Originally published on Advocate.com April 17 2004 12:00 AM ET
Massachusetts governor Mitt Romney's latest attempt to block gay marriages places the debate back with the state legislature, where it faces an uphill fight despite the legislature's approval in March of a constitutional amendment banning gay marriage while allowing civil unions. While the legislature, meeting jointly in a constitutional convention, ultimately approved the marriage ban on a 105-92 vote, that outcome was reliant on strong support from members of the house. Among state senators, however, 22 of 40 lawmakers opposed it. Such a split could doom Romney's bill, which must be approved separately by a majority in both chambers. "If you revisit the actions of my senate colleagues in the constitutional convention, you will get a clear idea of what the likely response of my senate colleagues will be," said senate president Robert E. Travaglini (D-Boston), a sponsor of the amendment.
Romney filed a measure on Thursday asking the legislature for permission to directly approach the state's highest court to request a delay in the issuance of marriage licenses to same-sex couples, which is scheduled to begin May 17 under a landmark supreme judicial court ruling issued in November. The legislation would allow the Republican governor to circumvent the Democratic attorney general, who has said there is no legal basis for seeking a delay. "Fundamentally, I believe this is a decision which is so important, it should be made by the people," Romney said. "I would like the right to be able to represent the people and my own office before the courts in Massachusetts." Romney wants the high court to delay its decision by 2-1/2 years to allow voters the opportunity to weigh in on the recently approved constitutional amendment. Romney and others argue that they are posing a new question, regarding the legal chaos that would ensue, not the legality of gay marriage.
Atty. Gen. Tom Reilly rejected Romney's request to ask the court for a stay of its decision until November 2006, the earliest an antimarriage amendment could be put before voters. The attorney general, as the state's chief legal officer, determines legal policy for the state. The governor has no legal authority to go to court on behalf of the state. "The court's decision is the law of Massachusetts," Reilly said. "It is my job to uphold that law, and I will. The plaintiffs in this case played by the rules, and they won. Let's move on. Let's do our job." Legal experts could not recall any other instance in which a governor had sought to directly approach the court. "I think it is bad policy and bad precedent," said Jim Tierney, former attorney general of Maine. "It's bad policy to have different officials presenting different voices to the state's judiciary. In the long run it undermines the state's ability to present a consistent legal message to the courts."
House speaker Thomas M. Finneran, a Democrat who supported the amendment, said a hearing would be held on Romney's proposal, but he did not specify a date. If the measure is approved, Romney said he would appoint as his counsel retired supreme judicial court justice Joseph R. Nolan, a conservative who has called the court's November ruling legalizing gay marriage an "abomination." Acknowledging that victory is not assured, Romney said his administration was sending a letter Thursday to city and town clerks about regional informational meetings on how to handle gay marriages if they go forward.
Massachusetts Family Institute president Ron Crews argued that lawmakers should allow the people to be heard and let the governor make his request of the court. "I would hope that since there is strong support, not only in the house but in the state, to defend the traditional definition of marriage, then I would hope that this senate would strongly support the governor in his action and work with the house to pass this quickly," said Crews, a leading foe of same-sex marriage. Gay rights attorney Mary Bonauto, who represented seven same-sex couples in their landmark quest for marriage licenses, said Romney is exhibiting an "utter disrespect for the attorney general and the rule of law.... It's been the attorney general's job for over 200 years now to make all the tough legal calls. This is essentially a last ditch and hopeless effort by the governor to change the law and deny rights to gay and lesbian couples in the commonwealth."