California Penal Code sec. 359 (thanks to Xrlq, who has more comments, for the pointer) provides:
Every person authorized to solemnize marriage, who willfully and knowingly solemnizes any incestuous or other marriage forbidden by law, is punishable by fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the County Jail not less than three months nor more than one year, or by both.
Does that mean that city officials who solemnize gay marriages are acting not just contrary to law, but also criminally? (Lots of actions may be against the law but not criminal; they might be remediable only through damages in a civil lawsuit, or through an injunction or a writ of mandamus.)
Hard to tell for sure, even if the officials sincerely believe the argument that the California Constitution guarantees to gays an equal right to marry. Though ignorance of the law is usually no excuse, when a statute refers to “willfully and knowingly . . . [violating the] law,” courts generally (though not always) treat this as limiting the statute to people who violate what they know to be a legal duty or constraint. See, e.g., Liparota v. United States (1985). Moreover, since “law” generally refers to constitutional principles as well as to statutory rules, I think that if the solemnizers sincerely (even if wrongly) believe that gay marriages are not actually “forbidden by law” (since the statutes that purport to forbid them are unconstitutional and thus not really law), they wouldn’t be committing a crime.
On the other hand, at least to tax law, the Supreme Court has held that belief that the law is unconstitutional doesn’t keep the violation of the law from being willful. See Cheek v. United States (1991). The language in that statute was somewhat different than that in the California statute or the statute at issue in Liparota, so it’s not clear how squarely on point the Cheek decision would be; but it does at least suggest that the solemnizers might be guilty even if they sincerely believed the male-female-marriage-only requirement was unconstitutional.
Note, though, that all this is based on my knowledge of federal statutory construction principles. I think that California courts take a similar view, see, e.g., People v. Hagen, 19 Cal. 4th 652, 660-66 (1998). Cal. Penal Code sec. 7 defines willfully as: “The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” But as Hagen pointed out, the definition is limited by the proviso “unless otherwise apparent from the context”; the language “willfully and knowingly solemnizes any . . . marriage forbidden by law” seems to contain such other context, since someone who believes the marriage isn’t forbidden lacks the purpose or willingness to solemnize a forbidden marriage. Note also that, since these are questions of statutory construction, courts may reach different results depending on the particular text, context, or history of the statute.
Finally, all this is really academic, unless a prosecutor actually decides to prosecute the officials involved — and I somehow doubt that this will happen.
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