San Francisco Mayor Gavin Newsom is issue marriage licenses to gay couples, something that California statutes definitely do not allow. Should he be condemned the way Alabama ex-Chief Justice Roy Moore was condemned when he insisted on keeping up the Ten Commandments monument in the courthouse?
I think the answer is “no,” or at least “not yet,” though I know that others disagree (see InstaPundit’s post and Rod Dreher in NRO’s The Corner). Here’s why.
I agree that generally government officials ought to obey the law, even when they rightly believe that the law is wrong; that is part of what we think of as the Rule of Law. We can all imagine exceptions, when the law is so horribly wrong that the demands of justice vastly outweigh the benefits of the rule of law. But in those situations, those who don’t share the government official’s underlying judgment may rightly condemn him, not just for error in judgment, but for interference with the rule of law.
But part of American law is the principle that unconstitutional laws are not laws at all. This principle isn’t always taken to its logical conclusion, but generally it is understood to be the principle. As I understand it, Mayor Newsom’s position is that California’s male-female-only marriage law — which is only a statute, albeit one that was implemented by a voter initiative — violates the California Constitution. If he’s right, then refusing to marry same-sex couples (thus complying with the invalid state statute) would be violating the law, because it would be denying people the equal treatment that the constitution allows them; agreeing to marry same-sex couples (thus violating the invalid state statute) would be upholding the law, because it would be complying with the constitutional command. His actions are, I suspect, partly calculated to create a test case that would lead the California Supreme Court to decide the matter.
It seems to me that this sort of conduct is permissible, and is in fact the way constitutional law is often developed. In recent years, people have been able to challenge laws in other ways besides not complying with them, for instance by bringing a declaratory judgment action. But this is, as I understand it, a relatively modern development, and it may not always be available even now. It certainly has not been seen as the only legitimate way to challenge a law that one believes is unconstitutional.
The matter is different, I think, when (1) there’s a clear precedent squarely rejecting the government official’s constitutional position, or (2) a court order to the government official requiring the official to act in a certain way (and the official has not appealed the order). Here, I think the rule of law arguments do cut very much in favor of requiring the official to comply with the legal rules, even ones with which he disagrees. That’s why I think Justice Moore was acting wrongly, especially when he defied a federal court order; both factors (1) and (2) were present in his case.
Neither (1) nor (2) are present as to gay marriages in California; and the Massachusetts Supreme Judicial Court decision that gay marriages have to be recognized in Massachusetts suggests that a similar argument in California is at least plausible. So though I think Mayor Newsom’s legal argument will and should lose, I think he’s acting within the American constitutional tradition in his actions. People can certainly disagree with his decision on the merits, and argue that it doesn’t deny equal protection of the laws for the state to limit marriages to male-female couples. But I don’t think that one ought to also fault Newsom for usurpation, or departure from the rule of law, so long as his position is a legally plausible interpretation of the state constitution.
Again, this is a general principle; there will naturally be some exceptions. For instance, if an organization refuses to give a gay married couple certain benefits that state law reserves to married couples, I don’t think that administrative agencies should try to impose fines or penalties on that organization on the theory that the gay married couple is really married. Private entities should generally (again, with some possible exceptions) be entitled to rely on the law as it now is, and shouldn’t be penalized for failing to anticipate a constitutional decision that hasn’t yet been made. Moreover, I realize that Chief Justice Moore could have argued that he was trying to create a test case challenging the very validity of federal judicial orders or federal precedent as applied to state officials; I think that’s a losing argument, and one that does jeopardize the rule of law, but people may disagree on that. Finally, the California Constitution limits the power of “administrative agenc[ies]” “[t]o declare a statute unenforceable [or unconstitutional], or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional.” I think that cities and city officials don’t qualify as “administrative agencies,” but apparently that’s part of the legal challenge to Newsom’s actions.
Still, I do think the basic point remains: A government official is entitled to — and sometimes possibly even obligated to — refuse to comply with laws that he thinks are unconstitutional, when there’s a serious argument that they’re unconstitutional, when there’s no clear precedent that says they’re constitutional, and when there’s no court order ordering him to comply with the laws. That’s Mayor Newsom’s situation, at least right now. Such challenges to existing laws are part of our rule-of-law tradition. But when a government official (especially a judge) refuses to follow pretty clearly binding precedent, and also flouts a court order, then I do think the rule of law is jeopardized.
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