Gavin Newsom’s move in San Francisco to issue same-sex marriage licenses is turning out to be quite interesting – it’s not every day that we get to watch a debate over the constitutionality of a statute driven by the calculated civil disobedience of a public official.
Since I posted my previous comments on the subject, at least two readers have picked up on my statement that Newsom is technically violating his oath of office. I still believe this is the case, and I think it raises interesting questions. Fried Man (although I don’t necessarily agree with his politics) makes a good point – if we applaud Newsom’s civil disobedience, how can we condemn Alabama judge Roy Moore’s refusal to obey the courts and remove his Ten Commandments statue? (Population:One and Kalblog also discuss the parallel between the two situations as well).
This is a fascinating point, because situations like this force me to think about the consistency of my beliefs. If I believe that our elected officials are responsible for “upholding the law,” but then go on to approve of Gavin Newsom and disapprove of Roy Moore – because I believe in Newsom’s stance but not Moore’s – then I’m inconsistent. Fried Man would (rightly) call this hypocrisy.
The problem here is not the civil disobedience. CD is an effective form of public protest, and when private individuals engage in it, they do so with the knowledge that they may be subject to consequences for breaking specific laws (e.g., trespassing, etc). That’s an individual decision, and as such, it doesn’t have implications for our constitutional system.
Refusal by elected officials to uphold laws, however they feel about those laws, does have implications for constitutional government and the rule of law. Normally, the path to challenging Prop 22 would involve a private individual or group filing suit against the city for not issuing a marriage license. Then, perhaps the ACLU or other groups would get involved by filing an amicus brief, the case would claim that Prop 22 is non-applicable due to conflict with Article I, Section 7 of the CA Constitution, and so on. It’s a time-honored way of creating “test cases” that generate opportunities for judicial review. In a way, Newsom is trying to “jump the gun” and generate such a challenge, but he’s the wrong guy to initiate the challenge.
The nut of the issue is: if we allow elected officials to get away with not upholding the law in situations where we sympathize, how can we condemn Bush, Rumsfeld, and others for their transgressions? How, for example, can we condemn the Administration’s holding of prisoners without due process at Guantanamo? How can we condemn the Patriot Act and repeated attempts by Ashcroft to abridge our constitutional freedoms? We can’t have it both ways.
And I’m not willing to give up my ability to condemn these things, just to support Newsom’s actions in SFO. I believe in equal rights and protection for all – including marriage and its civil privileges – but there are other ways to win this battle. Demographically, those who oppose the FMA or state constitutional amendments are slightly in the minority now, but this trend is changing because of population growth in urban areas and the opinions of younger voters. As several folks have pointed out, one strategy is to wait this out: it’s virtually a certainty that support for the FMA will wane over time, given the vast difference in polling numbers between young and older voters. An immediate challenge is also possible: if Californians want to overturn Prop 22 now, then perhaps Newsom should revoke the licenses, and the 1700+ folks who received them should file suit as co-plaintiffs challenging the constitutionality of the proposition. Unless Rehnquist has a lot of friends on the bench in California, there’s a good chance the law could be struck down through judicial review.
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I agree with your tactical point — that gaining a super-majority to repeal an amendment would be many times harder than legislation. I disagree, however, with the underlying philosophy you seem to be proposing which is that legislation is the only “democratic” process available to us.
The beauty of our constitutional system is the separation of powers into three branches which have different purview, different responsibilities, and different degrees of accountability to majorities. Courts are often the means by which minorities end up being protected against the “tyranny of the majority”, to use John Stuart Mill’s term. The Framers were fairly explicit about this point in their deliberations in Philadelphia — hence the Senate, for one thing, and an independent judiciary which is appointed during good behavior. This point is especially well elucidated in Federalist #51.
How we balance the majority’s right to “not want” gay marriage against the constitutional rights of the minority that do is a trickier question than it appears, because it goes straight to the heart of how a democracy strikes a careful and dynamic balance.
Less frequently than you might imagine, it’s been the Supreme Court that has had to protect the rights of minorities against the majority. Take the case of Brown v. Board of Education for example. At the time, the majority favored the continuation of school segregation despite overwhelming evidence that “separate but equal” facilities were simply a farce. If we had simply followed the majority in this case, much of the country would have continued denying African-americans equal protection. The Warren Court took the bold move of upholding equal protection despite the majority opinion, which “caught up” about a decade later. Are you saying that the Supreme Court should NOT have ruled in favor of equal protection in Brown, as an example, but instead gone with the majority or simply refused the case?
I’m going to think about this a bit because I think this deserves a post, not just a comment. I disagree with you, but am enjoying the discussion!
If you support gay marriage you should do this through the legislative or initiative processes, not the courts.
If you get a court decision forcing gay marriage down the throats of a country or state that does not want it you may provide the impetus for a constitutional amendment prohibiting gay marriage.
It may take you five or ten years to get gay marriage through the democratic process. I bet it will take 50 or 100 years to get a super-majority in favor of gay marriage that is large enough to repeal a constitutional amendment.
John – I think you’re mistaken about this. I’m not a Californian, so I could be missing something, but Proposition 22 which passed in the 2000 election, amended Section 308 of the California Code, not the California State Constitution. The relevant section of the code is http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=00001-01000&file=300-310. A search on the CA Constitution itself, including the Declaration of Rights, show only four uses of the term “marriage,” with none showing any limitations coming from Prop 22.
Proposition 22 affected California state law, not the constitution, and thus it is amenable to judicial review.
The propositions in California are constitutional amendments. It can’t get struck down.