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August 13, 2004

If this be error. Cory Doctorow is justly furious with the California Supreme Court:
Remember last winter’s rush of gay marriages at San Francisco’s city hall, following on from the mayoral decree that gays may marry? Remember the rock-concert campouts, the nationwide outpouring of support, the endless parade of joyous images of happily married couples?

Forget it.

I have an alternate suggestion: Don’t forget it. [11:18 AM]
Welcome to Electrolite's comments section.
Hard-Hitting Moderator: Teresa Nielsen Hayden.

Comments on If this be error.:

Clark E Myers ::: (view all by) ::: August 13, 2004, 11:40 AM:

I'll give you that one if you'll give me this one:
. For example, we would face the same legal issue if the statute in question were among those that restrict the possession or require the registration of assault weapons, and a local official, charged with the ministerial duty of enforcing those statutes, refused to apply their provisions because of the official's view that they violate the Second Amendment of the federal Constitution.

Erik V. Olson ::: (view all by) ::: August 13, 2004, 11:54 AM:

Both you, and Cory, and Mr. Myers are wrong. Right in hating the fact that they annuled the marriages, but the ruling was the exact correct one to make. The opposite -- to support SF's Mayor, would have been catastrophic.

There is a simple balance of authority. The legislative makes the law. The executive enforces it. The judicial judges it. Period.

What the Mayor of SF did was take it upon himself, a member of the executive, to judge the law. That was wrong, and that, and *only* that, is why the Supreme Court of California ruled that the marriages were null and void.

Indeed, they were *very* careful to shoot this down on this technical grounds -- that the Mayor took actions that he knew to be, prima facia illegal, based on the fact that he felt they were unconstitutional. He acted not as an executive, which he is, but as a judge, which he is not. They most certainly did not rule that the law against gay marriages was constitutional -- and there is a case working up in the courts that will challenge that fact. They may well have ruled the law unconstituional if they could have - but the case didn't challenge that.

The CASC was exactly right in this ruling. Just because you agree with a wrong doesn't make it right -- doubly so if it sets a precedent. Do you want Bloomberg ruling on what laws are constitutional, and enforcing them accordingly? What about Ashcroft?

The fact of the ruling sucks. But the reason of the ruling is compelling. To rule otherwise means that the CASC would have just granted the Mayors of California the right to choose what laws would apply, and what wouldn't.

I can't think of a worse nightmare than to let the executive of this country override the law by fiat.

Will "scifantasy" Frank ::: (view all by) ::: August 13, 2004, 12:33 PM:

In the words of Kenn Cavness, "Legally, Iím sure that the California Supreme Court made the correct decision. It still makes me sad, though."

http://www.cavness.org/cogicophony/archives/2004/08/it_doesnt_mean.php

Patrick Nielsen Hayden ::: (view all by) ::: August 13, 2004, 12:45 PM:

Erik makes a good point. I think it's possible to take these constitutional issues on board and still feel passionately that the system in which these marriages are annulled needs to be fixed.

Which is why I said: Remember how all that felt? Don't forget it.

I'm very much in favor of constitutional balance. Like Erik, what I'm arguing against is despair.

Damien Neil ::: (view all by) ::: August 13, 2004, 02:48 PM:

I'm with Erik--while I'm sad that these marriages were annulled, I can't help but agree that the court made the correct decision. I hope that some day soon, people will again be able to marry the ones they love in San Francisco--legally, this time.

Elizabeth Bear ::: (view all by) ::: August 13, 2004, 04:25 PM:

while I'm sad that these marriages were annulled, I can't help but agree that the court made the correct decision.

Yes.

On the other hand, I also support Newsome's political activism, and that of everybody who got involved. If nothing else, it has successfully broadened the dialogue.

sturgeonslawyer ::: (view all by) ::: August 13, 2004, 05:45 PM:

Ummm, you guys have missed something kinda important. The marriages have not been "annulled," nor, despite the usual misleading headlines, have they been "voided." Rather, they have been stayed - placed in a kind of judicial limbo until a decision is rendered in a separate case, as to whether the law forbidding them is constitutional.

The decision yesterday was not about the legality of gay marriage, nor about whether forbidding it was a violation of the CA State Constitution; it was on the issue of whether executives of a local jurisdiction have the right to decide that a law is unconstitutional and act on it, absent any stare decis on the subject. Half a second's thought about the checks'n'balances they taught you in Civics class will show that they clearly don't.

The Court gave a better example than the assault-weapons one: there's recent law in CA that grants "domestic partnership" a great deal of parity with marriages. Now, suppose some local official, possibly in a district where "gay rights" were unpopular, decided on his own authority that this was immoral or in violation of the State Constitution, and refused to abide by it...?

(It's anyone's guess what will happen to these marriages if the Court decides that it is unconstitutional. Since they were performed without due authority the Court could decide that they had to be done over; or it could grandfather them; or ... I don't know what ...)

Trent Goulding ::: (view all by) ::: August 13, 2004, 06:04 PM:

sturgeonslawyer: I have to disagree that the marriages have been "stayed." The Court's opinion very clearly states that they are issuing a writ of mandate directing officials to, among other things, notify all affected couples that
"the same-sex marriages authorized by the officials are void and of no legal effect."

The Court also said: "we emphasize that the substantive question of the constitutional validity of California?s statutory provisions limiting marriage to a union between a man and a woman is not before our court in this proceeding,
and our decision in this case is not intended, and should not be interpreted, to reflect any view on that issue."

I'm pretty sure that if they decide in a couple years that Family Code section 308.5 ("Only marriage between a man and a woman is valid or recognized in California") is unconstitutional, that everyone who got married earlier this year will have to reapply for licenses and do it again.

Bill Humphries ::: (view all by) ::: August 13, 2004, 06:58 PM:

Erik: the problem was that the Knight Amendment was not a product of the legislature. It was a so-called ballot initiative.

The legislature would not had passed that law, so the thugs behind it hired people to collect signatures and put it on the ballot.

Add southern Californian evangelicals to the mullet-heads and you have an electoral majority.

The initiative and recall system destroyed California.

Glen Blankenship ::: (view all by) ::: August 13, 2004, 07:55 PM:

Yep - democracy sure can get ugly sometimes.

Erik V. Olson ::: (view all by) ::: August 13, 2004, 07:56 PM:

So how does that make it any less of a law?

Indeed, you could say it is more of a law, given that it was passed by the direct view of the people, not by thier representatives.

Yes, the ballot initiative system is very much a problem. Ditto the recall. But, you know what -- they still passed. Where were those who would vote against it?

The crux of the matter -- the moment the law can be suspended by the voice of one person is the moment you live in a dictatorship. If a mayor you like can do this, then a mayor you don't like can as well -- as can a president.

Buzz ::: (view all by) ::: August 14, 2004, 01:09 AM:

to Cory: Honestly, you were surprised by this ruling?

Heresiarch ::: (view all by) ::: August 14, 2004, 01:15 AM:

I'm very wary of people who say that a system allowing the people to directly determine their own laws is bad. I live in Oregon, where there's a similar ballot initiative system. Almost every year, Lon Mabon (leader of the anti-gay neo-con Oregon Citizens Alliance) tries to get an anti-gay measure passed, and every year, he collects his signatures, gets on the ballot, and is defeated. In Oregon there are still enough politically active liberals and liberal groups to counter the efforts of Mabon and his ilk.

I don't think the problem is that the ballot initiative exists. It's that the only people taking advantage of it at the moment are conservative crazies like Mabon. Right now, the conservative political machine is far better organized--especially at the grass-roots level--than the liberal machine. It's not surprising that they can turn the ballot initiative to their own advantage. If they can rally their people to get Nader on the presidential ballot of all things, then why are we surprised that they can get more initiatives onto the ballot than we can?

The answer isn't to demonize the system. The answer is to participate in the system.

Bill Humphries ::: (view all by) ::: August 14, 2004, 02:04 AM:

Erik, Heresiarch:

We have this amazing thing called representative democracy. You vote in people whose interests and policies align with yours, and they have staff to help sort through all the legislation and vote on it.

It's great.

That way you don't have some rich jerk from Orange County spoof the system by paying for ads selling the "Don't Hurt Puppies and Kittens Initiative" which has nothing to do with puppies, or kittens, but does involve him getting a large, public subsidy.

Oh, and because of the initiative system, our state legislature has no power over the budget. It's all been allocated by various puppies and kittens propositions.

And since the legislature has little power over the budget, it's demonized, so another group of rich opportunists hire a bunch of hippies (no, really, they swarm outside of Whole Foods, you have to use a machete to get through them) to get signatures for term limits. That passes, and any expertise in the state house gets 'termed out' and the only group with expertise are the lobbyists.

But wait. It gets better. Since there's been a brain drain in Sac, and the group remaining have no authority over most of the budget, the Austrian Strongman proposes that even more power is signed over to the Executive Branch.

This now guarantees that whomever has the largest pile of cash to burn on TV ads (in which the opposition is accused of doing unspeakable things to puppies and kittens) runs the state.

Don't talk to me about Democracy. I'm living through the result of it.

Dave Bell ::: (view all by) ::: August 14, 2004, 03:56 AM:

The whole bit about not enforcing a law is a red herring. Go look for those lists of bizarre local laws. Even with the sensible laws, many of them don't get routinely enforced. The cops have to decide how to use their time. So murder gets a lot of effort, but not every speeding motorist is stopped.

What is significant in this case is that the Mayor was taking an active step. He was issuing the licences.

Does it hurt anyone that this law was broken? Hardly. It wasn't a lynching. But it was an active encouragement to break the law, not a cop ignoring a woman wearing those illegal patent leather shoes.

Kevin Andrew Murphy ::: (view all by) ::: August 14, 2004, 04:55 AM:

Public officials interpret laws all the time for their jurisdictions, including interpreting which laws will be enforced and how some of the others will be enforced. San Francisco has been issuing marriage licenses for hundreds of years--Newsom decided they'd be issued to same sex couples (a popular decision in his city, and good for tourism as well) and to not enforce an unpopular (locally) state law that had been passed by ballot referendum, no different than the police being instructed to look the other way on people driving five miles over the speed limit or other things which might be viewed as unpopular or silly.

I am put in mind of my high school chemistry teacher, who came into our classroom one day holding in one hand a plastic cannister filled with bits of lead for science experiments, and in the other a mandate from the state legislature that any and all lead items, even those used in chemistry classes, be removed from the schools and disposed of for fear of poisoning the darling children. He then added as commentary "Of course, you can still play with all the mercury, arsenic, cyanide, acids and lye you like. Just no lead."

He then proceeded to peel the label of the lead container, and with great ceremony, dropped both it and the state mandate in the trash can, saying, "We have a great many unlabeled containers in this room. I'm putting this one up here."

This was a stupid law and I think my teacher made the right decision in not enforcing it.

That said, I think the State Supreme Court was under intense political pressure so they couldn't just conveniently ignore Newsom's actions, which they would have if it was something popular locally that no one else in the state or national scene had given a damn about. So they publicly declared the marriage licenses void, and instructed Newsom to offer a refund--but the dissenting justice signalled to everyone listening to not take up the offer of the refund and to wait until the constitutionality case came to court (after the upcoming presidential race) and the fat lady sings.

The job of a mayor is to keep his citizens happy and his city prosperous. Newsom's decision was just dandy for that.

Kevin Hayden ::: (view all by) ::: August 14, 2004, 07:01 AM:

I still maintain that litigation worshippers are threatening to undercut the sanctity of people's gayness.

Marry at will, without blessing of court or constitution. The real union's in the heart and if enough people just get civilly disobedient and marry anyway, the tide will wash away the impediments of those worshipping the false god.

Charlie Stross ::: (view all by) ::: August 14, 2004, 12:52 PM:

Kevin, at risk of sounding like a humourless sourpuss, that's a dangerously complacent attitude. What happens to a couple if, between now and some future (hypothetical) enabling legislation (or court ruling), one of the partners dies? If they're a heterosexual married couple, then inheritance and insurance law is generally on their side. If they're not, then this little worked example of the law in motion is going to fuck them over royally.

This isn't an abstract question. Several hundred people got married, didn't they? Odds are that some of them will be dead -- of old age, road traffic accidents, illness, or whatever -- before the appeals work their way up to the California supreme court: and their partners will be directly affected because, like it or not, marriage comes with certain legal privileges attached, and if they are held not to be legally married then those privileges do not apply.

Erik V. Olson ::: (view all by) ::: August 14, 2004, 03:28 PM:

This was a stupid law and I think my teacher made the right decision in not enforcing it.

So? Did your teacher take an oath-of-office? Do the teachers in your school system act as public safety officers, with the power of the executive behind them?

No.

There is a huge difference between a *citizen* refusing to follow a law they feel is unjust, and a member of the executive doing so. The first is civil disobediance. The second is a direct attack upon the foundations of our political system.

Several hundred people got married, didn't they?

No. In the eyes of the law, those marriages did not happen. In the wording of the opinion "They are void and of no legal effect."

Unless the CASC is overturned by SCOTUS, those people were (alas) never married. I seriously doubt the Supreme Court will touch this.

If another case should overturn the prohibition against such marriages, those married won't magically reappear. They'll need to do it again.

This sucks, but this is the way it has to be. The way to correct this wrong is not to give the executive the power to ignore whatever law they feel isn't right. The mayor of SF may have been trying to do good, but the side effect was deadly. That could not stand and this country remain in any way a free country.

Note how many of the amendments to the Constitution have variations of this phrase.
"Congress shall have power to enforce this article by appropriate legislation" What happens to these amendments if an executive can ignore that legislation by fiat?

That's one of the arguments against Bush, right? Do you want him to have legal precendent to ignore what ever law *he* feels is "unconstituional?"

If so, congratulations. You've just made both Guantanamo Bay *and* Abu Gahrib perfectly legal.

Heresiarch ::: (view all by) ::: August 14, 2004, 05:36 PM:

Bill Humphries said: We have this amazing thing called representative democracy. You vote in people whose interests and policies align with yours, and they have staff to help sort through all the legislation and vote on it.

It's great.

That way you don't have some rich jerk from Orange County spoof the system by paying for ads selling the "Don't Hurt Puppies and Kittens Initiative" which has nothing to do with puppies, or kittens, but does involve him getting a large, public subsidy.

No, instead he buys off the democratically elected representative with campaign contributions, political ads, etc., which is fairly easy since all politicians are, by default, insanely desperate for cash.

Oh, wait, no, I forgot, a representative democracy is totally immune to the corruption of private money.

If you are willing to give up on the ballot initiative on the grounds that itís vulnerable to exploitation, why are you defending representative democracy? It hasnít really impressed me with its resistance to vice. If it is less prone to exploitation, it is because it has been around a lot longer and people have already taken advantage of or closed all its loopholes.

The initiative ballot isn't some cute little way of letting the people pass handy-dandy laws that everyone agrees on gone horribly wrong. It is, essentially, the creation of a parallel legislature, one run directly by the people. It has a lot of power. Somehow, this fact has mostly escaped people's notice. Now, personally, I don't think that it is necessarily a bad idea to let everyday people get into the law-making business, and Iím wary of people who think it is. Admittedly, it lacks the checks and balances built into the legislative branch, i.e., the separation of the Senate and Congress. This makes it dangerous--but that doesn't mean that the idea is inherently bad.

The recall, on the other hand, just seems like a bad idea all around.

Patrick Nielsen Hayden ::: (view all by) ::: August 14, 2004, 05:40 PM:

"The mayor of SF may have been trying to do good, but the side effect was deadly."

I see what you're saying, but another of its side effects was to put an immense number of images of happy gay couples into the public consciousness.

When public officials in Boston refused to enforce the Fugitive Slave Laws, they ran the risk of gravely undermining the proper relationships between constitutionally balanced powers. They were also doing the right thing.

Newsome's move in issuing those licenses wasn't quite as morally urgent, but then again, there's also rather a lot of difference between issuing marriage licenses on the one hand, and Abu Ghraib on the other. The point I'm making is that you can't draw quite so perfect a line between "a *citizen* refusing to follow a law they feel is unjust, and a member of the executive doing so". At some point, common sense tells us that the substantive content of the act in question is as relevant as its formal characteristics.

sturgeonslawyer ::: (view all by) ::: August 14, 2004, 06:09 PM:

My bad. I read the decision too rapidly, and it wasn't a stay, it was a void.

Which is a damn shame, because there's plenty of precedent for a stay; when various states were moving away from miscegenation laws, exactly analogous situations occurred in several of them, and again and again, the courts in question decided that the local official had no authority but stayed the marriages, rather than voiding them, pending the decision on the issue of racial marriage barriers.

Fooey. Fooey fooey fooey.

Heresiarch ::: (view all by) ::: August 14, 2004, 10:38 PM:

What the mayor did was the right thing. He followed his beliefs, even though they ran counter to the law. However, he shouldn't be surprised to be thrown in jail, no more than civil rights agitators were in Birmingham. He did what he felt he had to do, and the California Supreme Court did what they felt they had to do.

Re: citizen vs. executive, I think the situation is exactly parallel. Just like citizens, executives must act as they see fit; and they should also expect to be held accountable for it. It's the second part that Bush and co. have trouble with.

Erik V. Olson ::: (view all by) ::: August 15, 2004, 10:47 AM:

there's also rather a lot of difference between issuing marriage licenses on the one hand, and Abu Ghraib on the other.

Yes. It's clearly different parts of the slope. But game out what happens if the CASC sets the precedent that the executive could just wave away laws they disliked.

The action the mayor took was wrong -- and was countered. I hope that we can marry these couples, but I'm not willing to sacrifice one of the most critical checks in our system to let a few thousand couples get married. Indeed, if the choice is "ban marriage altogether" or "allow mayors and such the power to ignore law at a whim", I'm all for single people.

This is how facism starts. You don't take some extra- or counter-legal action against something unpopular. You don't suddenly revoke the rights of the vast majority of the system. You start by doing something that your base agrees with. Then you push things a bit. Then, suddenly, people are wearing red letters, pink triangles, and yellow stars.

The fact that those marriages, made in love and idealism, but with a frankly illegal basis, were voided sucks, until you consider the consequences of not voiding them.

There are times where breaking the law to do right is correct -- and the person doing so still must answer to that law. This, however, was going another step -- it made *breaking the law* right, with the person doing so not answerable for his actions.

The reason I used Abu Ghraib is simple -- it is the exact same side of the coin. A law is in place, and an executive is claiming that the law is not in effect for some reason. The *exact* rational that Mayor Newsome used to marry those couples is the *exact* rational that Bush is claiming to torture Iraqis -- the executive can judge what laws apply and what laws do not.

Are these marriages worth that?

Patrick Nielsen Hayden ::: (view all by) ::: August 15, 2004, 12:33 PM:

Heresiarch writes: "What the mayor did was the right thing. He followed his beliefs, even though they ran counter to the law. However, he shouldn't be surprised to be thrown in jail"

Wait a minute, which alternate universe are we in? Nobody in San Francisco is being thrown in jail over any of this, so far as I know.

Erik Olson writes: "This is how fascism starts"

Um, well, also there's the part where economic oligarchs form a political alliance with a large middle- and working-class population that feels a strong sense of grievance against perceived "cosmopolitans" and other supposed elites. I think you mean "this is how serious abuse of power often starts," which is reasonable. Not every instance of overweening authority is "fascism."

"The *exact* rationale that Mayor Newsom used to marry those couples is the *exact* rationale that Bush is claiming to torture Iraqis -- the executive can judge what laws apply and what laws do not."

Actually, that's not true. In fact, Newsom's argument is set forth in his public letter of February 10, 2004 to the San Francisco County Clerk, and remarkably enough, it doesn't make any such claim.

Newsom's argument is that "Article I, Section 7, subdivision (a) of the California Constitution provides that '[a] person may not be...denied equal protection of the laws'," and that "the California courts have interpreted the equal protection clause of the California Constitution to apply to lesbians and gay men and have suggested that laws that treat homosexuals differently from heterosexuals are suspect." Therefore, he instructs the County Clerk: "Pursuant to my sworn duty to uphold the California Constitution, including specifically its equal protection clause, I request that you determine what changes should be made to the forms and documents used to apply for and issue marriage licenses in order to provide marriage licenses on a non-discriminatory basis, without regard to gender or sexual orientation."

Now you can argue about whether this was sensible, reasonable, legal, prudent, right, or smart, but one thing you can't argue is that Newsom's argument is "the *exact* rationale" as that used by the (supposedly now repudiated) 56-page confidential legal memorandum prepared for Rumsfeld in which Administration lawyers hypothesized that "in order to respect the president's inherent constitutional authority to manage a military campaign" the prohibition against torture "must be construed as inapplicable to interrogation undertaken pursuant to his commander-in-chief authority."

There are similarities here; there are also differences. Both Newsom and the Administration lawyers appeal to their respective constitutions. But the two arguments diverge almost immediately. Newsom is claiming that the California constitution obliges him to a particular course of action, whereas the fundamental argument of the Administration memo is that the constitutional role of the President as "commander-in-chief" makes him immune to prohibitions both domestic and international that would apply to other Americans. Newsom is saying "I believe I'm obliged to take this action," whereas Bush's lawyers are saying "We believe the President can't be prosecuted."

Which leads directly into the most important way in which Newsom's argument and subsequent action aren't "*exactly*" the same as Bush's. Newsom's argument was made in public, in full knowledge that he would be accountable to the electorate and the courts. Bush's lawyers' argument was contained in a secret memo that only came to light by accident--a memo whose entire point was to examine the possible legal exposure of Bush, Rumsfeld, and other administration higher-ups. It's very difficult to see these both as "*exactly*" similar first steps down the slippery slope to fascism.

I've acknowledged that you have a point worth considering: we should be very dubious about our elected executives overstepping their constitutional bounds, even when we support their goals. But I suggest that the differences between Newsom's and Bush's behavior are far more important than their similarities, and that one ought to be able to acknowledge this no matter how one thinks the California Supreme Court ought to have ruled. Because if a public, accountable constitutional challenge is "*exactly*" the same as a furtive legal maneuver conducted in deepest secrecy, we're leaving our executives precious little incentive to behave themselves at all.

Kevin Andrew Murphy ::: (view all by) ::: August 15, 2004, 02:51 PM:

Erik Olson wrote:

This was a stupid law and I think my teacher made the right decision in not enforcing it.

So? Did your teacher take an oath-of-office? Do the teachers in your school system act as public safety officers, with the power of the executive behind them?

No.

There is a huge difference between a *citizen* refusing to follow a law they feel is unjust, and a member of the executive doing so. The first is civil disobediance. The second is a direct attack upon the foundations of our political system.

Erik--

Ahem. Please do not ask me questions and then provide the answer yourself. Especially when that answer is incorrect.

Your resounding single-line

No.

is false. Those taking instructional positions within the public schools of the State of California are required by law to take an Oath of Allegiance to uphold the Constitution of the State of California. I, the same as my science teacher, signed this oath, first at my university, again at the County Board of Education, and moreover, I annoyed the records clerk at the office by insisting on reading everything in it before I put my signature to the document, which I'm certain is still on file with the State of California, as is Mayor Newsom's.

As for teachers operating as public safety officers, within the confines of the campus, it's part of the job description. It's why schools have fire drills, among other things.

Administration is all about delegating authority. The state passed on the mandate about lead in the classroom to the school districts, who passed it on to the principals of the schools, who passed it on to the individual teachers, who then, in the confines of their own classroom, have the authority to implement the mandates, resolve conflicts between contradictory mandates, and interpret the spirit of the mandates when the wording of the mandate is confusing or overbroad and absolute implementation would interfere with other mandates.

The spirit of the "no lead" mandate is that it's bad for kindergarteners in poor districts to be chewing on lead paint chips, but high school students will generally know better than to chew on fishing weights.

Similarly, the authority is delegated to Mayor Newsom on how to run his city, and he went and directed his County Clerk as to what changes should be made to certain forms to comply with the state constitution. With that delegated authority, she then made the changes as she felt proper, and was the one to perform the first same sex marriage, though the mayor later aided her office by personally performing some other ceremonies, though under her authority, the same as a high school principal can come in and teach a teacher's class for a period while they're away.

There isn't any breakdown in the system. This is the proper way that things are supposed to operate.

Kevin Andrew Murphy ::: (view all by) ::: August 15, 2004, 03:00 PM:

Small correction: I believe actually the first marriage was performed by Mabel Teng, the City and County Assessor, though I believe this was still under the authority of the County Clerk's office.

Kevin Andrew Murphy ::: (view all by) ::: August 15, 2004, 03:00 PM:

Small correction: I believe actually the first marriage was performed by Mabel Teng, the City and County Assessor, though I believe this was still under the authority of the County Clerk's office.

Heresiarch ::: (view all by) ::: August 15, 2004, 11:33 PM:

Patrick Nielson Hayden writes: Wait a minute, which alternate universe are we in? Nobody in San Francisco is being thrown in jail over any of this, so far as I know.

Well, I was speaking metaphorically. What I meant was that he (and those of us supporting him) had to be prepared for the potentially ugly consequences of his actions.

Clark E Myers ::: (view all by) ::: August 16, 2004, 12:33 AM:

Notice that according to published reports some effort was made to limit potentially ugly consequences including:

5 The warning reads in full: ďPlease read this carefully prior to completing the application: [∂] By entering into marriage you may lose some or all of the rights, protections, and benefits you enjoy as a domestic partner, including, but not limited to those rights, protections, and benefits afforded by State and local government, and by your employer. If you are currently in a domestic partnership, you are urged to seek legal advice regarding the potential loss of your rights,
protections, and benefits before entering into marriage. [∂] Marriage of gay and lesbian couples may not be recognized as valid by any jurisdiction other than San Francisco, and may not be recognized as valid by any employer. If you are a same-gender couple, you are encouraged to seek legal advice regarding the effect
of entering into marriage.Ē

Further the Court ordered full refunds to those who want them. Somebody will have to point out to me those potentially ugly consequences for anybody.

There certainly remains an argument that the Nuremberg defence is no more universally valid after this decision than before and thus it follows that disobedience remains a duty. However the parties to this action were:

BILL LOCKYER, as Attorney General, etc., )
)
Petitioner, )
) S122923
v. )
)
CITY AND COUNTY OF )
SAN FRANCISCO et al., )
)
Respondents. )
___________________________________ )
)
BARBARA LEWIS et al., )
)
Petitioners, )
) S122865
v. )
)
NANCY ALFARO, as County Clerk, etc., )
)
Respondent. )
___________________________________

be hard for the Court to find against anything but an office based on this case.

Erik V. Olson ::: (view all by) ::: August 16, 2004, 08:54 AM:

Because if a public, accountable constitutional challenge is "*exactly*" the same as a furtive legal maneuver conducted in deepest secrecy, we're leaving our executives precious little incentive to behave themselves at all.

It is, in this very compelling sense.

What if Mayor Newsome had won? What if Bush gets away with Abu Gharib?

Then, suddenly, this is precendent. Suddenly, the courts have signed off on the executive void of law by fiat. You can argue "Bush evil, Newsome Good", and I won't quibble. You can note that Bush tried to submarine this, and Newsome was very public about it, and I won't argue either. The exact arguments they used differ in detail, but, fundamentally, both took the exact same position -- that they saw the law, as written, as not binding them, thus, they could take action that was *explicitly* forbidden them. The laws against the US use of torture and the marriage of same-sex partners in California are very clear.

Both Newsome and Bush were making, fundamentally, the exact same core argument -- that the law, written by the legislative, did not apply to them for judicial reasons, therefore, they were not obliged to follow it. Both were taking the mantle of the judiciary up to justify actions that were, by the relevant law, illegal. It is, fundamentally, the *exact* same action. Never mind that one was for a laudable goal, and one was for an act of evil -- or the difference in detail.

This is why the CA Supreme Court was exactly right in this -- Mayor Newsome's actions, while laudable, were exactly wrong.

I hope there comes a day, soon, where Mayor Newsome can legally order those licenses issued. But I'm not willing to give even mayors I like the power that he attempted to assert.

Christ, the thought of Daley with that power scares me to the core.

Patrick Nielsen Hayden ::: (view all by) ::: August 16, 2004, 10:32 AM:

"Both Newsome and Bush were making, fundamentally, the exact same core argument -- that the law, written by the legislative, did not apply to them for judicial reasons, therefore, they were not obliged to follow it."

I think we're going to have to agree to disagree here. Early on, I thought you were making a pretty reasonable point, but I'm afraid that the harder you argue, the less merit I find in it.

I'm puzzled by your use of the phrases "judicial reasons" and "the mantle of the judiciary," as if Newsom and/or Bush were somehow transgressing the judiciary's role in our system of government. Surely everyone who takes an oath to uphold a constitution, state or Federal, executive, legislator, judge, teacher, police officer, or other public servant, is obliged when necessary to consider issues of constitutionality.

As Kevin Murphy points out, resolving conflicts between contradictory mandates is part of what executives are supposed to do, and when they do it as publicly and straightforwardly as Newsom did (right down to, as Clark Myers shows, warning the gay couples getting married that the legality of their marriages might not stand up in court), it's really hard to see how it's some kind of first step down the road to tyranny.

You're absolutely right that elected executives mustn't be allowed to rule by decree. But there's nothing remarkable about a mayor, county executive, or governor discerning a conflict between one law and another, or between a law and their polity's fundamental charter, and making a choice which is then reviewed by the courts. This is the system operating as it's designed to, not the slippery slope to fascism.

I don't expect you to be convinced by this, because you seem committed to the idea that when an executive arbitrates a constitutional conflict of this sort, it's "void of law by fiat." I don't think it is. "Void of law by fiat" doesn't warn the people being granted marriage licenses that the marriages in question may not be recognized by any jurisdiction outside San Francisco. "Void of law by fiat" doesn't submit itself to the authority of state supreme courts. "Void of law by fiat" is something else.

likwidshoe ::: (view all by) ::: August 16, 2004, 05:36 PM:

I'm amazed that so many of you applaud democracy and then ignore it when it doesn't go your way.

Proposition 22 states, "Only marriage between a man and a woman is valid or recognized in California" and was approved in 2000 by a 61.4% "Yes" vs a 38.6% "No" vote.

What's the matter? Democracy not good enough now? Can't understand the proposition? What is it guys?

Xopher finds "you folks" post ::: (view all by) ::: August 16, 2004, 06:04 PM:

No, not comment spam. But a first post by a person using the "you folks" trope. Possibly a drive-by troll.

Checked (view all by) before deciding not to bother responding.

Oh, hell with it: Direct democracy, like the California Referendum system, does in fact undermine the principles of representative democracy, which include the idea that a small set of people, selected by the body politic, will be or become (sometimes by virtue of the office itself) better informed, and make better decisions than the body politic could make for itself.

It is not merely technology that keeps us from making most decisions by referendum.

What Prop 22 does prove is that the majority of California voters are assholes. (Or were at the time they voted that way. Maybe scales have fallen from a lot of eyes, I have no way of knowing.) So are most Missouri voters.

Gotta say, no place in CA or MO is getting my Worldcon vote or vacation $ while those laws are in place. Obviously those states are telling me I'm not welcome, though they'd happily suck down my money. Fuck 'em. And I mean with a big, thorny stick.

(San Francisco is a different story. I'd love it if the state could be split North-South, but I'd be paying CA state sales tax on anything I buy there. Sorry, San Francisco. Sorry, any other reasonable place in CA or MO. Sorry, minority of decent thinking people in both states. Go to hell ASAP, majority of assholes.)

Patrick Nielsen Hayden ::: (view all by) ::: August 16, 2004, 07:01 PM:

Not sure I agree about "direct democracy." Like many other democratic systems, the apparatus of referendums can be gamed by people with enough money and determination. I'm not sure that this convicts it of "undermining the principles of representative democracy," such as they are. Democratic self-rule is a work in progress.

Obviously the troll is a troll. Many undemocratic measures have been ratified by democratic means. Most people today would agree that, for instance, the anti-miscegenation laws common in the pre-1960s United States were wrong, regardless of the fact that they were endorsed by thumping majorities. When democracies vote to strip some of their members of the rights enjoyed by the rest, what should people of good will do? It's a tough issue, and I don't profess to have a bulletproof answer.

Xopher ::: (view all by) ::: August 16, 2004, 07:04 PM:

Any system can be gamed. Any system can be used for good. These are not necessarily even different.

Sorry if I went off bang there. Sometimes the presence of a troll is an irresistable temptation to become a Billy Goat Gruff.

Larry Brennan ::: (view all by) ::: August 16, 2004, 10:45 PM:

FWIW, the only ballot proposition that I'd sign a petition for is the one that would repeal the ballot proposition process.

California is a great example of what can go wrong when you have a hybrid representative/direct democracy system. Our schools have gone from first to (almost) worst (thanks Mississippi and Alabama!). The only places that work well are those that can muster the 2/3 supermajority popular vote to raise taxes. (Which is pretty much the Bay Area suburbs and noplace else.)

Our ballots are clogged with nonsense propositions that are often patently unconstituional (e.g. Prop 187) and mean-spirited (also see Prop 187). And Prop 13 has hamstrung the state.

The sad thing is that the ballot initiative was introduced in response to government corruption as a good-government measure.

Kevin Andrew Murphy ::: (view all by) ::: August 16, 2004, 10:50 PM:

When democracies vote to strip some of their members of the rights enjoyed by the rest, what should people of good will do? It's a tough issue, and I don't profess to have a bulletproof answer.

Directly relevant to the hellish mess that is Israel/Palestine, especially when people trumpet about it being a democracy.

Add to that the fact that most democracy start with some inequities to begin with. For example, this country has had numerous cases in the past where the right to vote was expanded to encompass entire new swatches of people: minorities, women, folk under twenty-one.

Amendments generally do not take away rights, but they can--witness Prohibiition. And lesser laws can still prohibit many things that are a right elsewhere on a state, county or city level.

Gay people don't have a historic right to marry in this country because they didn't have a historic right to exist. They do now, but it's a matter of laws slowly changing to encompass them. This is all part of the process.

Newsom's approval of the same-sex marriages in his city worked towards this process by setting a precedent that there was hardly panic or rioting in the streets--that was months before, during the anti-war rallies.

I know some might find this perspective to lackadaisical, but honestly, change takes a while to come in, and it's a plain fact that it takes folk a while to become comfortable with any idea.

Jeremy Leader ::: (view all by) ::: August 17, 2004, 12:42 AM:

The fundamental flaw with direct democracy is that people who have the least knowledge on which to base decisions (and are the least competent decision-makers) are also least likely to try learn more (because they have the highest opinion of their own competence).

If the representatives could somehow be exempted from this phenomenon, so that only actual competent leaders ran for office, representative democracy would be vastly better than any alternative.

Unfortunately, of course, candidate representatives are just as susceptible to mis-judging their own competence as any of us.

Maybe there's some mix of representative and direct democracy that avoids this problem, but I'm not holding my breath.

Meanwhile, it's the system we've got, and no proposal I've seen plausibly fixes all its flaws.

However, I don't see anything hypocritical in favoring democracy, while deplore one particular act of a particular democracy. I have no problem with saying that in one particular circumstance, a politician was justified to engage in an ultimately symbolic defiance of a bad law, and I am perfectly willing to be saddened by the actions of the court in overturning said defiance, while recognizing their legal correctness.

However, given that the constitutionality of the law is being questioned, I don't agree that the court should have voided the marriages. They were right to temporarily halt further marriages until the constitutionality question is decided. However, the harm to society caused by letting the existing marriages stand until a final decision, to my mind would be less than the harm to the couples of voiding them immediately.

Meanwhile, the pedantic geek part of me, which loves exercising formal systems trying to find their weak spots, looks at "a marriage is defined as being between a man and a woman" and boggles at the possibilities. I wonder if any of the couples married in SF (or married as a "straight" couple anywhere else) included a hermaphrodite, someone with abnormal X/Y chromosomes, or a pre- or post-operative transexual. If you define "man" and "woman" chromosomally, then what about XYY and the like? If you define the terms by the external appearance of peoples' genitalia, then would a sex-change operation void a marriage? Fundamentalists, religious, linguistic, or legal, amuse and baffle me.

Heresiarch ::: (view all by) ::: August 17, 2004, 03:25 AM:

Clark E Meyers writes: Notice that according to published reports some effort was made to limit potentially ugly consequences including:

5 The warning reads in full: ďPlease read this carefully prior to completing the application: [∂] By entering into marriage you may lose some or all of the rights, protections, and benefits you enjoy as a domestic partner, including, but not limited to those rights, protections, and benefits afforded by State and local government, and by your employer. If you are currently in a domestic partnership, you are urged to seek legal advice regarding the potential loss of your rights,
protections, and benefits before entering into marriage. [∂] Marriage of gay and lesbian couples may not be recognized as valid by any jurisdiction other than San Francisco, and may not be recognized as valid by any employer. If you are a same-gender couple, you are encouraged to seek legal advice regarding the effect
of entering into marriage.Ē

Further the Court ordered full refunds to those who want them. Somebody will have to point out to me those potentially ugly consequences for anybody.

The most important positive aspect of the ruling was that it very explicitly did not rule on the consitutionality of the issue. That need not have been the case. If they had ruled on the constitutionality, and had upheld the ban as constitutional (paralleling Dredd Scott, for example), then that seems like a pretty ugly consequence to me.

And it also seems odd to hold up a full refund as any sort of consolation to those whose marriages were just declared void. "I suppose we'll just have to go back to being second-class citizens, and just try to forget the emotional toll of having our dreams snatched out of our hands--but at least we got our money back!"


Jeremy Leader writes: If the representatives could somehow be exempted from this phenomenon, so that only actual competent leaders ran for office, representative democracy would be vastly better than any alternative.

And if only we could find a totally selfless, supremely competent person and make them run the whole universe a la Hitchhiker's Guide to the Galaxy, why then we could dispense with this democracy nonsense all-together!

Kevin Andrew Murphy ::: (view all by) ::: August 17, 2004, 05:27 AM:

The refunds weren't meant as consolation so much as proper legal form: If someone pays for a marriage certificate, they get a marriage certificate. If the certificate is voided by fiat, you refund the money paid for it. Running off with the money and giggling would make the court accessory to fraud, and pocketing the processing fees would be grounds for more complaints.

Suspending the marriages until the constitutionality is decided would be a reasonable idea, except that waiting for the case to come to trial would take forever and a day, and since the marriages superceded domestic partner contracts, putting them in legal limbo for years would make those who signed them unable to reobtain domestic partner contracts, and the benefits thereof, in the interim.

More than that, it appears that the actions of the California judges have allowed those couples married in California, with the marriages then voided, to remarry in Massachussetts. Note this bit of text:

Governor Romney has expressly
instructed clerks that a couple who is already married cannot get married again
unless that marriage has been terminated by death, divorce, or annulment. If you
received a marriage license from a governmental body that was authorized to
issue it, such as the city of San Francisco, you are legally married. We
recognize, however, that litigation is under way regarding the status of those
marriages, and that some people might feel the need to marry again to secure
their legal status.

This from http://www.glad.org/marriage/howtogetmarried.html