May 17, 2004,
Since 12 A.M. this morning, clerks in liberal enclaves in Massachusetts have been issuing marriage licenses for couples of the same sex and perhaps even pronouncing them married. All of this proceeds by a schedule handed down by the "Gang of Four," the slim majority of the Supreme Judicial Court of Massachusetts that struck down the traditional laws of marriage last November. The four judges, speaking for the Court, gave the legislature six months to alter the laws, or come up with some accommodation, which would permit the marriage of gays and lesbians. The state senate tried to float an arrangement for "civil unions," but the court, in an advisory opinion, rejected it.
The legislature, convened as a constitutional convention, labored to produce a constitutional amendment that would confine marriage to a man and a woman. After prolonged sessions and strains, the convention produced an amendment that contains, at once, an affirmation of traditional marriage and a provision for "civil unions," which gives gays and lesbians every right and privilege of marriage except for the name itself. That is a formula likely to explode the whole device. As the judges in Massachusetts revealed, that kind of combination will be read as invidious discrimination, and so a federal judge would find a ready lever for striking down the constitutional amendment in Massachusetts, even if it eventually passes.
EXECUTIVE FAILURETo review this short history is to put to the side the dramatic abuse of power by the Supreme Court of Massachusetts, and put in the foreground the fecklessness of the political class in Massachusetts, which showed, at every turn, either a want of conviction or a want of nerve. That the legislature would prove bumbling, and too crippled by its own divisions to work out a coherent response, is to say that a plural body reflected the deep divisions of opinion in a liberal state. The deeper failure must go to the man who stood as governor, holding the levers of the executive. And 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.
Against a plural body like a legislature, a single executive could act as force to impart focus and energy. But as the legislators splintered along several lines, Romney preserved a decorous silence in public, while he sought counsel, and mulled over schemes, in private. The range of things he could do in combination with the legislature was considerable if there was a will to do them.
THE LINCOLNIAN MOVEThe most dramatic and consequential move was to follow the compelling argument set forth by Abraham Lincoln as he resisted the opinion of the Supreme Court in the Dred Scott case. Lincoln insisted that he and his party would not form a mob to set Dred Scott free once the Court had confirmed him to remain in slavery. Lincoln would respect the decision of the Court with regard to the litigants in that case. But he would not allow the public policy of the whole country to be formed, as he said, by two parties "in ordinary litigation...in personal actions," combined with just a bare majority of the Court. Lincoln would accept the holding for the parties in the case, but he would not accept the principle articulated by the Court unless he was finally persuaded of the rightness of that principle. In the Goodridge case in Massachusetts, Romney could have announced that he would respect the decision for the plaintiffs allied in the case, but he might have pointed out that the case was not a "class action." He could have insisted then that clerks should issue licenses of marriage only to couples who have come through comparable litigation and received a comparable order from a court.
Clerks in some of the counties would have been resistant, but 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."
Romney could have pointed out here that the Supreme Judicial Court had actually violated the constitution by taking jurisdiction in a class of cases that the constitution had explicitly withheld from the courts. But as Romney contemplated his moves here, he could feel the drag even on the part of conservative lawyers. Lincoln's argument, they thought, was no longer widely understood, and any challenge to the court in this way was likely to set off tremors, even in their own circles. In that moment of holding back, it became clear that even conservative lawyers had come to incorporate, and accept, the premises that gave to the courts a position of supremacy in our constitutional schemes.
The conservative lawyers argued that new plaintiffs would form a class and seek an injunction from the court to enforce the holding in the Goodridge case. But they seemed to forget that the legislature has the authority to shape and define the power to issue injunctions. Massachusetts had long ago followed the lead of Congress in restricting the power of judges to intervene with injunctions to break strikes mounted by labor unions. And yet, 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.
THE REQUEST OF A STAYThe legislature had gone through the first stage of enacting a constitutional amendment, but a second vote was still necessary, and an amendment could not go into effect until 2006. There was the prospect, though, of many couples caught in the winds married for two years, and then no longer married and that prospect counseled a certain stay in the judgment of the court. As a matter of high prudence, and a "decent respect" for the opinions of citizens in a democracy, it would have been decorous for the court to stay its judgment until the people at large were given the chance to vote on their laws on marriage. Who would make that move before the high court? Under the laws of Massachusetts, the independently elected attorney general is in the position to introduce such a measure. But the attorney general in this case was unwilling to make that move. Faced with his resistance, the governor sought from the legislature the authority to give the mandate to another counsel and seek the kind of stay that would preserve, after all, the possibility of enacting the measure passed by this legislature. But the legislators seemed to feel that they had "given already at the office": To their minds, they had exerted themselves enough in passing the amendment, and they had angered about as many people as they figured they could afford to anger.
In such a case, the governor could go to the court on his own, in a pro se action, representing himself. But while Governor Romney went to law school, he did not make his career in litigation. He seemed to be struck with a certain diffidence now, a fear of appearing fumbling, especially if he were suddenly opposed by an attorney general experienced in litigation and opposed to his course of action. The governor could have gone in, of course, with the attendance of aides; and if the cause was as important as he had professed to believe, he should not have been put off by vanity, or by a fear of appearing less than commanding. Whether he was artful or not, the matter would indeed be before the court, and it would have to be addressed.
But the governor receded once again. He had been fueled, in his moral concern, by his faith as a Mormon, and yet that background became now but another motive for receding. He did not wish to be accused of imposing his "beliefs" as public policy. And once again, in a reflex now familiar in our politics, political men bearing "beliefs" did not show the confidence that their beliefs were supported by "reasons" which could be explained and defended in a public forum.
Romney has now tried to put a brave face on things: If the legislature was not inclined to defend its own policy in the courts, he would at least try to insure that the new form of marriage in Massachusetts would not spill over into the rest of the country. He drew from dusty files a statute of 1913, which forbade registrars from issuing licenses of marriage to couples from other states in unions that would not be permitted under the laws of their states.
THE FEDERALIST SOLUTION?But as of this writing, it is not clear that this stance of the governor will hold. Clerks in several places have made it known that they will not ask couples from other states whether they intend to move to Massachusetts, and two district attorneys have already indicated that they will not prosecute clerks who violate the order of the governor. Jonathan Rauch, a proponent of gay marriage, has argued that the federalist solution should be tried seriously here, with gay and lesbian marriage confined to Massachusetts or a few other states. But the news already brings word of couples from New York planning their marriages in Massachusetts, and one couple from Massachusetts about to transfer residence to Arizona. It is virtually certain that some of these couples will move then into a federal court, invoking the Full Faith and Credit Clause and claiming that their marriage should be accredited. They will pose a challenge to the Defense of Marriage Act (1996), which sought to shore up the authority of the states to refuse to accept these marriages. Rauch is entirely sincere, but it should be clear that the sole purpose of these couples, visiting from other states, is to bring the issue into a federal court and invoke, for their cause, the federal Constitution. As soon as that move takes place, the "federalist" solution has clearly ended. Whatever Jonathan Rauch's own prescription here, it is clear that the activists are not governed by his plea for "federalism."
But, of course, the federalist solution would soon be rendered hollow if judges in the separate states simply follow the path of the judges in Massachusetts. 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. That sense of things moved a small group of legislators in Massachusetts to make one more try before the Supreme Judicial Court: The legislators invoked the constitution of Massachusetts and reminded the judges that their own court, in cases old and recent, had affirmed the point that questions of "marriage, divorce, and alimony" lay outside the province of the courts, unless they were explicitly assigned by the legislature. And until the legislature settles a policy, the governor and his council were given the primary authority to deal with this class of questions.
THE MISSING GOVERNORThe court listened and then dismissed the case, claiming that the legislators lacked the standing to bring the suit. But the form of the challenge pointed once again to the missing governor. If legislators had a stake, as legislators, in this kind of case, they could press their interest most aptly by acting through the legislature itself to defend and reclaim the rightful authority of the legislature. The very action of presenting their plea before the court implicitly confirmed the dominant authority of the court in settling this question. 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. Faced with a tension of that kind, it was even conceivable that one of the wavering judges of the four might peel away, and in peeling away, leave the issue back where it belonged in the political arena, with the governor and the legislators.
Is it now too late? That isn't altogether clear. Today has become the decisive date only because of the holding of the Supreme Judicial Court. But this argument over the error of the court, or the wrongful taking of jurisdiction, does not expire on May 17. That argument is still open, which means that it could be plausible for the governor to make that move at any time. But why should he make that move when receding has now become his signature tune? For one thing, he has now put himself out on the limb with his avowal to enforce the law that restricts visitors coming in to marry from other states. He will find himself now in a tangle of arguments and litigation, of orders given and ignored, of postures taken with no discernible effect. Through the din a certain clarity may finally break through on these rudimentary points: Why should he subject himself to such embarrassment in arguing over a law so uncertain in its character and its operation? If he were going to open himself to controversy and litigation, why not finally take his stand on the constitution itself, where his own authority on matters of marriage is clearly spelled out? And in taking his stand on the constitutional question, he would move to higher ground, with the burden of challenge shifted to the courts. As the arguments and recriminations fly freely about, he can in effect blow the whistle, invoke his authority, shift the focus dramatically, and make it clear to the relief of the public that a grownup is finally in charge.
It might have been a striking appeal to the south and west in the Republican party, that there was a northern governor, aligned with them in their moral perspectives, and with the resolution to act. If Romney recedes yet again, he confirms a rather different sense of his party: that the Republicans are ever more comfortable in talking about taxes but lose their confidence to speak when it comes to addressing the questions of deepest moral consequence, the questions that establish the terms of principle on which we live.
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.