So the Human Rights Campaign is organizing a multimillion-dollar pre-emptive strike against a proposed amendment to the U.S. Constitution that would ban homosexual “marriage.” Apparently, the gay lobby doesn’t think the Constitution should be amended by two-thirds votes of both houses of Congress and majorities of legislators in 38 states, but it has no problem with having it rewritten from the bench by an oligarchy of unelected, unaccountable judges.
That’s what will, in fact, have happened in Massachusetts unless Gov. Mitt Romney exercises by May 17 the executive authority he appears to have under the state’s constitution to thwart the will of a bare majority of four members of the Massachusetts Supreme Judicial Court. That’s when the robed autocrats’ unilateral legalization of gay “marriage” is to take effect unless a sudden (unlikely) strickening of conscience prompts them to issue a stay of their edict.
To his credit, Mr. Romney has done everything short of defying the court already in his bid to undo Goodridge et al. vs. Department of Public Health, despite a lack of help from a Democratic state attorney general and the active opposition of the Democratic state Senate president. The former, while claiming to oppose the ruling, refused Mr. Romney’s request that he appeal it; the latter won’t docket emergency legislation to enable the governor to appeal the ruling himself.
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In at least the Senate president’s case, and probably in the attorney general’s as well, what’s at work here is that pro-gay “marriage” forces are willing to allow the separation of powers to be shredded if that’s what’s required to enact by judicial fiat what cannot be achieved by majority vote of the legislature.
It’s only the latest — albeit the most brazen — example of what French journalist Jean-Francois Revel in his 1978 book of the same name dubbed “the totalitarian temptation” of the left to impose its utopian agenda on an unwilling public.
But according to Glen Lavy, senior counsel with the Phoenix-based Alliance Defense Fund, a traditional-values counterpoint to the American Civil Liberties Union, the Massachusetts Constitution originally vested jurisdiction over marriage in the governor and the legislature: “All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.” (Massachusetts Constitution, Part 2, Chapter 3, Article 5.)
That provision, Mr. Lavy explains, “has consistently been interpreted to mean that the legislature has the power to leave jurisdiction over marriage, divorce and alimony with the governor and his Executive Council, or to grant jurisdiction to the courts. The legislature has never given the courts jurisdiction to redefine marriage.
“Because marriage is in the Massachusetts Constitution, the court doesn’t have the authority to change what it means. The Massachusetts Supreme Judicial Court has repeatedly said that when there is a term used in the constitution, it must be interpreted the way people understood it when they put it there, when they adopted the constitution. In 1780, the term ’marriage’ meant the union of a man and a woman. So I believe that only the people can change that definition. It requires a constitutional amendment.”
“The courts in Massachusetts simply do not have jurisdiction to define marriage,” he emphasizes, adding that Mr. Romney would be fully “justified” in issuing an executive order directing municipal clerks “not to issue marriage licenses to same-sex couples.” If some refused to comply? “I assume they would get fired,” he said. “What happens if your boss gives you an order and you refuse to follow it?”
What would be the next shoe to drop if Mr. Romney were to take that bold, long-overdue step to restore the constitutional separation of powers and put judicial activists in their place?
Mr. Lavy can foresee it causing “a constitutional crisis in Massachusetts,” but “the simple solution would be for the court to recognize that the constitution does not permit [it] to redefine marriage.”
On May 4 , Alliance Defense Fund and the Law and Liberty Institute filed a motion in Massachusetts Superior Court to intervene in the case, representing former Boston Mayor Raymond Flynn, a conservative Democrat, and a suburban Boston businessman as plaintiffs. Because the Goodridge decision is tantamount to an amendment to the Massachusetts Constitution, the court filing says, the Superior Court judge may grant the motion, dismiss the case and make the Goodridge opinion inoperative. The move follows on the heels of a similar filing last week by the like-minded American Center for Law and Justice.
“Subject-matter jurisdiction is something that is never too late to raise,” Mr. Lavy explains, “and that’s why these motions to intervene to raise subject-matter jurisdiction are not untimely. If a court doesn’t have subject-matter jurisdiction, its judgment is void. And our position is that the court did not have jurisdiction.”
Another 11th-hour option being considered is to seek an emergency injunction against the ruling in federal court, pointing to the interstate commerce nature of the matter and citing irreparable harm if it is allowed to take effect.
Yogi Berra famously said, “it ain’t over till it’s over,” and it’s clear this fight is far from over. In the meantime, it remains to be seen whether Mr. Romney — faced with the hand he has been dealt by a renegade state Supreme Court — will play his executive order trump card.
Peter J. Parisi is a copy editor for The Washington Times.
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