“Remember, kids, gay marriages don’t kill – people kill.”
Al Rantel, quoted on MarriageDebate.org, asks:
Well, Al’s analogy doesn’t quite work, because San Francisco isn’t handing out marriage licenses “left and right.” For example, they aren’t handing ’em out to minors.
But let’s assume that the mayor of San Franscico believes that California’s laws against concealed guns violate California’s equivilent of the second amendment. To make the point, he begins issuing concealed gun licenses in a responsible-but-still-against-California-law manner (i.e., he’s not issuing CGLs to children or convicted murderers, etc).
In that case, it would be no different from what the mayor of San Francisco is doing right now. And I’d be cool with that. Obviously, civil disobedience – if done in a peaceful, non-violent way – is a tool available to everyone to use, including pro-gun folks, and including folks whose politics I don’t share.
Of course, in either case, I’d expect the mayor to take his medicine when (and if) the courts slap him down (part of civil disobedience is willing acceptance of consequences). But what he’s doing, in essence, is questioning the constitutionality of a state law. That’s a fair thing to do, regardless of if the issue is guns or equal marriage rights.
Really, Al’s question boils down to “is it right to flout an unjust law”? While I agree the issues aren’t simple, in the end, I side with the mayor (and also with Rosa Parks). There are times when breaking the law is justified social protest..
I was just reading that Chicago may be next in line to start marrying gays. Mayor Daley says he’s got no problem with it…
The gay bashers won’t have such an easy time picking on Chi-Town. It’s the City of the Big Shoulders!
Maybe if the judge issued gun licenses to gays, the homophobes would back off.
Besides, marriage licenses get handed out to heteros with no controversy. People really need to get a grip.
I think you make an important point here, Amp. One of the major Republican talking points all through this has been how “The real issue is that Gavin Newsom, an elected official, has been *gasp* BREAKING THE LAW! Anarchy ensues.”
Well, that’s not quite how things are. See, in his letter to the SF County Clerk, Newsom makes it very clear that he believes that the law defining marriage as “between a man and a woman” conflicts with the California Constitution, which he swore to uphold. In his view, enforcing that law violates both his oath and constitutional law. Now, people may well disagree with him, but it bugs the hell out of me when they pretend that he just pulled this out of his ass or something.
Newsom had his reasons, and to my mind, they seems like decent ones.
—JRC
FWIW: The gun thing isn’t MY analogy. David Benkof quoted it from Al Rantel; I think Glenn Reynolds also made this comparison. But I never have. I know all the posts at MD.com say “posted by Eve,” but unless it has my name in the subject header, I didn’t write it.
Best,
ELT
I agree with neko: “Maybe if the judge issued gun licenses to gays, the homophobes would back off.”
i’m ROLLING!
Eve, thanks for pointing out that mistake – sorry about that! I’ve corrected the attribution.
While I agree the issues aren’t simple, in the end, I side with the mayor (and also with Rosa Parks). There are times when breaking the law is justified social protest.
Hear, hear.
And here’s a preemptive strike on the Roy Moore/Gavin Newsom comparison, via Eugene Volokh.
That’s the weirdest analogy I’ve heard in a long time. Implements designed to kill versus an institution designed to further love and happiness and togetherness?
JRC: “Well, that’s not quite how things are. See, in his letter to the SF County Clerk, Newsom makes it very clear that he believes that the law defining marriage as “between a man and a woman” conflicts with the California Constitution, which he swore to uphold. In his view, enforcing that law violates both his oath and constitutional law. Now, people may well disagree with him, but it bugs the hell out of me when they pretend that he just pulled this out of his ass or something.”
One self-righteous person in power flouting the law in the in the belief that because he is standing up for the constitution the law doesn’t apply to him. Isn’t this the same thinking that lead Roy Moore (I think that was his name) to flout the law to keep the 10 commandments in the court house?
Larry, please read the link PinkDreamPoppies posted earlier in this thread that addressed your question exactly.
“Larry, please read the link PinkDreamPoppies posted earlier in this thread that addressed your question exactly”
OK, thanks for the link. I hadn’t read down any farther than JRC’s post.
After reading the article it seems Eugene’s argument applies equally to the Roy Moore case. In my opinion both men are dangerous and deserve to be removed from office, if only for the precedents it sets. Examples need to be made of people in power who think the law doesn’t apply to them as long as they feel that the ends justifies the means.
Larry –
What if I sincerely believe there is a conflict between the law and the constitution? Should I ignor the Constitution? Should examples be made of people who do not think the Constitution applies to them?
This is why Volokh’s anwer that there is no fair comparison is “not yet”. Newsom is not breaking the law, he is *testing* the law. So was Moore at the beginning. After Moore refused to comply with a final, unapealable court order, *then* he was breaking the law. Newsom has not reached this point, so he is not breaking the law. If he continues after an unapealable court order telling him to stop, THEN he will be breaking the law. But that has not happened yet.
The precedent being set is that, since the Constitution trumps state laws, if a public official has determined that a state law is in conflict with the Constitution, that the Constitution should stand. That’s a spectacular precedent, and far from dangerous. Moore was violating the Constitution, while Newsome is upholding it. The court ruled as it did in Moore’s case because it must do so, and it will eventually rule in Newsome’s case as well. We need not get on public officials’ cases for doing their jobs.
Decnavda: “What if I sincerely believe there is a conflict between the law and the constitution? Should I ignore the Constitution? Should examples be made of people who do not think the Constitution applies to them?”
What you should do is take your fight to courts. What you are not allowed to do is break the law. Sorry, but the law is not optional for anyone, especially politicians.
Decnavda: “This is why Volokh’s anwer that there is no fair comparison is “not yet”. Newsom is not breaking the law, he is *testing* the law.”
That is simply wrong. Breaking the law is breaking the law, no matter how you try to justify it. What he is doing might even be a felony. The city of SF can (and is) sueing the state to get the law over turned. Thats what they are supposed to do. Mayors are not the final word on the constitutionality of laws.
Dan J: “Moore was violating the Constitution, while Newsome is upholding it”
Mayors do not have the power to determine what is and isn’t constitutional. If anything, Moore’s position was more justified since he was the chief Justice on the SC and had the power to decide constitutionality of issues. (Even with that his position was shaky after the first court loss). This thing needs to be stopped and let the court system work it out before public officials start flouting laws that violate their personal constitutional interpretations. There is a reason that courts and not elected officials are entrusted with this power.
Dan J: “We need not get on public officials’ cases for doing their jobs.”
I don’t think intentionally violating laws are part of the job.
Larry:
Let me ask you: how do you challenge an unconstitutional law without violating it? If you try, you’d be thrown out of court because there would be no “case or controversy”, and many (but not all) state courts do not issue advisory opinions.
The Massachusetts marriage law was overturned because same-sex couples attempted to get married, without success.
Likewise, civil rights decisions were handed down after African-Americans attempted to enroll in school or acquire other societal benefits, against the law at that time, without success.
Newsom is right in not obeying a law he and the city clerk’s office believes to be unconstitutional. If the California Supreme Court rules that the same-sex marriage ban is constitutional, yes, Newsom must stop.
In the meantime, Larry, don’t you think the proper party to challenge Newsom’s acts would be the California Attorney General’s office, not some group of fundie Xtians?
Larry has it backwards, although most of the country agrees with him. Mayors swear to uphold the constitution. When they choose not to, they become oathbreakers. When their refusal to uphold the constitution violates someone’s civil rights, that’s a federal felony (18 usc 241?) although it doesn’t usually kick in the death penalty provision of 241. When goverment officials refuse to follow the constitution, we have a right to alter or abolish them. Nothing in the constitution says that only the courts have an obligation to folow the constitution. All three branches must do so, or the system of checks and balances breaks down and tyrrany results.
Someone else floated the analogy of a city unilaterally reducing the drinking age (example was 16, but that’s a weak-ass choice, so assume 18) in violation of some superceding authority but in conformance with the principle of equality for all adults.
My response was that for both drinking age and concealed-carry laws, there’s a public safety rationale – which may or may not be valid – and that a mayor who messes with the status quo might well be responsible for lives lost. I can’t see any public safety implications to gay marriage except the possibility that some homophobe might snap and kill a Justly Married, which is a bit of a causality reach. This falls into “part of civil disobedience is acceptance of the consequences”.
Hamilton: “My response was that for both drinking age and concealed-carry laws, there’s a public safety rationale – which may or may not be valid – and that a mayor who messes with the status quo might well be responsible for lives lost.”
It doesn’t matter what or why laws are put aside, either the law is optional for officials that think their personal constitutional interpretations are correct, or its not.
If a Mayor decides that felons shouldn’t be denied their 2nd amendment rights to carry concealed weapons that would be fine if he believed he was doing is constitutional and just making a “Test case”?
If some self-righteous Mayor decided on election day that his reading of the constitution told him that only Christians should be allowed to vote, we can all take comfort things will get worked out in a few months.
Again, either the principle stands or it doesn’t. The details are irrelevant.
Aardvark: “Mayors swear to uphold the constitution.”
Yes and he is bound by written law not his personal interpretation of the constitution. What would you say if the president decided the senate filibuster was unconstitutional and therefore he could place those nominees directly on the courts whether the senate confirmed them or not? Afterall, he also swears to uphold the constitution. Does that mean he can do whatever he wants as long as he believes it to be constitutional.
Larry,
I refer you to the following from Aaron’s earlier post:
“Let me ask you: how do you challenge an unconstitutional law without violating it? If you try, you’d be thrown out of court because there would be no “case or controversy”, and many (but not all) state courts do not issue advisory opinions.
The Massachusetts marriage law was overturned because same-sex couples attempted to get married, without success.
Likewise, civil rights decisions were handed down after African-Americans attempted to enroll in school or acquire other societal benefits, against the law at that time, without success.”
Did you read that? Aaron tells us that we cannot challenge the constitutionality of a law unless we break it or attempt to break it. Do you disagree with this? If you disagree with this, will you tell us what is wrong w/ Aaron’s statement (factually, not opinionally please)?
Larry wrote: “If a Mayor decides that felons shouldn’t be denied their 2nd amendment rights to carry concealed weapons that would be fine if he believed he was doing is constitutional and just making a “Test case”?”
Yes, that would be just fine. But I’m pretty sure that the courts would order a halt to it on the very first day it happened. Same w/ Christians only voting – since that is a clear breach of the Constitution it would be stopped immediately (if not sooner). Besides which, in your example I don’t see how this could be instituted on election day nor can I see how one could disprove another’s Christianity. Would you care to try another, more realistic, scenario?
Here’s one: What if some Mayor decided that only dogs could hold elected office according to his reading of the constitution? Would he need to resign? Or could he declare that he is, in fact, a dog & show his rabies vaccination tag as proof?
Aaron: “Let me ask you: how do you challenge an unconstitutional law without violating it? If you try, you’d be thrown out of court because there would be no “case or controversy”, and many (but not all) state courts do not issue advisory opinions…The Massachusetts marriage law was overturned because same-sex couples attempted to get married, without success.”
Exactly. Someone sought a remedy through the court system. If gay people in SF were denied a license then they could fight their fight through the courts to get one, work to get the law changed through the legislative process, or amend the constitution. Those are the choices. That is the system.
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