Same-sex marriage licenses are null & void
BEFORE MAY 17, 2003, the marriage law did not permit same-sex "marriage." Thus, for gay marriage to be "legal" in Massachusetts . . . the law had to change. All three branches of government concurred, as well as conservatives, liberals, and gay activists. BUT the law was never changed.
BEFORE MAY 17, 2004, the JUDICIAL BRANCH knew the legislature would have to change the marriage law for same-sex "marriage" to become legal.
The Supreme Judicial Court (SJC) judges who wrote the Goodridge decision (i.e., the judicial branch) in November, 2003, knew they did not have the power to suspend the marriage law, which is why they explicitly did not strike it down (see Goodridge decision).
Rather, the Legislature was told to act within 180 days. The Court, however, did not order the legislature to change the laws. Nor did the Court order the Department of Public Health, a party in the Goodridge case, to issue marriage licenses (because the statute did not then, does not now, and never has permitted such marriages). The court simply "declared" an opinion regarding the constitutionality of the marriage statute.
The SJC clarified their Goodridge ruling in February of 2004 writing to the Senate, "The purpose of the stay was to afford the Legislature an opportunity to conform the existing statutes to the provisions of the Goodridge decision."
Why didn't the SJC simply order the laws to change? Because, as the Court recently held (in its opinion regarding the legislature's constitutional duy to vote on the citizens' proposed marriage amendment), it has no power to order another branch of government to act.
So then how can Mitt Romney claim the SJC (the judicial branch) would have forced him (the executive branch) to issue marriage licenses and get away with it?
Before May 17, 2004, STATE LAWMAKERS knew the legislature would have to change the marriage law for same-sex "marriage" to become legal.
In the Legislative branch, State Sen. Bruce E. Tarr, a gay-marriage supporter, also said in April of 2004, he believed the Legislature would ultimately pass bills that would insert gender-neutral language into the state's marriage laws in time for the May 17, 2004 deadline. "No one should interpret inaction thus far with the idea that no action is forthcoming."
Why did liberal Legislators state that a change in the law was forthcoming?
Before May 17, 2004, MITT ROMNEY knew the the legislature would have to change the marriage law for same-sex "marriage" to become legal.
Romney himself as the executive branch in April of 2004 said, the Legislature "has yet to follow a directive from the SJC to change the state's marriage laws. I believe the reason that the Court gave 180 days to the Legislature was to allow the Legislature the chance to look through the laws and see how they should be adjusted for purposes of same-sex marriage; the Legislature didn't do that."
Why did Governor Romney, himself, agree that the legislature would need to change the laws?
Before May 17, 2004, even THE OPPOSITION'S LEGAL COUNSEL admitted that the legislature would have to change the marriage law for same-sex "marriage" to become legal.
GLAD Attorney Mary Bonauto, representing the seven gay couples who sued the state, agreed saying immediately after the 2003 Goodridge ruling, "The only task assigned to the Legislature is to come up with changes in the law that will allow gay couples to marry at the end of the 180-day period."
Why did Mary Bonauto believe the law had to be changed?
Before May 17, 2004, LIBERAL POLITICIANS knew the the legislature would have to change the marriage law for same-sex "marriage" to become legal.
In a letter to the Massachusetts legislature, Laurence Tribe, former Massachusetts Attorney General, William Weld, former Massachusetts Governor, Scott Harshbarger, former Massachusetts Attorney General, James M. Shannon, former Massachusetts Attorney General, Renee M. Landers (President Boston Bar Association urged the legislature . . . "to use the remainder of the time period in the court's stay to take any and all steps possible to facilitate the orderly issuance of marriage licenses to qualified same-sex couples. . . . Tribe, in an interview, said the letter is intended to urge lawmakers on both sides of the issue to pave the way and change existing state laws to bring them into compliance with the ruling, which the court stayed for six months to give the Legislature time to act.
Why did liberal politicians urge the legislature to change the laws?
Before May 17, 2004, PRO-FAMILY LEADERS knew the legislature had to change the marriage law for same-sex "marriage" to become legal.
Why did Pro-family leaders ask the Governor to ignore the Goodridge opinion?
a. Tony Perkins, President, Family Research Council, 3-30-04
"FRC's Perkins says federal legislators should take heed. 'All eyes are now on Governor Mitt Romney, who is the last defense for marriage in Massachusetts,' he says."(Agape Press)
b. Genevieve Wood, Family Research Council, 3-30-04
'I think what's most important right now is for the governor to stand firm [and] not allow any marriage licenses to be handed out on May 17.' ”
c. Robert Knight, Director, Culture & Family Institute, Concerned Women for America, 3-30-04
"Supporters of traditional marriage are urging Romney to intervene via an executive order that would allow the legislative process to proceed. 'It's now up to the governor to put the brakes on this madness,' says Robert Knight of the Culture and Family Institute. 'He needs to make it clear that the law has not changed, and that on May 17, homosexual couples cannot make a mockery of God's institution of marriage.' (Agape Press)
d. Mat Staver, Esq, Liberty Counsel (http://www.lc.org/ProFamily/mass.htm)
Governor Mitt Romney . . . has the authority to preserve the definition of marriage, and thus the authority to issue an Executive Order prohibiting the issuance, solemnization and recordation of same-sex marriage licenses. Moreover, since the Executive branch enforces the law, it does not have to implement or enforce the decision of the Massachusetts Supreme Judicial Court. Without the Executive branch enforcing the court decision, the court’s ruling is meaningless. The Department of Public Health, the Registrar and the City and Town Clerks all come under the Executive branch. (May 2004)
“The executive branch, through the governor, is empowered to issue an executive order refusing to implement the ruling, Staver contends. The Massachusetts legislature also is empowered to pass a law stating that courts have no authority to redefine marriage.” (5-18-04 - WorldNetDaily)
e. Dwight Duncan’s Boston.com Blog ((authored by Jonathan Goulding, Ave Maria School of Law, 5/14/2004)
Therefore, when the Court found that those statutes did not permit same-sex marriages, the Court effectively denied town clerks and Department of Health officials the ability to confer marriage upon same-sex unions until the legislature takes further action.
Principles of our democratic republic demand that law be created by duly elected representatives. Those in the executive branch or in subordinate agencies-for example, town clerks-are not permitted to create law on an ad hoc basis. When, as has happened in Massachusetts, a state's highest court allows time for a legislature to change current statutes, procrastination on the part of the legislature does not empower those responsible for implementing existing law to proceed as if the statutes had been duly changed. Simply put, state officials may not implement a legislative scheme that does not yet exist…Aside from an entry of the Court's judgment declaring that the lack of provision in the law for same-sex marriage is unconstitutional, nothing more will result. There will be no provision for valid same-sex marriages.
f. Judge Robert Bork
Judge Bork called the illegal imposition of homosexual "marriage" in Massachusetts "completely untethered from the state or federal constitutions and from the rule of law.”
g. Hadley Arkes, Professor of Jurisprudence, Amherst College, “The Missing Governor” 5-17-04
"Romney could invoke his powers under the constitution; cite the error of the court in seizing jurisdiction wrongfully for itself; and order all licenses of marriage to be sent on to Boston, to his office, until the legislature, in the fullness of time, settled its policy on marriage…. Is it now too late? That isn't altogether clear. Today has become the decisive date only because of the holding of the Supreme Judicial Court. But this argument over the error of the court, or the wrongful taking of jurisdiction, does not expire on May 17. That argument is still open, which means that it could be plausible for the governor to make that move at any time. But why should he make that move when receding has now become his signature tune?
h. Dr. James Dobson, Focus on the Family, 5-18-04
"Dobson … said he's distressed the decision to legalize marriage for same-sex couples was fueled by a politically correct agenda with 'no regard for the rule of law' … 'This is not the first time a tyrannical court – in this case the Massachusetts Supreme Judicial Court – has force-fed the people a liberal agenda disguised as the rule of law,' he said. 'But it may be the most devastating example of that kind of judicial activism.' ”
i. Tom Minnery, Vice President Focus on the Family
It is the constitutional duty of the Legislature, the elected representatives of the people, and not the courts, to decide the social policy for the state."
j. Patrick J. Buchanan, “Mitt Romney: Meet Calvin Coolidge” 2-9-04
“What's a governor to do? … Defy the court. Romney should step out in front of the state press corps and read a statement that would stun America, rally social and judicial conservatives of both parties, and bring every network camera in the nation to Boston: ‘I have read the court's decision, and while I respect the court, I cannot respect its decision. There is no basis for it in law. There is no basis for it in precedent. There is no basis for it in the letter or spirit of the constitution of our Commonwealth nor in the intent of the men who wrote that constitution… And as I took an oath to defend the Constitution of the Commonwealth, I intend to disregard the court order of last November…. I will neither propose nor will I sign any bill from the legislature that places homosexual unions on a moral and legal plane with traditional matrimony. To do so would violate my oath, conflict with my beliefs and trample upon the convictions of the people of this state.' After issuing his statement, the governor should take up leadership of the fight to put on the state ballot a constitutional amendment restricting marriage in Massachusetts to men and women. What would the Massachusetts high court do? Declare Romney in contempt? Order Romney's arrest? Tell state employees to start accepting requests from homosexuals for marriage licenses? Romney could tell the employees to politely reject such requests….” (syndicated column, “Mitt Romney: Meet Calvin Coolidge”)
Why did Pat Buchanan believe the Governor could ignore the SJC ruling?
k. Dan Avila, Massachusetts Catholic Conference
“The Justices could point to no other justification for their ruling than their own beliefs. They have ordered the legislature to act within 180 days. That means the legislature is now being forced to change all the laws that address marriage, including the anti-discrimination laws. [Responses of Roman Catholic Bishops in Massachusetts to Goodridge Decision, Nov. 18, 2003; http://www.macathconf.org/03goodridge_press_statements.htm]
Why did Dan Avila believe the legislature was going to have to change the law?
l. Ronald A. Crews, president of the Massachusetts Family Institute in 2004
"[A]t least [the liberal politicians listed above] are acknowledging that the debate is now before the Legislature, and I believe that is the proper venue." Crews also said: One alternative is to convince Gov. Mitt Romney to issue an executive order to city and town clerks halting the issuance of marriage license to same-sex couples . . .
Why did Ron crews believe the legislature could debate this still?
m. Jan LaRue Legal Counsel, Concerned Women for America, 2-5-04
"Jan LaRue dismissed the notion that same-sex "marriage" was now inevitable in Massachusetts. 'The court expressly refused to strike down the state's marriage laws,' LaRue said. 'They are still on the books. The court did not order the Legislature to grant same-sex marriage. It gave the Legislature 180 days to take whatever action 'it deemed appropriate in light of the ruling. (Talon News)
n. Article 8 Alliance/MassResistance, Dec. 2003
"The Governor must issue an executive order openly defying any further action by the Superior Court and ordering that: Neither the Department of Public Health nor any public employee in Massachusetts may disobey the current marriage laws; and same-sex marriage licenses will NOT be legally recognized in Massachusetts.”
Conventional wisdom says that the SJC created same-sex "marriage."
But a basic principle is that courts do not make laws, only legislatures do. See Bowe v. Secretary of the Commonwealth , 320 Mass. 230 (1946) (“The people by the Constitution created the legislative branch of government as well as the executive and judicial branches, and conferred and at the same time limited the powers of each of them. Each must act pursuant to the Constitution and within the authority conferred by it.”).
If the Goodridge ruling DID indeed "change the law," then why, BEFORE MAY 17, 2004, did everyone quoted above say that the legislature would need to "change the law?"
What exactly would the legislature need to have done if the SJC had already taken care of it?
AND THEN . . . AFTER MAY 17, 2004,
But if the Goodridge ruling DID NOT change the law, and the law has never been changed, then why, AFTER May 17, 2004, did everyone, especially pro-family conservatives (except for Mass. Resistance), act like it had been changed?
If nothing happened (in terms of legislatively changing the marriage laws) between November, 2003 (when the Goodridge decision was published) and May 17, 2004, and the Supreme Judicial Court had never ordered the Governor to do anything, then why did Romney decide unilaterally that a "new law" existed and why did he order town clerks to start issuing same-sex marriage licenses? If nothing had changed between April of 2004 when Mitt Romney said "the Legislature [needed] to look through the laws and see how they should be adjusted for purposes of same-sex marriage," then why were same-sex marriage certificates being given out on May 17, 2004? If the law needed to be changed and it never was, then how could "marriage" licenses be legal?
So what is the legal status of same-sex marriage in Massachusetts?
Nemo dat qui non habet (“You cannot give what you do not have”). That is, Romney could not give what he did not have. Romney had no enabling statute, nor is there one today, to permit same-sex couples to marry.
Bottom line: Prior to the issuance of marriage licenses to same-sex couples by Gov. Romney's Department of Public Health, every organization and entity with an interest in this issue declared publicly that the law needed to change--including gay activists, conservatives, the Catholic Church, liberal constitutional lawyers, and all three branches of government (judicial, executive, and legislative), including Mitt Romney himself. Yet in May of 2004, Mitt Romney, without any legal authority, ordered marriage licenses to be issued to same-sex couples. Thus, Romney enabled fraudulent "weddings" to be performed, and the issuance of marriage certificates that are legally null & void today. Hopkins v. Clemson Agricultural College of South Carolina, 221 U.S. 636 (1911) (A void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection.).
Can this fraud be allowed to continue unchallenged?
I have found no better answer than that from two of our greatest Americans, Abraham Lincoln and Martin Luther King.
"The answer is simple. Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;--let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap--let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;--let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars."
While ever a state of feeling, such as this, shall universally, or even, very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.
The Perpetuation of Our Political Institutions
Address Before the Young Men's Lyceum of Springfield, Illinois January 27, 1838
And Martin Luther King said: "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."
Martin Luther King's
Letter from Birmingham Jail