(CNSNews.com) - Former Gov. Mike Huckabee (R-Ark.) says that Gov. Arnold Schwarzenegger (R-Calif.) and former Gov. Mitt Romney (R-Mass.) should not have complied with decisions by their state supreme courts that ordered legal recognition of same-sex marriages.

In an exclusive video interview with CNSNews.com, Huckabee said that, had he been in Romney’s shoes, he would not have used his executive power as governor to carry out the court’s unilateral declaration that the other branches of state government must certify same-sex marriages.

“You know, it’s interesting, the California decision as well as the Massachusetts decision, I don’t think should ever have been implemented by the governors, Schwarzenegger and Romney,” said Huckabee. “They were both decisions that the governors simply could have said the court has said that we have to do it, but let them enforce it. Because those were administrative decisions that had to put that in place and there was no mandate.”

“I would not have done that,” said Huckabee, who taped an appearance on CNSNews.com’s “Online with Terry Jeffrey” on August 15.

In a 4-3 decision issued on Nov. 18, 2003, the Massachusetts Supreme Judicial Court ruled that same-sex couples have a constitutional right to marry in Massachusetts. The court gave the state legislature until May 17, 2004 to enact legislation to allow such marriages to take place.

In the intervening time, the Massachusetts legislature did not enact a law codifying same-sex marriages. Before the May 17, 2004 deadline, however, then-Gov. Romney directed that the words “bride” and “groom” on Massachusetts marriage applications be changed to “Party A” and “Party B.”

Romney’s chief legal counsel, Daniel Winslow, told justices of the peace in Massachusetts that they should carry out the decision of the court and perform same-sex marriages or resign.

"My message was: 'You took an oath, and you don't have to agree or disagree with the law, you took an oath to uphold the law. Your only job is to follow the law,’” Winslow told Pete Winn of CNSNews.com in January. “We'll leave it to the courts to litigate what the law is, but once the courts have ruled, if you've taken an oath under the constitution, you have to follow your oath.”

Some justices of the peace did resign rather than use the “Party A” and “Party B” marriage applications to conclude same-sex marriages. One of these was Kathleen Harvey of Bellingham, Mass.

"I chose to resign," Harvey told Pete Winn of CNSNews.com in January. "I personally didn't feel that same-sex marriages were marriages. If they were civil unions, I don't think that would have bothered me, but I personally didn't feel they were marriages. I just didn't want to be officiating at one of those ceremonies."

In fact, after the court-ordered May 17, 2004 deadline, then-Gov. Romney himself—who opposes same-sex marriage--did not allow all same-sex marriages to go forward in Massachusetts. Citing a 1913 Massachusetts law that said the state should not carry out marriages of individuals from other states if those marriages would not be recognized in the individuals’ home states, Romney told clerks in Massachusetts not to issue marriage licenses to same-sex couples from out of state.

''Massachusetts should not become the Las Vegas of same-sex marriage,'' Romney told the New York Times in April 2004. ''We do not intend to export our marriage confusion to the entire nation.''

In January, when Pete Winn of CNSNews.com made inquiries to Romney’s presidential campaign about his handling of the state supreme court decision on marriage, the campaign responded with a statement from Kris Mineau of the Massachusetts Family Institute, who the campaign indicated "had worked with the governor" on the same-sex marriage issue.

"Within hours of the November 18, 2003, Supreme Judicial Court decision legalizing gay marriage, Governor Romney publicly denounced the court's ruling and affirmed traditional marriage," Mineau said. "And that was just the beginning of his support for preserving traditional marriage.”

"Governor Romney could not have been more public or vocal in his opposition to same-sex marriage during his entire tenure as governor," he said.

"He did not create same-sex marriage; that responsibility falls squarely on the shoulders of the Massachusetts Supreme Judicial Court, for which Chief Justice Margaret Marshall has been pleased to accept full credit and responsibility," Mineau said.

"The court's landmark ruling established same-sex marriage by judicially redefining the meaning of the word marriage," he said. "This final judicial order in the form of a declaratory judgment on May 17, 2004, was what created same-sex marriage in Massachusetts.

"Any administrative policies and procedures relative to solemnizing same-sex marriages were carried out only as a direct result of the judiciary's final action in Goodridge on May 17, 2004," he said. "Governor Romney is pro-individual and pro-traditional marriage . . . period."

When asked whether Romney’s decision to comply with his state supreme court’s order to allow same-sex marriages should disqualify him as a Republican vice-presidential nominee, Huckabee said: “Well, you know, I’ve not probably been an advocate for him in that position. And, you know, I am going to let him defend himself. And I don’t want to relive the primary. But I think that that was a very unfortunate position that he took in saying that, ‘Well, I can’t do anything about it.’ Oh, yes you can.”

Where’s the line? If the governor gets to pick and choose which rulings to enforce, we’re forever on the brink of a constitutional crisis. In fact, if Eisenhower had followed this advice, schools wouldn’t have been desegregated after Brown. What he’s suggesting, actually, in the name of empowering the people is making the judiciary nothing more than an arm of the executive. If that’s the government you want, okay, but in that case you might as well go the whole nine yards and abolish judicial review by constitutional amendment. Short of that, you’re not without options. The governor can campaign for an amendment to overturn an unpopular decision or, in states where judges are elected, to get them tossed out and replaced with ones who’ll vote the way the majority wants. Exit question: The Huck approach or the Romney approach?

 

[...]

 

If the executive doesn't follow the diktats of a court, the court dashes off writs of mandamus compelling lesser officials (like, justices of the peace, clerks at city halls) to act according to what they claim the law is. I believe these writs are issued upon pain of contempt.

This entire idea -- which I've seen bubbling up a lot, but only with regard to this one issue -- proves too much, as they say. If Romney could have just ignored the SJC's ruling, what stops any executive from doing this when it comes to any disagreement with the court?

There is no difference. Yes, hypothetically, any executive can provoke a constitutional crisis like this, with the courts ordering their bailiffs to arrest officials for contempt for not complying with writs of mandamus, and the executive ordering cops to arrest bailiffs trying to execute these arrests, and etc. Yes, it could be done.

But why the **** have people only thought of this with regard to Romney and this one decision? Why do they insist in this -- and only this -- situation Romney could have, and should have, faced down the (armed) agents of the court with his own armed agents?

Note that Huckabee's excuse for soliciting additional taxes -- any additional tax schemes; they were all "all right by me," as he said -- was that he was compelled by a state court decision to do so. (Actually, he wasn't quite, but let's pretend he was.)

How come you didn't just defy the courts yourself, Huck?

Why is it that Mitt Romney and only Mitt Romney has this special executive power to defy the courts?