San Francisco:

I am, as I’ve said a number of times, strongly in support of gay marriage.

That said, the decision by San Francisco’s city government to start issuing same-sex marriage licenses doesn’t at all please me the way it does Andrew Sullivan. San Francisco officials are obligated to implement California state law. The California mini-DOMA was put into the state constitution by initiative [SEE UPDATE BELOW; I was mistaken about this part]; the SF officials can’t claim to be upholding California’s equal-protection clause against a statute that violates it. So their claim must be that they’re upholding the federal equal-protection clause against a state constitution that violates it. In this, they are making up an interpretation of the Constitution to suit their needs, and acting in defiance of the rule of law. Their offices are creatures of the California constitution; they’re not free to disregard that constitution at their convenience.

Note that the problem lies with the city officials, not with the gay and lesbian couples. The former are acting outside their authority. The latter haven’t committed any offense. I’m always prepared to believe the worst of John “buggery, buggery, buggery” Derbyshire on gay issues– but Sullivan actually does him an injustice by saying

I concur with John Derbyshire that one possible response to the civil disobedience in San Francisco is the mass or singular arrest of married couples or the mayor. Some on the Christian right agree and want to arrest Newsom. Go ahead. Make his day. I’m sure many of those newly married couples would also gladly go through the arrest procedure. Being thrown in jail for loving and committing to another person for life would highlight much of the injustice that now exists. The arrests would further the groundswell of empowerment that is now dawning on gay America. So bring it on. We shall overcome.

Derbyshire actually said “Can’t someone do a citizen’s arrest of these law-breaking registrars in San Francisco? Where on earth are the state authorities? Where is the Governor?” He didn’t mention arresting the couples.

[As far as I can figure, the officials couldn’t yet be arrested. Once a court issues the inevitable injunction, if they break it, then they can be arrested for contempt. But acting outside the bounds of one’s constitutional authority isn’t, directly, a criminal offense; it just makes the purported marriage licenses void.]

UPDATE: I appear to have been mistaken about one important thing: Proposition 22 (California’s mini-DOMA) amended the family law statutes, not the constitution. (I don’t come from an initiative state; my impression had been that initiatives equalled constitutional amendments. Aren’t they supposed to be superior to legislative enactments? If they just amend statutes, what’s to stop the legislature from amending them back again?) On the other hand, the California constitution apparently specifically prohibits state agencies and non-judicial officials from unilaterally deciding that state statutes are unconstitutional. The Lambda/ ACLU folks are arguing that city officials aren’t relevantly state officials, but that seems like a stretch to me; city governments are entirely creatures of state law. Thanks to Gabriel Rosenberg and Kurt Hemr for the correction. The Lambda briefs are available here.

SECOND UPDATE: Statutory initiatives in California, which require only a majority rather than a supermajority vote, cannot be reversed by the legislature without subsequent voter approval of the reversal. This, it seems to me, makes them quasi-constitutional, or puts them into a curious middle ground between the state constitution and state legislation.