My new New Republic column is online. It discusses both the odd understanding of separation of powers in the FMA’s impossible attempt to ensure that only legislatures can create civil unions, and the new kind of intrusion on federalism that a federal command to construe state constitutions in a particular way would represent.
See also: Lawrence Solum’s judicious response to my post yesterday, and Jonah Golderg’s new column on gay marriage and federalism. I don’t share Jonah’s fatigue with the issue, but I do share his basic sentiments about the FMA, federalism, and the San Francisco story.
One question about Lawrence’s post– and this might be a question to my lawyer co-bloggers as well. He writes:
City officials are not state officials, and therefore are not bound by the provision of the State Constitution that forbids state officials from making unilateral constitutional interpretations. Cities are not administrative departments of the State of California–they are independent political entities that are subject to state law in much the same way that corporations are subject to state law.
This doesn’t sound right to me, unless California’s constitution specifically says so. As I understand it, the basic rule is that municipal governments– while they may not be ‘agencies’ of the state government– are entirely creatures of the several states. They can be made and unmade at will by the state governments, which even in-state-chartered private corportaions ordinarily can’t be. They are not independent political entities in any juridical sense, even when a given city actually predates the state that it’s in. They don’t have the ‘dignity’ that Scalia and Thomas insist states have in the constitutional order; they don’t have the capacity to stand against the state legislature that states have to stand against Congress. They often have a great deal of effective political power, but they have neither the rights of state-chartered private entities like corporations and universities, nor the powers of states in a federal system.
UPDATE: Asked and answered, by voluminous e-mail. What I said above is mistaken, at least as a matter of California law. Cities do have constitutional status in California; they are not mere creatures of the legislature. Between that fact and Eugene’s arguments above and below, I guess I’m now persuaded that city officials aren’t bound by the California constitutional rule against state administrative agencies making unilateral constitutional interpretations.
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