Gay Marriage Hypocrisy?

Andrew Sullivan and Michael Demmons smell hypocrisy, noting that opponents of gay marriage aren’t raising nearly the fuss about Mitt Romney’s attempts to get his state supreme court’s ruling overturned as they did about San Francisco’s mayor marrying same-sex couples in blatant violation of the law.

Michael is particularly upset that Romney is doing this even though the state attorney general refuses to take it to court. In Massachussets, as in many (most?) states,the AG doesn’t work for the Governor but is in fact elected separately. In this case, they’re of different political parties. I don’t see any reason the governor can’t go to court on his own, since he’s clearly on the side of the majority of his constituents in trying to uphold a law that was struck down by the judiciary. Indeed, trying to fight something in court strikes me as perfectly within the boundary of the system, as opposed to openly flouting black letter legislation and daring one’s opponents to go to court to stop you.

Now, if Romney loses in court or can’t get the U.S. Supreme Court to take the case, then he’s obligated to enforce the ruling of his state supreme court. If he decides to do otherwise, I suspect the condemnations will be forthcoming.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. I didn’t realize you were going to post on this, so I responded to you over at Discount Blogger as follows:

    “Yet, when we (read: gay people) try to fight something in court and win, the judges are accused of judicial activism.

    For one group of people, it is perfectly within the boundaries of the system. For the other, it’s an end-run around the people.

    Go figure.”

  2. James Joyner says:

    The courts have overturned the will of the electorate, as expressed by their legislatures. So, they’ve either got to accept the results of judicial activism or press on. The only recourse the representatives have now is to keep fighting it in the courts or pass a constitutional amendment. They’re working on the latter but the clock is against them.

  3. Now, if Romney loses in court or can’t get the U.S. Supreme Court to take the case, then he’s obligated to enforce the ruling of his state supreme court. If he decides to do otherwise, I suspect the condemnations will be forthcoming.

    I don’t. In fact, I’ll put a $10 donation to OTB on the line that says major sites like the WSJ, Taranto, and National Review will not condemn him if he refuses to abide by the Court’s decisions. In fact, they’ll probably hail him as a hero.

    The gauntlet is thrown!!! 🙂

  4. Oh, and that “bet” comes with no reciprocation implied. Just a gift from me to you if you’re correct.

  5. James Joyner says:

    Heh. Could be,I guess. Clearly, there are those who are willing to sacrifice principle for outcome. I’m fine with the outcome of the Mass. situation if the high court’s ruling stands; I just don’t like the process.

  6. Ravi Nanavati says:

    The reason the governor can’t go to court without the cooperation of the Attorney General is that it is a violation of Massachusetts state law:
    The newspaper summary of this is that the Attorney General (or someone appointed by him) must represent the Commonwealth in court.

    Romney actually had a fairly long flailing period where he was looking like he was going to defy the law by either going to court without the AG or refusing to make the changes required to marriage licenses. My favorite idea (of the ones I heard being considered) was, of course, the most politically disastrous (though legal) one – proposing a bill that repealed marriage entirely in MA until the amendment was voted on.

    In any case, I imagine the spectacle of all his alternatives (and the prospect of losing a direct confrontation with the SJC) is what led Romney to the “one-time-exception” bill (allowing him to petition the SJC) approach. State legislators have had their fill of controversy, though, and the bill looks DoA (and I think it’s not clear that the ordinary process of hearings, readings, etc. would conclude before May 17th at this point anyway).

    The other part of the issue is that “everyone knows” May 17th is the real battle. It was almost impossible to get the amendment through the current legislature (because neither of the 3 camps – no marriage or civil unions, no marriage but civil unions required and full gay marriage) has a majority. As I recall, the amendment that finally advanced only survived because of the support of gay marriage supporters (who were using it to kill amendments that would not have required civil unions).

    Imagine what the situation will be like in the next legislative session – when same-sex couples and their children will be pleading with the legistature not to “break up their family”…