So holds the California Supreme Court, in an opinion that I’m just starting to read. Here’s Howard Bashman’s (How Appealing) summary:
The vote on declaring previously performed marriages void was 5-2; the court was unanimous in holding that the Mayor of San Francisco lacks the power going forward to allow same-sex couples to marry in violation of existing California law. As a small consolation, same-sex couples whose marriages are dissolved as a result of today’s ruling are entitled to a refund, upon request, of all marriage-related fees that they have paid.
And here’s the court’s introduction:
We assumed jurisdiction in these original writ proceedings to address an important but relatively narrow legal issue — whether a local executive official who is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional.
In the present case, this legal issue arises out of the refusal of local officials in the City and County of San Francisco to enforce the provisions of California’s marriage statutes that limit the granting of a marriage license and marriage certificate only to a couple comprised of a man and a woman. The same legal issue and the same applicable legal principles could come into play, however, in a multitude of situations. 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. In like manner, the same legal issue would be presented if the statute were one of the environmental measures that impose restrictions upon a property owner’s ability to obtain a building permit for a development that interferes with the public’s access to the California coastline, and a local official, charged with the ministerial duty of issuing building permits, refused to apply the statutory limitations because of his or her belief that they effect an uncompensated “taking” of property in violation of the just compensation clause of the state or federal Constitution.
Indeed, another example might illustrate the point even more clearly: the same legal issue would arise if the statute at the center of the controversy were the recently enacted provision (operative January 1, 2005) that imposes a ministerial duty upon local officials to accord the same rights and benefits to registered domestic partners as are granted to spouses (see Fam. Code, § 297.5, added by Stats. 2003, ch. 421, § 4)), and a local official — perhaps an officeholder in a locale where domestic partnership rights are unpopular — adopted a policy of refusing to recognize or accord to registered domestic partners the equal treatment mandated by statute, based solely upon the official’s view (unsupported by any judicial determination) that the statutory provisions granting such rights to registered domestic partners are unconstitutional because they improperly amend or repeal the provisions of the voter-enacted initiative measure commonly known as Proposition 22, the California Defense of Marriage Act (Fam. Code, § 308.5) without a confirming vote of the electorate, in violation of article II, section 10, subdivision (c) of the California Constitution.
As these various examples demonstrate, although the present proceeding may be viewed by some as presenting primarily a question of the substantive legal rights of same-sex couples, in actuality the legal issue before us implicates the interest of all individuals in ensuring that public officials execute their official duties in a manner that respects the limits of the authority granted to them as officeholders. In short, the legal question at issue — the scope of the authority entrusted to our public officials — involves the determination of a fundamental question that lies at the heart of our political system: the role of the rule of law in a society that justly prides itself on being “a government of laws, and not of men” (or women). . . .
To avoid any misunderstanding, 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. We hold only that in the absence of a judicial determination that such statutory provisions are unconstitutional, local executive officials lacked authority to issue marriage licenses to, solemnize marriages of, or register certificates of marriage for same-sex couples, and marriages conducted between same-sex couples in violation of the applicable statutes are void and of no legal effect. Should the applicable statutes be judicially determined to be unconstitutional in the future, same-sex couples then would be free to obtain valid marriage licenses and enter into valid marriages.
The second to last paragraph may be controversial, and probably should be: There’s a good argument that all government officials should have an independent duty to follow the state and federal Constitutions as they understand them — at least absent a clear court order to the contrary — and not just do what they think (rightly or wrongly) is unconstitutional simply because no court has yet held it unconstitutional. On the other hand, the California Constitution does have a special provision on this point (art. III, sec. 3.5) that supports the California Supreme Court’s position if one treats city officials as an “administrative agency,” “An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: (a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional. . . .” [UPDATE: I’ve just finished reading the opinion, and it turns out that the California Supreme Court does not directly rely on this provision, and thus doesn’t decide whether city officials are administrative agencies. Rather, the court holds that executive officials even in the absence of art. III sec 3.5 have a duty to follow statutes unless they’ve been held unconstitutional by a court (subject to a few exceptions not applicable here).]
But in any event, I think the court’s introduction is pretty effective rhetorically, both accurately describing the legal issue for readers, and defending it against some of the most obvious political criticisms. If I were writing a textbook on judicial rhetoric, I’d probably include this as a good example.
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