Amy Contrada
February 5, 2012
Huckabee: Governor Romney acted unconstitutionally on "gay marriage"
By Amy Contrada

    "He could have stopped it, and should have stopped it," Huckabee said.

    CNSNews.com: Governor Romney should have stood up to the Court and said, "No"?

    Huckabee: He should've.
    (August 2008)
Old news? Yes — and Mitt Romney hopes it will be ignored or forgotten.

How does Romney manage to bury his past political sins? With a lot of help from his former critics — including Governor Huckabee — who seem to suffer from amnesia.

But what of the media's duty to vet the candidates? Shouldn't every significant action in a candidate's record be under review? Why is the media — including the supposed "conservative" media — refusing to bring up what is perhaps Romney's most serious failing as Governor of Massachusetts: his violation of the Massachusetts Constitution in implementing "gay marriage"?

Is it because they want to continue the myth that "gay marriage" was "legalized" in Massachusetts? Or because the issue won't fit into their sound bite limits? Are they all cowed by the "gay" issue it connects to? Do they really think that Tea Party-inclined voters (who so treasure the Constitution) won't be able to follow the argument? Do constitutional principles simply not matter any more? Is there no longer any true "conservative" media? Or are they all just too lazy to look into this?

As my book Mitt Romney's Deception noted, many highly respected conservative legal and political analysts urged Governor Romney to follow the Massachusetts Constitution and ignore the state high court's illegitimate marriage ruling (issued in November 2003) sanctioning same-sex marriage. That ruling stayed "entry of judgment" for six months "to permit the Legislature to take such action as it may deem appropriate in light of [the] opinion." Even though the Legislature deemed it appropriate to do nothing and refused to comply, Romney proceeded to order his executive departments to implement "gay marriage" at the end of the six-month period, without any change in the existing one man/one woman marriage law, and without a legal requirement to take such action.

According to the state constitution, the Court had no authority over marriage, had no power to order either the Legislature or Governor to carry out its wish to change the definition of marriage, and had no power to enforce its opinion. It had not even asked the Governor to do anything!

Check out the following commentaries and statements which challenged the Massachusetts "gay marriage" ruling and urged the Legislature and/or Governor to uphold the Constitution: Hugh Hewitt, Phyllis Schlafly, Stanley Kurtz (National Review), Pat Buchanan (here and here), Jan LaRue and Robert Knight (both at Concerned Women for America), Mat Staver (Liberty Counsel, here and here), Professor Hadley Arkes, Professor Dwight Duncan, Maggie Gallagher (even she recognized that Romney issued new marriage licenses without the required legislative action), Dr. Herb Titus, and Dr. Alan Keyes (here and here). Attorneys Staver and Titus recently renewed their constitutional critique of Romney's actions in 2004 (confirming that Rick Santorum's challenge to Romney in a December 2011 debate was on the mark).

Governor Mike Huckabee's critical comments from 2008 seem to have been forgotten, but are worth noting. Here is the CNSNews.com report on Huckabee's interview with Terence Jeffrey:
    Romney Should Not Have Complied with Court on Same-Sex Marriage, Says Huckabee*
    Monday, August 25, 2008
    By Terence P. Jeffrey, Editor-in-Chief, CNSNews.com

    (CNSNews.com) — Former Gov. Mike Huckabee (R-Ark.) says that Gov. Arnold Schwarzenegger (R-Calif.) and former Gov. Mitt Romney (R-Mass.) should not have complied with decisions by their state supreme courts that ordered legal recognition of same-sex marriages.

    In an exclusive video interview with CNSNews.com, Huckabee said that, had he been in Romney's shoes, he would not have used his executive power as governor to carry out the court's unilateral declaration that the [state] must certify same-sex marriages.

    "You know, it's interesting, the California decision as well as the Massachusetts decision, I don't think should ever have been implemented by the governors, Schwarzenegger and Romney," said Huckabee. "They were both decisions that the governors simply could have said the court has said that we have to do it, but let them enforce it. Because those were administrative decisions that had to put that in place and there was no mandate."

    "I would not have done that," said Huckabee, who taped an appearance on CNSNews.com's "Online with Terry Jeffrey" on August 15.

    In a 4-3 decision issued on Nov. 18, 2003, the Massachusetts Supreme Judicial Court ruled that same-sex couples have a constitutional right to marry in Massachusetts. The court gave the state legislature until May 17, 2004, to enact legislation to allow such marriages to take place.

    In the intervening time, the Massachusetts legislature did not enact a law codifying same-sex marriages. Before the May 17, 2004, deadline, however, then-Gov. Romney directed that the words "bride" and "groom" on Massachusetts marriage applications be changed to "Party A" and "Party B."

    Romney's chief legal counsel, Daniel Winslow, told justices of the peace in Massachusetts that they should carry out the decision of the court [even though the court did not require them to do so] and perform same-sex marriages or resign.

    "My message was: 'You took an oath, and you don't have to agree or disagree with the law, you took an oath to uphold the law. Your only job is to follow the law,'" Winslow told Pete Winn of CNSNews.com in January. "We'll leave it to the courts to litigate what the law is, but once the courts have ruled, if you've taken an oath under the constitution, you have to follow your oath."

    [Note by Amy Contrada: As a State Rep. candidate in 2010, Winslow was endorsed and thanked by the homosexual-transgender lobby for his support of the "gay marriage" ruling while acting as Gov. Romney's Chief Legal Counsel. It was Winslow who devised the "Party A/Party B" designation and who conducted the training sessions for Town Clerks and Justices of the Peace.]

    Some justices of the peace did resign rather than use the "Party A" and "Party B" marriage applications to conclude same-sex marriages. One of these was Kathleen Harvey of Bellingham, Mass.

    "I chose to resign," Harvey told Pete Winn of CNSNews.com in January. "I personally didn't feel that same-sex marriages were marriages. If they were civil unions, I don't think that would have bothered me, but I personally didn't feel they were marriages. I just didn't want to be officiating at one of those ceremonies."

    In fact, after the court-ordered May 17, 2004, deadline, then-Gov. Romney himself — who [says he] opposes same-sex marriage — did not allow all same-sex marriages to go forward in Massachusetts. Citing a 1913 Massachusetts law that said the state should not carry out marriages of individuals from other states if those marriages would not be recognized in the individuals' home states, Romney told clerks in Massachusetts not to issue marriage licenses to same-sex couples from out of state.

    ''Massachusetts should not become the Las Vegas of same-sex marriage,'' Romney told the New York Times in April 2004. ''We do not intend to export our marriage confusion to the entire nation.''

    [Note by Amy Contrada: But even this "1913 law" was not strictly enforced. Only the couple's word (no documents) were required as proof of Massachusetts residency. See reports in Associated Press and Boston Globe here and here.]

    ...When asked whether Romney's decision to comply with his state supreme court's order to allow same-sex marriages should disqualify him as a Republican vice-presidential nominee in 2008, Huckabee said: "Well, you know, I've not probably been an advocate for him in that position. And, you know, I am going to let him defend himself. And I don't want to relive the primary. But I think that that was a very unfortunate position that he took in saying that, 'Well, I can't do anything about it.' Oh, yes you can."

    Huckabee said he did not hold Romney "singularly" responsible for same-sex marriages in Massachusetts, but that he did hold him "responsible for implementing" them.

    "He could have stopped it, and should have stopped it," Huckabee said.

    Asked if he would have had clerks and justices of the peace certify same-sex marriages had he been in Romney's position, Huckabee said: "Absolutely not."

    "In my state, we passed an amendment to our constitution that declared marriage to be one man, one woman, by a 70-percent margin," Huckabee said in explaining his position. "I would have said that the people have a stronger right, if you will, than does one of three branches of government. And when you have a legislature, an executive branch, and the people, all lined up agreeing that marriage means man and woman, you can't have a court overturn the collective will of all those other bodies. That, again, it goes back to ninth grade civics. The courts aren't that powerful, never were intended to be."

    ... Jeffrey: Governor Romney should have stood up to the Court and said, "No"?

    Huckabee: He should've.
Of course, in reality it was much simpler than that. All Romney really had to do was do nothing — as the state legislature chose to do.



*NOTE: In accordance with Title 17 U.S.C. section 107,
this material is reproduced for non-profit educational
purposes only. For more information go to:
http://www.law.cornell.edu/uscode/17/107.shtml




© Amy Contrada

 

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