Sorry Chad, but support for Ron Paul requires a certain calculated detachment from reality that I'm afraid many of us are unable and unwilling to attain.
Upon further reflection, I blame Romney for gay marriage and will not support his candidacy for President. I would have loved to have been the governor of Massachussetts when that state's Supreme Court gave its opinion. There would not be gay marriage in Massachussetts today, the make-up of the state supreme court would probably be different, and the social landscape would be different even outside of Massachussetts but Romney's reaction was at best cravenly abject; at worst it was downright complicit.
Odd. What precisely would you have done, Joel, when the Massachusetts Supreme Court gave that ruling, considering that the commonwealth's constitution gives that body the right and duty to control all "important questions of law"?
The Massachussetts supreme court changed the definition of marriage (a legislative action) and then gave the state legislature a deadline to enact legislation that would reflect that change. When the deadline came and went Gov. Romney took it upon himself to issue an executive order that effectively implemented the supreme courts fiat. The whole thing was a sad travesty of the democratic deliberative process. None of it reflected the will of the people of Massachussetts and Romney came out of it looking either sinister or impotent. Romney should have told the state supreme court to enforce its own rulings and left legislative work in the hands of the legislature.
Joel, I agree with you on most everything here, but your foundation is off. I believe the court was wrong, but it still interpreted Mass. law to mean a certain thing.
To quote them: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . It leaves intact the Legislature's broad discretion to regulate marriage."
And again: "We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. . . Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion."
The court did not ORDER the Legislature to do anything. What it did was delay the effect of the ruling for 180 days to let the legislature act IF IT WANTED TO. The legislature chose not to act in that time period. Same-sex marriage became legal regardless of the legislature's inaction.
Romney, as executive of Massachusetts, could not constitutionally tell its highest court to "enforce its own rulings," no matter how much he (or we) disagree with them. He obeyed his constitutional duty while declaring his disagreement with the court's interpretation and defending traditional marriage. One could certainly argue that this course was preferable strategically to the PR nightmare of a constitutional crisis you would have apparently recommended.
Lest it be overlooked, I wholeheartedly agree with you that the court drastically overstepped its bounds and took what was properly legislative action in its ruling. New York's highest court, to its credit, chose not to make that same mistake. But an executive has virtually no legal grounds to refuse to enforce such a mistaken and improper judgment.
I know you're more well-educated than I am in these matters and it's certainly foolhardy of me to keep responding, but I find I must.
Your characterization of the court's directions to the legislature is somewhat disengenuous. Had the court been striking down the institution of marriage in explicit terms that ruling could have been immediately effective. The delay between ruling and implementation did not reflect tentativeness on the part of the court or courtesy toward the legislature. The court was legislating without access to the legislative machinery. So it delegated.
The 180 days was not so that the legislature could amend the constitution (which would have been logistically impossible and unnecessary) or so that it could pass a defense of marriage law (which no such law would ever satisfy the requirements of the court's decision.)
But the legislature dithered for a hundred feckless reasons and when the 180 days passed gay marriage was still not the law of the land in Massachussetts because the supreme court can not make laws. Had no one done anything there would have been considerable legal ambiguity, but there would not have been gay marriage.
In the absence of legislative action it took an executive order from the governor to make that happen.
Had Romney issued an executive order preventing licenses from being granted to homosexual couples that would not have provoked a constitutional crisis, as you suggest. It would have provoked the legislature which would have had to choose between changing the law, impeaching judges, or doing nothing.
The legislature preferred inaction to accountability, and Romney made a great show of reluctant resignation, and the court hid behind a cloak of unchecked license that the constitution never gave them and so the indignation of the people dissipated without a target to fix on. This is the velvet tyrrany of our times and not the robust democracy of checks and balances that our founding fathers had in mind.
Joel, I don't like to argue with you, especially since I'm sympathetic to the larger point here, but you're just wrong on the effect of the ruling.
Whether you agree or not doesn't change the fact that the 180-day delay between ruling and implementation had no legal effect.
You are right that the court was legislating. You are -- unfortunately -- wrong to suggest that it needed any other branch to act to do so. The court characterized its action as an interpretation or construction of "civil marriage." That action was within its power. Suggesting that gay marriage was not the law of the land in Massachusetts after the 180-day period expired is simply inaccurate. The court had spoken.
The executive order you would have had Romney issue would have effectively been a challenge to the Supreme Court's interpretation of the law. Since Marbury v Madison, that has been the province of the judiciary. The executive has virtually no role, especially in Massachusetts, in interpretation. The legislature was the only branch that could have acted constitutionally.
Your argument is based on rhetoric with which I largely agree. Unfortunately it hangs on a misunderstanding of the effect of the court's ruling. I repeat: to say that "gay marriage was not the law of the land . . . because the supreme court cannot make laws" is simply and flatly wrong. The Supreme Court cannot make laws, but it can interpret them. And that is precisely what it did here, as quoted above.
The supreme court could have ruled that the state's marriage law was unconstitutional because of its interpretation of the constitution. I will admit that the supreme court would have had the right to declare laws establishing marriage and setting parameters for participation in that covenant as being unconstitutional. It can not, however, change those parameters. That is a legislative action. This is from that supreme court's reporter of decisions.
The opinion reformulates the common-law definition of civil marriage to mean "the voluntary union of two persons as spouses, to the exclusion of all others. Nothing that "civil marriage has long been termed a 'civil right,"' the court concluded that "the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare."
Because the judiciary lacked the will or audacity to strike down the body of codified law establishing marriage it chose instead to amend those laws, which it never had the right to do. Because their opinion by itself would not have the effect of updating the forms and certificates, of rewording all the pertinant provisions and tax laws and so on it was necessary for the legislature to comply.
Becaue the governor was himself a constitutional agent, sworn to uphold the constitution, he had the prerogative of resisting the court's usurpation of legislative authority, but instead made himself complicit with his executive order.
Constitutionally speaking, how could a governor ever issue an executive order against his will, against his better judgment, and against his understanding of the constitution?
Anyway, I'm way out of my depth and having said this, I'll let you, Steve, have the last word.
It's good that Josh posted all those pictures of Hume Lake to drive this far enough down his page to avoid annoying people.
The reporter of decisions explains the meaning of the case to people, but that explanation means nothing legally. Most simply -- please trust me on this -- the court decided that the word "marriage," in all Massachusetts law, applied to same-gender couples just as it did opposite-gender couples. You can claim all day long that this was a legislative act, and I'll even agree with you, but the way it was done (a construction of a term) guised it in the clothing of judicial interpretation.
As I stated, the 180-day delay was designed to allow the legislature to act if they chose to do so. They did nothing; the meaning of "marriage" in Massachusetts changed after those 180 days regardless. The only thing that would have stopped it was a specific law from the legislature limiting marriage to opposite-gender couples.
Romney had a choice to make. As the executive, faced with an interpretation of law from his state's highest court and complacent inaction from his state legislature, he could either execute the judgment of the Supreme Court (as is his constitutional duty) or he could take a stand and refuse to do so, making the argument that their interpretation was really legislation.
Assuming the case went to federal court, the 1st Circuit would have found in favor of the court, because the language of its opinion was that of judicial interpretation. It is the role of the executive to enforce the law, as passed by the legislature and interpreted by the judiciary. What you wanted Romney to do would have made him a martyr -- on fine policy grounds, but very, very weak constitutional ones.
The proper targets for your wrath are the judges who enshrined their policy preference into the law, and the legislators who had a clear and constitutional path to overturn it, and chose not to act. Romney was compelled to take the action he did by his duty to the state.
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Sorry Chad, but support for Ron Paul requires a certain calculated detachment from reality that I'm afraid many of us are unable and unwilling to attain.
Upon further reflection, I blame Romney for gay marriage and will not support his candidacy for President. I would have loved to have been the governor of Massachussetts when that state's Supreme Court gave its opinion.
There would not be gay marriage in Massachussetts today, the make-up of the state supreme court would probably be different, and the social landscape would be different even outside of Massachussetts but Romney's reaction was at best cravenly abject; at worst it was downright complicit.
I would probably vote for Paul before Romney.
Odd. What precisely would you have done, Joel, when the Massachusetts Supreme Court gave that ruling, considering that the commonwealth's constitution gives that body the right and duty to control all "important questions of law"?
The Massachussetts supreme court changed the definition of marriage (a legislative action) and then gave the state legislature a deadline to enact legislation that would reflect that change. When the deadline came and went Gov. Romney took it upon himself to issue an executive order that effectively implemented the supreme courts fiat.
The whole thing was a sad travesty of the democratic deliberative process. None of it reflected the will of the people of Massachussetts and Romney came out of it looking either sinister or impotent.
Romney should have told the state supreme court to enforce its own rulings and left legislative work in the hands of the legislature.
Joel, I agree with you on most everything here, but your foundation is off. I believe the court was wrong, but it still interpreted Mass. law to mean a certain thing.
To quote them:
"We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . It leaves intact the Legislature's broad discretion to regulate marriage."
And again:
"We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. . . Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion."
The court did not ORDER the Legislature to do anything. What it did was delay the effect of the ruling for 180 days to let the legislature act IF IT WANTED TO. The legislature chose not to act in that time period. Same-sex marriage became legal regardless of the legislature's inaction.
Romney, as executive of Massachusetts, could not constitutionally tell its highest court to "enforce its own rulings," no matter how much he (or we) disagree with them. He obeyed his constitutional duty while declaring his disagreement with the court's interpretation and defending traditional marriage. One could certainly argue that this course was preferable strategically to the PR nightmare of a constitutional crisis you would have apparently recommended.
Lest it be overlooked, I wholeheartedly agree with you that the court drastically overstepped its bounds and took what was properly legislative action in its ruling. New York's highest court, to its credit, chose not to make that same mistake. But an executive has virtually no legal grounds to refuse to enforce such a mistaken and improper judgment.
I know you're more well-educated than I am in these matters and it's certainly foolhardy of me to keep responding, but I find I must.
Your characterization of the court's directions to the legislature is somewhat disengenuous. Had the court been striking down the institution of marriage in explicit terms that ruling could have been immediately effective. The delay between ruling and implementation did not reflect tentativeness on the part of the court or courtesy toward the legislature. The court was legislating without access to the legislative machinery. So it delegated.
The 180 days was not so that the legislature could amend the constitution (which would have been logistically impossible and unnecessary) or so that it could pass a defense of marriage law (which no such law would ever satisfy the requirements of the court's decision.)
But the legislature dithered for a hundred feckless reasons and when the 180 days passed gay marriage was still not the law of the land in Massachussetts because the supreme court can not make laws. Had no one done anything there would have been considerable legal ambiguity, but there would not have been gay marriage.
In the absence of legislative action it took an executive order from the governor to make that happen.
Had Romney issued an executive order preventing licenses from being granted to homosexual couples that would not have provoked a constitutional crisis, as you suggest. It would have provoked the legislature which would have had to choose between changing the law, impeaching judges, or doing nothing.
The legislature preferred inaction to accountability, and Romney made a great show of reluctant resignation, and the court hid behind a cloak of unchecked license that the constitution never gave them and so the indignation of the people dissipated without a target to fix on. This is the velvet tyrrany of our times and not the robust democracy of checks and balances that our founding fathers had in mind.
Joel, I don't like to argue with you, especially since I'm sympathetic to the larger point here, but you're just wrong on the effect of the ruling.
Whether you agree or not doesn't change the fact that the 180-day delay between ruling and implementation had no legal effect.
You are right that the court was legislating. You are -- unfortunately -- wrong to suggest that it needed any other branch to act to do so. The court characterized its action as an interpretation or construction of "civil marriage." That action was within its power. Suggesting that gay marriage was not the law of the land in Massachusetts after the 180-day period expired is simply inaccurate. The court had spoken.
The executive order you would have had Romney issue would have effectively been a challenge to the Supreme Court's interpretation of the law. Since Marbury v Madison, that has been the province of the judiciary. The executive has virtually no role, especially in Massachusetts, in interpretation. The legislature was the only branch that could have acted constitutionally.
Your argument is based on rhetoric with which I largely agree. Unfortunately it hangs on a misunderstanding of the effect of the court's ruling. I repeat: to say that "gay marriage was not the law of the land . . . because the supreme court cannot make laws" is simply and flatly wrong. The Supreme Court cannot make laws, but it can interpret them. And that is precisely what it did here, as quoted above.
The supreme court could have ruled that the state's marriage law was unconstitutional because of its interpretation of the constitution. I will admit that the supreme court would have had the right to declare laws establishing marriage and setting parameters for participation in that covenant as being unconstitutional. It can not, however, change those parameters. That is a legislative action. This is from that supreme court's reporter of decisions.
The opinion reformulates the common-law definition of civil marriage to mean "the voluntary union of
two persons as spouses, to the exclusion of all others. Nothing that "civil marriage has long been termed a
'civil right,"' the court concluded that "the right to marry means little if it does not include the right to marry
the person of one's choice, subject to appropriate government restrictions in the interests of public health,
safety, and welfare."
Because the judiciary lacked the will or audacity to strike down the body of codified law establishing marriage it chose instead to amend those laws, which it never had the right to do. Because their opinion by itself would not have the effect of updating the forms and certificates, of rewording all the pertinant provisions and tax laws and so on it was necessary for the legislature to comply.
Becaue the governor was himself a constitutional agent, sworn to uphold the constitution, he had the prerogative of resisting the court's usurpation of legislative authority, but instead made himself complicit with his executive order.
Constitutionally speaking, how could a governor ever issue an executive order against his will, against his better judgment, and against his understanding of the constitution?
Anyway, I'm way out of my depth and having said this, I'll let you, Steve, have the last word.
It's good that Josh posted all those pictures of Hume Lake to drive this far enough down his page to avoid annoying people.
The reporter of decisions explains the meaning of the case to people, but that explanation means nothing legally. Most simply -- please trust me on this -- the court decided that the word "marriage," in all Massachusetts law, applied to same-gender couples just as it did opposite-gender couples. You can claim all day long that this was a legislative act, and I'll even agree with you, but the way it was done (a construction of a term) guised it in the clothing of judicial interpretation.
As I stated, the 180-day delay was designed to allow the legislature to act if they chose to do so. They did nothing; the meaning of "marriage" in Massachusetts changed after those 180 days regardless. The only thing that would have stopped it was a specific law from the legislature limiting marriage to opposite-gender couples.
Romney had a choice to make. As the executive, faced with an interpretation of law from his state's highest court and complacent inaction from his state legislature, he could either execute the judgment of the Supreme Court (as is his constitutional duty) or he could take a stand and refuse to do so, making the argument that their interpretation was really legislation.
Assuming the case went to federal court, the 1st Circuit would have found in favor of the court, because the language of its opinion was that of judicial interpretation. It is the role of the executive to enforce the law, as passed by the legislature and interpreted by the judiciary. What you wanted Romney to do would have made him a martyr -- on fine policy grounds, but very, very weak constitutional ones.
The proper targets for your wrath are the judges who enshrined their policy preference into the law, and the legislators who had a clear and constitutional path to overturn it, and chose not to act. Romney was compelled to take the action he did by his duty to the state.
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