Wednesday, May 26, 2004
The Gay Marriage Hoax
When San Francisco Mayor, Gavin Newson and his clerks began issuing gay marriage licenses earlier this year, the most shocking thing about it was that nobody suggested that he should be put in jail for breaking the law. Indeed, nobody even acknowledged that he had committed a crime, or at least an act of civil disobedience, for which the proper penalty would have been imprisonment. Instead, the Mayor’s actions started a heated and lengthy debate over the pros and cons of so-called gay marriage. There are inherent flaws in a pro-gay marriage policy, such as the implication that men and women are the same, and that therefore it does not matter whether one marries a man or a woman. However, putting policy issues aside, one must first determine the legality of both the current marriage statutes and the procedures by which Mayor Newson sought to institute gay marriage.
On Tuesday, in an unprecedented case, the California Supreme Court heard legal arguments concerning gay marriage. The attorney representing the City of San Francisco, Ms. Therese Stewart, argued that every branch of government, including the executive branch, must initially make constitutional interpretations before acting. She insisted that the Mayor’s first priority is to remain faithful to the United States Constitution, and that because he, in good faith, believes that “discrimination” or exclusion of homosexuals from marriage violates the equal protection clause, he was right to break the California Statute prohibiting homosexual marriage, and he was right to ignore the passage of proposition 22 whereby both the California legislature and the voters of California said “no” to gay marriage.
There were several legal options that the Mayor could have utilized to determine whether or not California law was constitutional. For example, he could have filed a declaratory action in court, asking the court for a determination as to whether or not the statute in question was permissible. He also could have asked the State Attorney General to issue an opinion regarding the statute’s permissibility. Finally, if in good conscience, Mayor Newson felt unable to issue marriage licenses to opposite sex couples because he felt it discriminated against same-sex couples, he could have refrained from doing so, and then waited for the courts or the legislature to address the issue. However, Mayor Newson chose none of these alternatives. Instead, the Mayor, one person out of the entire California population, took it upon himself to interpret the constitution, to rewrite the law as he personally saw fit, and to implement the new “law” by issuing gay marriage licenses. Ms. Stewart was hard-pressed to adequately answer numerous questions by the Justices as to why the Mayor chose to take action to marry gay couples rather than seek a legal interpretation from the courts as he should have. She stated that he took his actions so that when the issue went to court, the controversy would revolve around “real people” rather than between the executive branch and the legislative branch of government. She also claimed that the reason he did not go to court first, was that he was concerned that if he did so, he would be placed in a position where he was charged with enforcing a statute that he personally believed was unconstitutional. (Translation: he was afraid the court would find against him, so he acted first.) Ms. Stewart was unable to produce an answer to a Justice’s question of what urgency existed causing the Mayor to issue marriage licenses to homosexuals before obtaining a court ruling. One Justice pointed out that Mayor Newson not only refused to enforce what he thought was an illegal law, but he single-handedly decided what the remedy would be. He was the judge, the legislature and the executor all in one.
Mr. Jordan Lorence, attorney representing the Alliance Defense Fund, was most persuasive. He aptly pointed out that there is no general constitutional right to marry anyone one wants to. Rather, there is a right to access marriage, as it is defined, if one meets the legal prerequisites (age, competence, gender, etc.) By definition, marriage is between a man and a woman, and there is no right to redefine it. Moreover, as previously pointed out, what occurred in the instant case was not merely executive nullification of a law believed to be unconstitutional. Rather, Mayor Newson engaged in legislative nullification by rewriting the law himself. Mr. Lorence further argued that the 4000 “marriages” which occurred in San Francisco should be deemed a nullity. Because those who were issued a license did not meet the legal prerequisites of marriage, the marriages do not need to be invalidated because it is as if they never occurred. They were null and void from inception. Moreover, it would be ludicrous to allow thousands of people to file separate law suits regarding the status of their marriage when the facts applicable to each homosexual marriage license are identical. The Mayor and his clerks warned the gay couples that their marriage licenses might not be valid. Mr. Lorence pointed out the irony and unfairness of parties who obtain a marriage license illegally and then look to the same legal system they disregarded, asking it to uphold and respect their marriage licenses.
Mr. Timothy Muscat, the California Attorney General, who represented the plaintiff in this case, pointed out that the issue before the court is a very narrow one. It is not, a question of whether or not the marriage statute is constitutional. Rather, the question is who makes the determination of constitutionality? It is well-established law that it is the role of the judiciary to make constitutional and statutory interpretations of law. The Mayor of San Francisco was acting in violation of the principle of the separation of powers. As we all know, checks and balances exist in this country because the judiciary, the legislature, and the executive branch all act separately and have checks on other branches. Additionally, Mr. Muscat well made the point that voters have a right to assume laws will be enforced and that local officials will not redraft or ignore state statutes. The legal presumption is that California statutes are constitutional. The Mayor acted on the erroneous presumption that the law was not constitutional.
As several justices pointed out, the ramifications of one man acting on the basis only of his own beliefs are severe, however sincere those beliefs might be. What if a local official believed the states laws on gun control were illegal, would it be permissible for him to unilaterally announce that it is legal to disregard state law? This could obviously happen on any number of subjects, in contravention to the proper legal processes for amending current law. The California Attorney General’s main argument is that the judiciary branch is the ultimate arbiter of what is or is not constitutional. Because he is correct in his legal analysis, it is very likely that as the plaintiff in this case, he will win in seeking to uphold current California law. Those claiming they hold a valid homosexual marriage in the State of California will likely find themselves single once again.
Policy considerations aside, Ms. Stewart’s legal arguments in support of homosexual marriage in San Francisco were more than unpersuasive. They were laughable. They amounted to nothing more than the equivalent of “the Mayor sincerely believed that he was right, and didn’t want to take the issue to court because he was afraid the court wouldn’t agree with him.” He wanted to do what he wanted to do. Perhaps he was sincere. But he was sincerely wrong.
When San Francisco Mayor, Gavin Newson and his clerks began issuing gay marriage licenses earlier this year, the most shocking thing about it was that nobody suggested that he should be put in jail for breaking the law. Indeed, nobody even acknowledged that he had committed a crime, or at least an act of civil disobedience, for which the proper penalty would have been imprisonment. Instead, the Mayor’s actions started a heated and lengthy debate over the pros and cons of so-called gay marriage. There are inherent flaws in a pro-gay marriage policy, such as the implication that men and women are the same, and that therefore it does not matter whether one marries a man or a woman. However, putting policy issues aside, one must first determine the legality of both the current marriage statutes and the procedures by which Mayor Newson sought to institute gay marriage.
On Tuesday, in an unprecedented case, the California Supreme Court heard legal arguments concerning gay marriage. The attorney representing the City of San Francisco, Ms. Therese Stewart, argued that every branch of government, including the executive branch, must initially make constitutional interpretations before acting. She insisted that the Mayor’s first priority is to remain faithful to the United States Constitution, and that because he, in good faith, believes that “discrimination” or exclusion of homosexuals from marriage violates the equal protection clause, he was right to break the California Statute prohibiting homosexual marriage, and he was right to ignore the passage of proposition 22 whereby both the California legislature and the voters of California said “no” to gay marriage.
There were several legal options that the Mayor could have utilized to determine whether or not California law was constitutional. For example, he could have filed a declaratory action in court, asking the court for a determination as to whether or not the statute in question was permissible. He also could have asked the State Attorney General to issue an opinion regarding the statute’s permissibility. Finally, if in good conscience, Mayor Newson felt unable to issue marriage licenses to opposite sex couples because he felt it discriminated against same-sex couples, he could have refrained from doing so, and then waited for the courts or the legislature to address the issue. However, Mayor Newson chose none of these alternatives. Instead, the Mayor, one person out of the entire California population, took it upon himself to interpret the constitution, to rewrite the law as he personally saw fit, and to implement the new “law” by issuing gay marriage licenses. Ms. Stewart was hard-pressed to adequately answer numerous questions by the Justices as to why the Mayor chose to take action to marry gay couples rather than seek a legal interpretation from the courts as he should have. She stated that he took his actions so that when the issue went to court, the controversy would revolve around “real people” rather than between the executive branch and the legislative branch of government. She also claimed that the reason he did not go to court first, was that he was concerned that if he did so, he would be placed in a position where he was charged with enforcing a statute that he personally believed was unconstitutional. (Translation: he was afraid the court would find against him, so he acted first.) Ms. Stewart was unable to produce an answer to a Justice’s question of what urgency existed causing the Mayor to issue marriage licenses to homosexuals before obtaining a court ruling. One Justice pointed out that Mayor Newson not only refused to enforce what he thought was an illegal law, but he single-handedly decided what the remedy would be. He was the judge, the legislature and the executor all in one.
Mr. Jordan Lorence, attorney representing the Alliance Defense Fund, was most persuasive. He aptly pointed out that there is no general constitutional right to marry anyone one wants to. Rather, there is a right to access marriage, as it is defined, if one meets the legal prerequisites (age, competence, gender, etc.) By definition, marriage is between a man and a woman, and there is no right to redefine it. Moreover, as previously pointed out, what occurred in the instant case was not merely executive nullification of a law believed to be unconstitutional. Rather, Mayor Newson engaged in legislative nullification by rewriting the law himself. Mr. Lorence further argued that the 4000 “marriages” which occurred in San Francisco should be deemed a nullity. Because those who were issued a license did not meet the legal prerequisites of marriage, the marriages do not need to be invalidated because it is as if they never occurred. They were null and void from inception. Moreover, it would be ludicrous to allow thousands of people to file separate law suits regarding the status of their marriage when the facts applicable to each homosexual marriage license are identical. The Mayor and his clerks warned the gay couples that their marriage licenses might not be valid. Mr. Lorence pointed out the irony and unfairness of parties who obtain a marriage license illegally and then look to the same legal system they disregarded, asking it to uphold and respect their marriage licenses.
Mr. Timothy Muscat, the California Attorney General, who represented the plaintiff in this case, pointed out that the issue before the court is a very narrow one. It is not, a question of whether or not the marriage statute is constitutional. Rather, the question is who makes the determination of constitutionality? It is well-established law that it is the role of the judiciary to make constitutional and statutory interpretations of law. The Mayor of San Francisco was acting in violation of the principle of the separation of powers. As we all know, checks and balances exist in this country because the judiciary, the legislature, and the executive branch all act separately and have checks on other branches. Additionally, Mr. Muscat well made the point that voters have a right to assume laws will be enforced and that local officials will not redraft or ignore state statutes. The legal presumption is that California statutes are constitutional. The Mayor acted on the erroneous presumption that the law was not constitutional.
As several justices pointed out, the ramifications of one man acting on the basis only of his own beliefs are severe, however sincere those beliefs might be. What if a local official believed the states laws on gun control were illegal, would it be permissible for him to unilaterally announce that it is legal to disregard state law? This could obviously happen on any number of subjects, in contravention to the proper legal processes for amending current law. The California Attorney General’s main argument is that the judiciary branch is the ultimate arbiter of what is or is not constitutional. Because he is correct in his legal analysis, it is very likely that as the plaintiff in this case, he will win in seeking to uphold current California law. Those claiming they hold a valid homosexual marriage in the State of California will likely find themselves single once again.
Policy considerations aside, Ms. Stewart’s legal arguments in support of homosexual marriage in San Francisco were more than unpersuasive. They were laughable. They amounted to nothing more than the equivalent of “the Mayor sincerely believed that he was right, and didn’t want to take the issue to court because he was afraid the court wouldn’t agree with him.” He wanted to do what he wanted to do. Perhaps he was sincere. But he was sincerely wrong.
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