of marriage without authority (“Whoever, not being duly authorized by the laws of the commonwealth, undertakes to join persons in marriage therein shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year, or both.”).
[154] See Russell v. Secretary of Commonwealth, 304 Mass. 181, 187 (1939) (“A suggestion of the death of the petitioner on September 22, 1939, has been filed in each case by his administratrix. She has also filed motions that she be substituted as party petitioner in each case. Those motions are allowed. She, however, has no greater rights than her intestate had, and the motions to dismiss filed by the respondents are allowed, and in each case the petition is dismissed.); Lawson v. Rowley, 185 Mass. 171, 172-173 (1904) (statute expressly gave to justices of peace the power to punish contempt by a fine, but without an express grant to punish in any other way, that power is limited to punishment by fine); compare Cleaveland v. Malden Savings Bank, 291 Mass. 295 (1934) (“The plaintiff did not ratify and confirm the deed to her son, but on the contrary, on recovering her sanity, successfully proceeded in equity against him to set aside the deed on the ground that it was a void instrument because of her mental incapacity at the time it was executed. . . . [T]he deed was void from its inception. If the mental incompetency of the plaintiff is established in a proceeding by which the defendant is bound, the defendant as an innocent purchaser for value from the son to the extent of its mortgage stands no better than the son and acquired no title to the land. Brewster v. Weston, 235 Mass. 14, 17. Since the deed of the plaintiff to the son has been declared void, she has been in truth the owner of the land at all times here material.”) Keville v. Mckeever, 42 Mass. App. Ct. 140 (1997) (“The judge found that the Harvard Avenue deed was forged and, accordingly, the Porsche Realty Trust mortgage was void. ... If the mental incompetency of the plaintiff is established in a proceeding by which the defendant is bound, the defendant as an innocent purchaser for value from the son to the extent of its mortgage stands no better than the son and acquired no title to the land. Since the deed of the plaintiff to the son has been declared void, she has been in truth the owner of the land at all times here material." (Citations omitted.).”); Commonwealth v. Johnson Wholesale Perfume Co. Inc., 304 Mass. 452 (1939) (“When a subject has been fully regulated by statute an administrative board cannot further regulate it by the adoption of a regulation which is repugnant to the statute.”); Mass. Federation of Teachers v. Bd. of Education, 436 Mass. 763 (2002) ("[A] regulation that is irreconcilable with an agency's enabling legislation cannot stand." quoting Quincy v. Massachusetts Water Resources Auth., 421 Mass. 463, 468 (1995).” . . . The agency may not exceed those powers and obligations expressly conferred on it by statute or reasonably necessary to carry out the purposes for which the statute was enacted).
[155] Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951) (“Massachusetts since 1780 has been governed by a written Constitution, wherein the various organs of government are enumerated and their powers defined. The people themselves and all branches of their government, legislative, executive, and judicial alike, are bound by it and owe to it implicit obedience. By that Constitution, until the adoption by the people in 1918 of art. 48 of the Amendments, all power to enact laws was vested in the Legislature. By that amendment provision was made whereby in a carefully prescribed manner and with certain precisely defined safeguards designed to make certain that there should exist a wide popular demand, to prevent hasty action, to promote wide publicity, and to acquaint the voters with the proposed laws and with the arguments for and against them, laws could be enacted by direct popular vote, except in relation to certain "excluded matters." Since the people have themselves adopted the Constitution with its amendments for their government, they are bound by the provisions and conditions which they themselves have placed in it, and when they seek to enact laws by direct popular vote they must do so in strict compliance with those provisions and conditions. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 247--248. Failure to comply will mean that no valid law has been enacted, no matter how great the popular majority may have been in its favor. Only by preserving this fundamental principle can constitutional government be preserved and orderly progress assured. The question whether or not the requirements of the Constitution have been observed and a valid law has been enacted is a justiciable question to be determined in the last analysis by the judicial department of the government whenever the question arises in a proper proceeding in court. And since the judges are bound by the Constitution and must see that its provisions and conditions are at all times faithfully observed, they must determine that question with sole reference to the facts of the case and the language of the Constitution and without the slightest regard to their own personal views as to the desirability or otherwise of the law involved.
It is proper to observe at this point that we cannot agree with the argument of the respondents that because the new c. 118A has actually been voted upon and certified by the Secretary of the Commonwealth it is conclusively presumed to be valid whether or not the requirements of the Constitution have been followed. This is a misapplication of the principle that the enrollment of a statute is conclusively presumed to embody the action taken by the Legislature upon it. Field v. Clark, 143 U. S. 649. That principle rests both upon the respect due to the legislative branch of the government and upon the confusion which would result if the courts were obliged to inquire as to all statutes into the legislative proceedings prior to enrollment. The first reason has no application whatever to initiative laws and the second reason has little, if any, force in relation to such laws. It would be astonishing and intolerable if the safeguards so carefully inserted in art. 48 could be disregarded without consequences by individual State officers and so in effect turned into mere admonitions and recommendations. The Constitution is not ordinarily treated in that manner. See Cooley, Constitutional Limitations (8th ed.) 159--164. The case of Field v. Clark was explained in Wilkes County v. Coler, 180 U. S. 506, 521--524. In the latter case it was held that failure to observe a requirement of the Constitution of a State that a vote by yeas and nays be entered on the journal of the Assembly rendered a law invalid. See Kay Jewelry Co. v. Board of Registration in Optometry, 305 Mass. 581, 584; Prescott v. Secretary of the Commonwealth, 299 Mass. 191, 196; Scullin v. Cities Service Oil Co. 304 Mass. 75, 83--84; Opinion of the Justices, 99 Mass. 636, 637; Opinion of the Justices, 135 Mass. 594, 600. The great variety of view that exists, even where the question relates to the passage of an act of the Legislature, is indicated by the cases collected in 40 L. R. A. (N. S.) 1.”).
[156] Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951)
[157] If a “marriage” between a man and his mother is void because it is not permitted by c. 207, and if a “marriage” between a man and an underage female is void because it is not permitted by c. 207, and if a “marriage” between a male and a female (one of whom has communicable syphilis) is void because it is not permitted by c. 207, and if a “marriage” where the person presiding over it is not a person with authority to solemnize a marriage is void because it is not permitted by c. 207, and a marriage between three people is not permitted by c. 207 (even if not explicitly addressed in the words of the statute), then a same-sex marriage would be void ab initio under the statute as well, since as the SJC pointed out, the framers of the statute never intended it to permit same-sex “marriage.” See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003). Compare Heistand v. Heistand, 384 Mass. 20 (1981) (“The ceremonial exchange of vows between the plaintiff and David Lowry was a legal nullity in this Commonwealth, as the judge below acknowledged. Massachusetts does not recognize common-law marriage.”); see also Callow v. Thomas, 322 Mass. 550 (1947) (“We are of opinion that the exception recognized in these cases is sound and that the present case falls within it. At the time of the accident the parties were husband and wife for all intents and purposes. Had no proceedings been brought to annul the marriage, this status would have endured until the marriage was terminated by death or divorce. In other words, the marriage here was voidable and not void and was valid until it was set aside by the decree of nullity. It is to be observed that this is not a case of a marriage prohibited by law such as a bigamous marriage or one prohibited by reason of consanguinity or affinity between the parties. Such a marriage is no marriage at all and is "void without a decree of divorce or other legal process." While it doubtless is true that a decree of nullity ordinarily has the effect of making a marriage, even one which is voidable, void ab initio, this is a legal fiction which ought not to be pressed too far. To say that for all purposes the marriage never existed is unrealistic. Logic must yield to realities. Public policy requires that there must be some limits to the retroactive effects of a decree of annulment.”).
[158] See Commonwealth v. Miranda, 441 Mass. 783 (2004) (“The Appeals Court concluded that the amended indictment was a "legal impossibility" and vacated the defendant's conviction as a repeat offender. Commonwealth v. Miranda, 59 Mass. App. Ct. 378, 381, 388 (2003).”); Commonwealth v. Miranda (2003) (“Before commencing trial on indictment no. 1281, the judge purported to amend the indictment on which there had just been a verdict, no. 1280, by engrafting the repeat-offender portion of no. 1281 onto 1280 as a second count. But this amendment was a legal impossibility. . . . The postverdict amendment of indictment no. 1280, engrafting the repeat-offender portion of indictment no. 1281 as a second count, was therefore fundamentally defective, and the subsequent trial based on that amendment was a legal nullity. See Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 456, S.C., 430 Mass. 517 (1999), cert. denied sub. nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000) ("if the [repeat-offender] indictment is legally deficient, the court is without jurisdiction to try the case"). . . . the defendant was convicted of an offense for which he was not indicted by a grand jury,”); Commonwealth v. Fenton, 395 Mass. 92 (1985) (“[O]ur decision in Commonwealth v. Rhodes, 389 Mass. 641, 644 (1983), mandated that, as an adult,(fn2) [the defendant’s] conviction for carrying a carbon dioxide (CO2) powered revolver was a legal impossibility because an air gun is exempted from the operation and penalties of G. L. c. 269, § 10 (a) (4).(fn3) A Superior Court judge denied the defendant's motion [to the same effect]. The defendant appealed and the Appeals Court reversed the conviction holding that "Rhodes excludes all types of air guns from the operation of G. L. c. 269, § 10 (a), and ... the gun in question comes within a common lexical definition of the term 'air gun' or 'air rifle.'" Commonwealth v. Fenton, 18 Mass. App. Ct. 537, 538 (1984). . . . Possession of "any type of air gun," by either an adult or a minor is regulated exclusively by G. L. c. 269, § 12B. We therefore conclude that, because § 12B imposes no penalties for possession of an air gun by an adult, the defendant's conviction under G. L. c. 269, § 10 (a), is erroneous.”); Partnership Equities Inc. v. Marten, 15 Mass. App. Ct. 42 (1982) (“[U]nder the subscription contract, the defendants enjoyed the status of limited partner upon making their first payments and, according to financial information appearing in the record, would have enjoyed substantial benefits by way of passed through losses. Compare Goodisson v. North American Sec. Co., 40 Ohio App. at 89, 93--94, where the subscriber was not yet a stockholder of record and delivery of the shares subscribed to had become a legal impossibility.”); Commonwealth v. Carson, 349 Mass. 430, 435 (1965) (“If the jury found the defendant embezzled some or all of the shares (including the trust certificates representing the class A stock), as they must have found, we think a finding of guilty on the "proceeds" indictment, since it may have related to some or all of the shares within the "stock" indictment, is inconsistent and results in two convictions for a single crime. It is well settled that "a prosecution for embezzlement may follow money embezzled through a dozen reinvestments, so long as it is in the embezzler's hands." . . . In the leading case of Commonwealth v. Haskins, 128 Mass. 60, the . . . court held that the attempt of the Commonwealth to enter a nolle prosequi on one of the counts after the convictions was of no avail and that "although, as a legal effect of a conviction upon each count it cannot be said strictly that it is an acquittal upon the other, yet the finding of guilty upon both is inconsistent in law, and is conclusive of a mistrial." Id. at 61. . . . We conclude, therefore, that the judgments on the indictments for larceny of stock and larceny of money proceeds from the sale of stock must be reversed.); Quinlan v. Mealey, 270 Mass. 284, 286 (1930) (“When the contract was made the conservator had no legal authority to use or dispose of the property of his ward in any manner other than he was authorized to do by the Probate Court. Performance of the agreement at the death of the husband, while then possible in fact, was impossible within limits legally possible when the agreement was made and ever after. The legal impossibility was apparent on the face of the attempted contract. The contract was void, and the plaintiff was not entitled to damages for the defendant's refusal to perform it.”).
[159] See footnote 2
posted by Robert Paine, Esq. at 9:31 PM
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