Tuesday, January 10, 2012



Former Vatican Ambassadors, pro-family advocates misrepresent Romney record on defense of marriage

January 10, 2012

In our post yesterday, “Pro-family advocates misrepresent Romney’s record on life, marriage,” we talked about how the Boston Pilot had erred by publishing an endorsement of a political candidate on the front page of the archdiocesan newspaper (“Pro-family advocates defend Romney’s record on life, marriage.”)  Furthermore, the letter referenced in the article, and signed by former Vatican embassadors, Mary Ann Glendon and Ray Flynn, and former Mass Catholic Conference head, Gerry
D’Avolio, contains a series of incorrect statements or flat-out misrepresentations of facts and reality.

Yesterday we talked about the misrepresentations regarding the record of former Gov. Romney on emergency contraception. Today we discuss the misrepresentations on the issue of “same-sex marriage.”  BCI admits we are a bit “over our skis” on this one, and we are relying on information provided to us from a number of sources and legal experts with permission to republish their information. Our point here is that The Boston Pilot published information that was inaccurate.

But in addition, it now appears to BCI that our own Catholic lawyers advising the archdiocese at the time on defense of marriage gave faulty advice that contributed to a surrender on this battle rather than a legitimate constitutional fight. We are assembling rather conclusive proof of that. Some of those lawyers are also now apparently giving political air-cover to Gov. Romney in his campaign instead of speaking the truth.

Among many issues with the letter is that the signatories said Romney “staunchly defended traditional marriage”, claimed he did not issue marriage licenses to same-sex couples, and “worked hard to overturn ‘same-sex marriage’ in the Commonwealth with substantial results.”
These issues could take days and many posts to cover, so BCI must take an abbreviated path and will cover this with an addendum to the main post (so come back to read more later).  First, some background and then an explanation of what is inaccurate in the letter from Prof. Glendon, Ray Flynn and others.

The Goodridge Ruling

November 18, 2003: The Massachusetts Supreme Judicial Court ruled 4 to 3 in Goodridge v. Department of Public Health that the state’s ban on same-sex marriage was unconstitutional.  The court specified that the original marriage law banned homosexuals from marrying partners of the same sex as themselves. This law was left intact by the Goodridge ruling (“Here, no one argues that striking down the marriage laws is an appropriate form of relief.”)  The court gave the Massachusetts Legislature 180 days in which to “take such action as it may deem appropriate” following its November 18, 2003 ruling.

What the Massachusetts Constitution Says

The first place that “Boston Lawyer” suggested we look is to the Massachusetts Constitution, written in 1870 and the oldest written, still-governing constitution in the world, with clear separation of powers. Gov. Romney took a sworn oath to uphold. It says:

Part the First
Article X: “…the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent.”
Article XX. The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.
Article XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.
Chapter 3, Article V.
Article 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.

“Boston lawyer” said, “The simplest way for people to understand this is to just look at Chapter 3, Article V–anything having to do with marriage according to the Mass Constitution separation of powers is the purview of Governor and the Legislature–the SJC is banned by the state constitution from ruling on marriage.”

Articles XX and XXX of the constitution say the courts have no power to suspend laws or change the laws.  Article X says the people of the commonwealth are only bound by laws passed by the people they elect to the legislative branch of government, not judges.

Several lawyers and experts on this topic say that if Mitt Romney had just followed the Massachusetts Constitution–as he took an oath to do–he would have said two things–the court had no constitutional authority to rule on marriage, and only the legislature could change the laws. Since the elected Legislature never approved changes in the law to permit and legalize “gay marriage,” the Romney administration–Romney himself, his general counsel and Department of Health under his authority–had a constitutional duty to uphold the law on the books. Thus, they should not have directed town clerks to issue “same-sex marriage licenses,” and the people of the commonwealth should never have been bound by a supposed new “law” that really was never a law at all, and is not even a law today, despite popular misconception.

Here is the bitter irony and grave tragedy as we understand it.  Even the attorney for the gay and lesbian couples in the Goodridge case, Mary Bonauto, acknowledged in November 2003 that the legislature had to act to change the marriage laws before “same-sex marriages” were permitted, but it was Gov. Romney and our own Catholic lawyers who said that was not necessary!
“While seen as a victory for gay rights advocates, the decision itself does not make it immediately possible for seven same-sex couples who sued the state to receive marriage licenses since the court left the details of the issue to the legislature.
Attorney Mary Bonauto, who represented the seven gay couples who sued the state, said the only task the court assigned to state lawmakers is to come up with changes in state law that will allow gay couples to marry by the end of the 180-day period.”
As BCI understands it, an undisputed fact is that those changes to state law never occurred. Lawyers tell BCI that the ruling was not somehow “self-executing” as emails from some of the Catholic lawyers leaked to BCI suggest they believed and still believe today. Consider the following:
“He [Romney] placed the blame for the confusion on the Legislature, which has yet to follow a directive from the SJC to change the state’s marriage laws to reflect the legalization of same-sex matrimony.” ‘‘I believe the reason that the court gave 180 days to the Legislature was to allow the Legislature the chance to look through the laws developed over the centuries and see how they should be adjusted or clarified for purposes of same-sex marriage; the Legislature didn’t do that,’’ Romney said. Senator Bruce E. Tarr (R) of Gloucester, said he believes the Legislature will ultimately pass bills that will insert gender-neutral language into the state’s marriage laws in time for the May 17 deadline. ‘‘No one should interpret inaction thus far with the idea that no action is forthcoming,’’ he said
But, no action was forthcoming.  No laws ever changed. Yet Romney proceeded to order issuance of same-sex marriage licenses anyway in mid-May of 2004.  As BCI sees it, this is perhaps one of the most impactful “head-fakes” on society of all time–one which continues to this day.
This is not just the opinion of BCI and people who have fed us information.  A multitude of other sources, including constitutional law experts agree.

This blog reports the following from Mat Staver, Founder and Chairman of Liberty Counsel:
… I litigated in Massachusetts by filing a suit in federal court to prevent the implementation of same-sex marriage. Due to federalism issues with the federal courts being asked to block a state court action, the federal courts were constrained not to get involved.
Having spent considerable time reviewing the Massachusetts Constitution, drafted by John Adams, I can say that the Massachusetts Constitution is unique with respect to marriage and domestic relations by vesting the authority over marriage to the Legislature. The provision is explicitly set forth in the Massachusetts Constitution. The Massachusetts Supreme Judicial Court ruled that the Legislature should act within a certain time to implement same-sex marriage, but the Legislature refused to act. Yet, Gov. Romney on his own went ahead of the Legislature and forced the implementation of same-sex marriage. Not only was he not required to implement same-sex marriage, the Massachusetts Constitution gave him no authority to do so. Gov. Romney should not have acted until the Legislature acted as that is the body vested by the Massachusetts Constitution with authority over marriage.
Staver is also the dean of Liberty University Law School. Staver is a trustee of the Supreme Court Historical Society. He’s written 11 books.

Dr. Herb Titus was the founding dean of the School of Public Policy at Regent University, and later served as the founding dean of Regent Law School. Before that he studied under Dr. Francis Schaeffer, and graduated from Harvard Law School. Titus has worked with the U.S. Justice Department, and is admitted to practice before the U.S. Supreme Court.
Here is what Dr. Titus said on this matter:
“Rick Santorum challenged Mitt Romney to justify the former Massachusetts Governor’s decision to implement the Supreme Judicial Court of Massachusetts ruling that declared that the exclusion of otherwise qualified same-sex couples from civil marriage violated the state constitution.  
After the debate, Mr. Romney stated to Mr. Santorum that he did all that he legally could to stop the implementation of the court’s decision before he exercised his duty as Governor to enforce the court’s decision requiring local officials to issue marriage licenses to same-sex couples. He issued a challenge to Mr. Santorum to find any qualified legal authority that would not agree with him. I have been asked to meet that challenge.
I am a graduate of the Harvard Law School. I am an active member of the Virginia bar and the bar of a number of federal courts, including the United States Supreme Court. As a professor of constitutional law for nearly 30 years in four different ABA-approved law schools, and as a practicing lawyer, I have written a number of scholarly articles and legal briefs on a variety of constitutional subjects; including the nature of legislative, executive and judicial powers and the constitutional separation of those powers. 
I am generally familiar with the Massachusetts Constitution, and especially familiar with that constitution’s provision dictating that no department shall exercise the powers that belong to either of the other two departments “to the end it may be a government of laws and not of men.”
As Governor, Mr. Romney has claimed that he had no choice but to obey the Supreme Judicial Court’s opinion.  This claim is false for several reasons.
First, Mr. Romney was not a party to the case. Only parties to a case are bound to obey a court order. As President Abraham Lincoln said in support of his refusal to enforce the United States Supreme Court’s infamous Dred Scott case – the nation’s policy regarding slavery was not determined by a court opinion, even by the highest court of the land.  Likewise, the Commonwealth of Massachusetts’ policy regarding marriage may not be determined by the Supreme Judicial Court, the State’s highest court.
Second, the Supreme Judicial Court did not order any party to do anything.  Rather, it issued only a declaration that, in its opinion, excluding otherwise qualified same-sex couples access to civil marriage was unconstitutional. Thus, even the Massachusetts Department of Health, which was a party to the case, was not ordered to do anything.
Third, the Massachusetts Board of Health was not authorized by statute to issue marriage licenses. That was a job for Justices of the Peace and town clerks. The only task assigned by the Legislature to the Board of Health was to record the marriage license; it had no power to issue them even to heterosexual couples. So the Department of Health, the only defendant in the case, could not legally have complied with an order to issue marriage licenses to same-sex couples.
Fourth, if the court were to order the Department of Health to issue marriage licenses to same-sex couples, then Mr. Romney’s duty as governor would have been to instruct the Department that it had no authority to do what the court ordered. Nor could the court confer such authority, such an authorization being in nature a legislative, not a judicial, act.
Fifth, the decision whether to implement the Supreme Judicial Court’s opinion was, as the court itself acknowledged, for “the Legislature to take such action as it may deem appropriate in light of [the court’s] opinion.” By the very terms of the order, the Massachusetts legislature had discretion to do nothing.
Sixth, because the legislature did nothing, Mr. Romney had no power to act to implement the court decision. By ordering justices of the peace, town clerks, and other officials authorized to issue marriage licenses to issue marriage licenses to same-sex couples, Mr. Romney unconstitutionally usurped legislative power, a power denied him by the Massachusetts constitution that separated the three kinds of powers into three different departments.
Apparently both Gov. Romney and the signatories of this letter are misrepresenting what he did and did not do to protect marriage. Even worse is that a surrender of major proportion apparently happened under the watch of our own Catholic lawyers advising the Boston Archdiocese, and some of these lawyers apparently continue  to propagate misconceptions today for whatever reason, rather than speaking the truth.
BCI cares about the truth and believes faithful Catholics are entitled to hear that from our leaders.
We must pause here for now. More coming later.

Pro-family advocates misrepresent Romney’s record on life, marriage: Part 1

January 9, 2012
The Boston Pilot has made yet another mistake–this time by publishing an endorsement of a political candidate on the front page of the archdiocesan paper, and by not fact-checking the piece. A careful fact-check would have revealed a series of incorrect statements or flat-out misrepresentations of facts and reality.  If there is one thing that gets the blood boiling here at BCI, it is when people say or publish things that are objectively deceptive.  That is the case here.
BCI is not getting into politics and preferred to not even comment on this issue. However, we have been hit by a number of messages and complaints from readers since this was published. These include Catholic lawyers and pro-life, pro-family activists who provided BCI with extensive documentation.  Since the official archdiocesan newspaper, The Boston Pilot, chose to publish the Catholic News Agency story on the front page, and since the story is laden with false information, BCI feels compelled to correct the misrepresentations.  This will take us several posts.
Here is a link to the CNA story from the front page of The Boston Pilot: “Pro-family advocates defend Romney’s record on life, marriage.”
A group of nine individuals from pro-family organizations in Massachusetts have written an open letter defending Mitt Romney’s record of protecting marriage, promoting a culture of life and supporting religious freedom during his time as governor of the state. The Dec. 30 letter attempts to “set the record straight” after Romney’s commitment to life and marriage was questioned in media reports.
Among the signatories were Raymond L. Flynn and Mary Ann Glendon, both former U.S. Ambassadors to the Holy See, as well as former executive director of the Massachusetts Catholic Conference, Gerald D. D’Avolio.
First problem: the letter itself reads like a political endorsement: Essentially, “Ray, Mary Ann, Gerry, et al say Mitt Romney is a good guy and defend his record.”  It has no place in the archdiocesan newspaper, let alone on the front page.  If “Msgr. G. says President Obama is a good guy,” does that belong on the front page of The Pilot as well so that everyone gets equal ink?  The Catholic Church should be stating the views of the Catholic Church on certain issues and can distribute voter guides that list the publicly-stated positions of various candidates on a number of issues of importance to the Catholic Church, but the Church cannot endorse political candidates.  In this case, The Pilot did not specifically endorse Mitt Romney, but it published a letter through with others gave their implicit endorsement. They should not have published this at all.
Second problem: Neither the CNA article nor The Pilot disclosed the affiliations of several of the signatories with the Romney campaign. For example, Mary Ann Glendon is a chairperson of the Romney Justice Advisory Committee, announced by his campaign on August 2, 2011.
The Chairpersons of the Advisory Committee – Judge Robert Bork, Professor Mary Ann Glendon, and Richard Wiley – issued a joint statement saying, “…We fully support Mitt Romney’s campaign and look forward to working with other members of the committee as we advise him on today’s pressing legal issues.”
Kristian Mineau, one of the signatories, is president of the Massachusetts Family Institute.  BCI was informed of this 2007 NY Times report that discusses how MFI received a $10,000 donation from Mitt Romney. Coincidentally, not long afterwards MFI stopped criticizing Romney as “taking liberal stands during his first years as governor,” and instead “Mr. Mineau sought to enlist other Massachusetts social conservatives in signing an open letter supporting the governor.”  Romney also is reported to have given $15,000 to Mass Citizens for Life.  Coincidentally, another signatory, Joseph Reilly, is former Chairman of the Board, Massachusetts Citizens for Life and husband of Evelyn Reilly, public policy director for MFI. During most of his tenure as governor, Massachusetts Citizens for Life was critical of Romney, but in the months after receiving the donation, by coincidence, its officials issued favorable statements about his record.
If people and their organizations are going to accept money from a political candidate or serve as chairpersons of their political campaign sub-committees, their affiliations should be disclosed– and furthermore, their endorsements should not be published by a Catholic archdiocesan newspaper.
Third problem: a lot of what is in the actual letter itself that claims to “set the record straight” is in fact incorrect and misleading.  BCI will fact-check what Romney did or did not do around three issues–emergency contraception (the “morning after pill”) forced on Catholic hospitals, Catholic Charities being mandated to allow adoption by gay couples, and “gay marriage.”  Hold onto your seats.
We start with emergency contraception in this post.
The letter says:
“Some press accounts and bloggers have described Governor Romney in terms we neither have observed nor can we accept. To the contrary, we, who have been fighting here for the values you also hold, are indebted to him and his responsive staff in demonstrating solid social conservative credentials by undertaking the following actions here in Massachusetts.
Affirmed the culture of life. Governor Romney vetoed bills to provide access to the so-called “morning-after pill,” which is an abortifacient…
Yes, in 2005 Romney vetoed a bill to provide access to the so-called “morning-after-pill,” but what the signatories and The Boston Pilot fail to tell people is that a) Romney had publicly claimed the bill did not apply to private religious hospitals, and b) he reversed his own July 2005 veto against abortifacients by signing an October bill seeking a federal waiver to expand distribution of Plan B abortifacients.  Even more troublesome is that shortly after Romney vetoed the requirement that hospitals offer Plan B to rape victims, Romney reversed himself and issued an executive order on December 8, 2005, against the legal opinion of his own State Department of Public Health, instructing all Catholic hospitals and others to provide the chemical Plan B “morning after pill” to rape victims!  Surely, the letter signatories know this.
With help from several readers who asked to remain anonymous but gave permission for us to use their ideas and content, BCI has reconstructed the sequence:
1975.  Massachusetts statute passed which allowed private hospitals to opt out of abortion, sterilization, and contraception.
Prior to July 25, 2005, when Gov. Romney vetoed the emergency contraception bill, the legislation had already been modified to expressly remove any amendments which would NOT allow that 1975 statute to prevail. (Although the House had added an amendment to S. 2073 that specifically applied the 1975 statute protections and the Senate had offered its own amendment stating the new bill superceded the 1975 statute, in the end both amendments were taken out, so the 1975 law prevailed and remains in force).  See this July 2005 Mass Catholic Conference Notes from the Hill from when Mr. D’Avolio was Exec Director of MCC, but since removed from the MCC website.  Even if the 1975 statute were not in place, Article II of the Massachusetts Constitution still guarantees freedom to practice religion without interference by the government.
December 7, 2005: In view of the 1975 statute and the removal of any provision in the 2005 legislation that impacted that 1975 conscience exemption, the Dept of Public Health wrote the regulations to exclude Catholic and private hospitals.  This was announced on December 7, 2005 and described in this Boston Globe article, “Private hospitals exempt on pill law“:
“The state Department of Public Health has determined that Catholic and other privately-run hospitals in Massachusetts can opt out of giving the morning-after pill to rape victims because of religious or moral objections, despite a new law that requires all hospitals who treat such victims to provide them with emergency contraception…
The ruling, which the department plans to outline to hospital CEOs in a letter this week, says the new law applies to all hospitals but does not nullify a statute passed years ago that says privately-run hospitals cannot be forced to provide abortions or contraception.
”We feel very clearly that the two laws don’t cancel each other out and basically work in harmony with each other,” Paul Cote Jr., commissioner of the Department of Public Health, said in an interview yesterday.
The Department of Public Health decision is welcome news for Catholic hospitals who do not provide emergency contraception and feared that the new law would make them do so”
But, pro-abortion groups started protesting. Then Lt. Governor Kerry Healey objected (her pro-choice views on this issue were long a matter of the public record). Apparently, Romney’s own staff was waffling. His legal counsel, Mark Nielson, claimed the new law superseded the preexisting conscience protection statute, even though there was nothing in the bill to indicate this, and Nielson was claiming the bill said something the authors of the bill had purposely left out. (Coincidentally, Nielsen had run for Congress in 2000 as a pro-abortion candidate and received over $7K from pro-abortion groups).  It appears Romney himself was not sure if he was going to run for re-election as Governor (in which case he needed to be a “moderate”) or he was going to run for President (in which case he needed to be a “conservative”).  Listen to this audio clip for the story.
Romney did not listen to the opinions of the Catholic Church, the State Health Commissioner, his own health department, or the intent of the bill writers. Instead, he retreated.
December 9, 2005: Romney announced he was overruling the DPH (but for some reason, did not announce he was  also overruling the Massachusetts Constitution). See this Boston Globe article, “(“Romney says no hospitals are exempt from pill law“):
“Governor Mitt Romney reversed course on the state’s new emergency contraception law yesterday, saying that all hospitals in the state will be obligated to provide the morning-after pill to rape victims. The decision overturns a ruling made public this week by the state Department of Public Health that privately run hospitals could opt out of the requirement if they objected on moral or religious  grounds.”
Lifesite News reported at the time, “Romney Does Flip-Flop and Forces Catholic Hospitals to Distribute Morning-After-Pill”:
In a shocking turn-around, Massachusetts’s governor Mitt Romney announced yesterday that Roman Catholic and other private hospitals in the state will be forced to offer emergency contraception to sexual assault victims under new state legislation, regardless of the hospitals’ moral position on the issue.
The Republican governor had earlier defended the right of hospitals to avoid dispensing the “morning-after pill” on the grounds of moral dissent. The Boston Globe reported that Romney’s flip on the issue came after his legal counsel, Mark D. Nielsen, concluded Wednesday that the new law supersedes a preexisting statute related to the abortifacient pill.
A constitutional law expert advising BCI says that the LEGISLATIVE INTENT was clearly to allow the 1975 statute to prevail.  The formulation of the regulations is supposed to follow the legislative intent.  Romney actually violated the law and his oath of office by NOT going with the legislative intent, and overruling the legislative intent (as well as the Constitution).
But it gets worse.  It was not merely a legal interpretation by the legal counsel to Romney. He  said he personally thought it was the “right thing” for hospitals to provide access to emergency contraception for any rape victims. See this Dec 9, 2005 AP report:
Romney: Catholic hospitals not exempt from offering emergency contraception
By GLEN JOHNSON, Associated Press writer
BOSTON –Facing opposition from women, the Democratic Party and even his own running mate, Gov. Mitt Romney abandoned plans yesterday to exempt religious and other private hospitals from a new law requiring them to dispense emergency contraception to rape victims.The governor had initially backed regulations proposed earlier this week by his Department of Public Health, which said the new law conflicts with an older law barring the state from forcing private hospitals to dispense contraceptive devices or information.
The interpretation would have allowed hospitals operated by the Roman Catholic Church, which opposes abortion, to forego compliance with the new regulation. Opponents accused Romney, a Republican considering running for president in 2008, of trying to assuage social conservatives.
Despite defending the Health Department regulations as  late as Wednesday, Romney opened a news conference yesterday by declaring that a fresh analysis by his legal counsel concluded the new law supersedes the old law, and that all hospitals must be required to offer the so-called morning-after pill.
“On that basis I have instructed the Department of Public Health to follow the conclusion of my own legal counsel and to adopt that sounder view,” Romney said. “I think, in my personal view, it’s the right thing for hospitals to provide  information and access to emergency contraception to anyone who is a  victim of rape,” he added.
The Boston Pilot, the signatories and the archdiocese should have known this. It was also reported in this Boston Pilot article. If the signatories were oblivious to this, then they should retract their letter and also be more careful in the future with fact-checking anything they sign their name to.
BCI must ask the question, how can people like the signatories of this open letter claim to be “setting the record straight” when they, in reality, neglect to share the critical facts and objective information? Instead of “setting the record straight” they are obfuscating the record. The Pilot served to advance this misrepresentation by publishing the CNA article.
BCI will tackle the other issues in separate posts.
ps. In the meantime, if anyone out there is familiar with the constitutional issues around the SJC decision on gay marriage–and in particular, the instructions and training by then-Gov. Romney and his legal counsel to town clerks to issue marriage licenses, please drop us an email.

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