SF MAYOR: Reactions roundup, part one--different perspectives from what may broadly be called "the Right"

[More soon.]

Stanley Kurtz: And again I say to conservatives, accept what is happening in San Francisco without concerted opposition and abandon hope of ever curbing activist judges or officials on any other issue. Write your representatives in support of the Federal Marriage Amendment and/or in protest of what is happening in San Francisco.

Kurtz also has a sharp-tongued rebuke for Andrew Sullivan in re SF.

Jonah Goldberg: ...But, I should also point out that from the stories I've seen, a great many (I don't know if it's a majority or not) of the couples getting "married" in San Francisco are from out of town and out of state. So when Andrew [Sullivan] says their love and commitment are being solemnized by their own government he's factually wrong. These couples are having their love and commitment solemnized by "a government" -- illegally. This isn't a trivial point, since Andrew and others -- including me -- place so much importance on Federalism and the ability of people to determine the rules for their own communities. Well, the couples from North Carolina aren't moving to San Francisco. They're grabbing some paperwork to press their case in Raleigh or Durham. That's a different scenario.

Eugene Volokh: ...I agree that generally government officials ought to obey the law, even when they rightly believe that the law is wrong; that is part of what we think of as the Rule of Law. ...

But part of American law is the principle that unconstitutional laws are not laws at all. ...As I understand it, Mayor Newsom's position is that California's male-female-only marriage law -- which is only a statute, albeit one that was implemented by a voter initiative -- violates the California Constitution. If he's right, then refusing to marry same-sex couples (thus complying with the invalid state statute) would be violating the law, because it would be denying people the equal treatment that the constitution allows them; agreeing to marry same-sex couples (thus violating the invalid state statute) would be upholding the law, because it would be complying with the constitutional command. His actions are, I suspect, partly calculated to create a test case that would lead the California Supreme Court to decide the matter.

It seems to me that this sort of conduct is permissible, and is in fact the way constitutional law is often developed.

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Jacob Levy: ...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.

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posted by Eve at 3:53 PM | link

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