Monday, May 17, 2004

Hadley Arkes on Gay Marriage & Massachusetts: "If it is countdown for marriage in Massachusetts, it is countdown also for Mitt Romney, whose political demise may be measured along the scale of moves he could have taken and the record of his receding, step by step, until he finally talked himself into doing nothing, or nothing much."

"Romney could have invoked the Massachusetts constitution (Part 2, ch. III, art. V): '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 had long ago followed the lead of Congress in restricting the power of judges."

"As the dispute over gay marriage wore on, it became clear that the legislature was having trouble enough forming a majority to affirm marriage between a man and a woman. It was too much to imagine that the politicians would be seized with the convictions of old that moved them to confront the judges, even when the court was usurping the powers of the legislature."

"Clerks in several places have made it known that they will not ask couples from other states whether they intend to move to Massachusetts [or if they're just coming to get married], and two district attorneys have already indicated that they will not prosecute clerks who violate the order of the governor."

"It hardly makes sense to speak of leaving this matter of marriage to people in the separate states if the judges, state or federal, are free to take matters out of the hands of the voters and the legislators they elect."

[We are witnessing the uncontested hijacking and subsequent unraveling of our government.]

"On the other hand, if the constitutional authority was really with the governor, to act for himself and the legislature, then it made the most profound difference that the governor flex that authority now himself: He 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."

"By an act of that kind he would have forced a change in the focus of the litigation: The task would fall then to the court to entertain challenges to the actions of the governor. If the judges summoned the governor to appear before them, there would no longer be any quibble over the question of whether the governor has standing before the court, or whether he would appear. And the court could be compelled now to face precisely the issue that the judges had skirted: whether the majority of four had themselves violated the constitution of Massachusetts."

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