WHY THE CALIF. SUPREME COURT REPUDIATED ISSUANCE OF SSM LICENSES: Vikram David Amar

...To begin with, the court repeatedly and explicitly steered well clear of expressing any views on the "ultimate" question in the California gay marriage controversy -- whether the statutes that define marriage as only between a man and a woman are consistent with California's constitution. ...

In contrast to its careful avoidance of the issues described above, the court said a lot--perhaps too much--about the limits on executive power that made Mayor Newsom's actions in directing the issuance of same-sex marriage licenses untenable. Again, Newsom claimed he had the power to disregard state statutes he believed to be unconstitutional under the state and/or federal constitutions.

In rejecting Newsom's claim, the court might have said simply that local executive officials -- such as mayors -- who are part of a statewide hierarchical system lack such power. But at times in its opinion, the court went further to suggest that no executive official -- local or supreme -- could ever have such a power. ...

Why does the California Supreme court's disparagement of the capacities of all executive officials to make constitutional judgments matter? Because it is but one part of a pervasive court-centric perspective that has been repeatedly reinforced by the U.S. Supreme Court, and that is now internalized by all the key institutional actors, including high-level executive officials themselves. ...

Nor was this broad repudiation of executive power necessary to resolve the Newsom case. As I have explained in an earlier column, a local California Mayor simply does not have the power to independently disregard statewide statutes, even if higher level executive officials -- like a Governor -- might. The court could easily have rested its opinion on this far narrower ground. ...

To some extent, the majority's instinct is right: Until and unless California statutes defining marriage as between only men and women have been judicially invalidated, the San Francisco same-sex licenses cannot have any legal force--the persons who hold them cannot now enjoy any of the legal benefits distinctive to the institution of marriage. So couples possessing these licenses should know--and the California Supreme court was right to remind them--that these licenses should not currently be relied upon.

But the court went a step further. It said that even in the event that California marriage statutes are later invalidated by appellate courts, same sex couples would have to go through the marriage process (again) in order to obtain marital benefits.

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posted by Eve at 1:18 PM | link

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