OK, I guess it's about time I weighed in on this issue, although I don't really have a passionate position. To provide a crutch I'll comment on a post by Andrew Sullivan, because it offers a good substrate for a reasoned response:
The marriages will continue. Most people seem to agree with me that the gay couples getting married in San Francisco are engaged in a classic example of civil disobedience.
Not everyone. Glenn Reynolds has observed that the action more closely resembles usurpation than civil disobedience.
Key graf:
Newsom would deny others the right to violate a law he believes in, but feels free to violate the law himself when he chooses, even though his sole claim to legitimacy as a government official comes from the law.It's not civil disobedience when it's done by someone who controls the machinery of government -- it's usurpation, even when it's in a cause I agree with.
Again, from Andrew:
They do not know the legal validity of their marriages, and San Francisco has advised them as such. The marriages are almost certainly legally unenforceable. They are doing this primarily to demonstrate their desire for marriage and the justice of their cause. It's the symbolism they're after; and the symbolism is having a huge impact (look at the hysteria it is provoking on the right).
On the other hand... the "party atmosphere" that seems so consistent with the San Francisco elan tends to reinforce the perception that expanding the franchise for marriage undermines the institution. My own view is that this is an open question, and San Francisco makes a pretty lousy test case. I'm willing to give it a try, to let federalism tell us what the consequences really are, but the "display" in San Francisco doesn't really reinforce the view that an expanded franchise for marriage will strengthen the institution. Quite the contrary.
I think there would be no more perfect move than to jail some of these couples for daring to get married. It would be a spectacle of civil disobedience that would, I think, help their cause even further. Bring on the fire-hoses and police dogs! Newsom is in a different position as a public official, and that's a distinction I don't mean to gloss over. But in his case, he is arguing that he is not violating his oath by giving marriage licenses to gay couples, since, in his view, the bar on such marriages, as he understands it, violates the California state constitution. And it is the constitution that he has sworn to uphold as mayor.
I don't think anyone is foolish enough to jail these protestors. The mere concept strikes me as something of a fantasy. As for the Constitutional stance, it's a valid issue, I guess. But it just doesn't pass the scratch test for civil disobedience.
Money quote from the NYT:City and county officials acknowledge that the state's family law forbids same-sex marriage, but they argue that the state's Constitution protects equal rights and takes precedence. Legal experts said the new licenses held only symbolic value because California law defines marriage as being between a man and a woman. City officials advised the couples to seek legal advice about their status.
Now, I'm not a constitutional lawyer, let alone an expert on California's state constitution, so I don't know how valid Newsom's argument is. But if he is found in violation of his oath of office, then I see no reason why he shouldn't be prosecuted, or impeached or face any other sanction for behaving illegally. And court hearings and challenges will continue to determine this. He should not be above the law, just as Judge Moore wasn't. But Newsom is also entitled to act according to his conscience and to his own reading of the state constitution's guarantees of equal protection, just as Moore was. If he is found guilty of violating his oath of office, he should face the consequences. Somehow I think one of them might be re-election in a landslide.
There's a certain quaint character to politics, isn't there? It's part of the reason I love it. It's a little like engineering in the sense that sometimes things work when there's no rhyme or reason for believing that they would. There is something about being human that transcends rationality, without trashing it. It's a very hopeful message.
Posted by Demosophist at February 17, 2004 09:48 PM | TrackBackMy understanding is that forms are not valid in any event, so the mayor is essentially handing out what may as well be Monopoly certificates, as the individuals in question may well discover if they attempt to claim benefits on their tax forms come April. The IRS, if nothing else, is reliably greedy.
However, and I suspect that my own biases are coming into play here, both in this case and the earlier one involving Judge Moore, both men are basically shooting their respective causes in the foot through these types of antics. Moore defied a court order and Newsom appears content to flout the law for as long as he is able to get away with it (not, IMO, the existing California ban on gay marriage, as he is not handing out valid marriage certificates under state law, but he is handing out fradulent documents from a public establishment, a felony offense). I still view some kind of federalist solution (or perhaps the defederalization of marriage?) as being the best kind of way out of this whole mess but don't see that as happening any time soon. For better or worse, the ideological lines appear to have already been drawn in the sands of American (Western) political discourse. Ultimately, however, I don't think that either side should view the need to have some kind of monolithic settlement of this issue in their favor to the point of dismissing the opposition as irrational - if the ultra-conformist tendencies within American culture have taught us anything, it's that people do shift positions on important issues like this from time to time and that we should be cognoscent of this when crafting our laws. And that goes as much for the gay marriage supporters who regard their inevitable triumph as being akin to the still-unsettled civil rights movement to the opponents who believe that a permanent constitutional amendment will resolve the issue once and for all.
Posted by: Dan Darling at February 19, 2004 01:41 AMThe one thing that could force me into supporting a constitutional amendment defining marriage is if gay marriage becomes law by judicial fiat. I will be thoroughly outraged if gay marriage is effectively legalized in my state by a judge declaring that a marriage created by the ruling of the Supreme Court of Massachusetts must be honored here. The last time I checked, we lived in a democratic republic. I demand the opportunity to have my voice heard and taken into account by MY elected representative. If a free and fair vote is taken and the legislature acts in a way I don't like, I will accept the result. If a tyrant in a black robe imposes the result, I will not accept the result as legitimate. Gay marriage should be addressed by the legislatures of the several states.
Posted by: Ben at February 19, 2004 11:20 AMAnd therein underscores the dilemma, for the more radical proponents gay marriage have defined it as a civil right. The question that is going to have to come to the fore right now sooner or later is this: which comes first, the perceived right of the general population to decide the nature of their society through the democratic process or the perceived extension of human rights?
Posted by: Dan Darling at February 19, 2004 06:54 PMDan --
First, the issue you raise indicates that Americans have a rather generous definition of "rights." Rights are not implicated here -- this is a far cry from free speech, freedom of religion, the right to a trial by jury, etc. Civil marriage is a benefit conferred by society, so it cannot be a "right," since rights are defined as something the government cannot do rather than something the government must do.
Secondly, converting this into an issue of rights is the equivalent of a nuclear bomb in the argument. If a matter can be elevated to a "right," the proponent no longer has to persuade anybody that he is right; a judge simply intervenes and imposes the desired result. IMO, this should be kept to a minimum, because each time it happens, the legitimacy of the system is eroded.
Posted by: Ben at February 19, 2004 10:00 PMBen:
I concur with you completely here. However, that is how the issue is being framed by proponents of the measure, hence all of the comparisons to the civil rights movement by gay activists. This is precisely why they regard judicial fiat as being the appropriate means with which they can achieve what they see as rights without any shame.
Like you, I believe that they are incorrect in this regard. And therein lies the route through which conflict will arise.
Posted by: Dan Darling at February 19, 2004 11:37 PM