Friends of mine who have been waiting for a long time were finally married as San Francisco allowed same-sex marriages. It was a day of joy. We drove by City Hall here and saw a huge line of people waiting to get married. This is a great thing. Dan Gillmor has sparked an interesting discussion about the legal ramifications of the Mayor's decision and Lawrence Lessig comments on this.

Lawrence Lessig
Presidents’ Day lesson: the mayor’s duty

The Mayor of San Francisco has decided that a state law is unconstitutional under the state constitution, and has therefore ordered city clerks to disobey the law and obey the constitution. This troubles my friend Dan Gillmor, who on last count was right about everything else. And it is an action by a mayor, who on last count was wrong about a bunch of very important things. So who’s right now? I try to answer that in the extended essay that follows.

24 Comments

One thing you should ask yourself about this - and I'm not making a judgement either way -

When Judge Moore (Alabama) decided to keep the 10 Commandments stone in his court, his argument was very, very much the same

In both cases, a government official decided that his personal morality trumps that of the current legal structure

Why is one right, and the other wrong? Bear in mind that the arguments used by the mayor of SF could be used for something you find heinous every bit as easily as they are being used for this purpose.

It would be far, far better to work inside the system for this kind of thing.

"It would be far, far better to work inside the system for this kind of thing."

I don't think so. Posting the 10 Commandments is not a civil rights issue; it's a religious, morality issue.

The mayor is doing what many great outspoken individuals have done before him. He's sitting at the front of the bus.

It could damage his career, and he knows that. He doesn't have a party to cater to, and the people can vote someone else in next year. But he has global media coverage, and it comes with perfect timing for gay issues.

Congratulations and kudos to him.

Andrew, with all due respect you really should realize that the mayor of San Francisco is not taking any kind of a political risk by supporting gay marriage.

Really dude, it's not Des Moines, Iowa we're talking about, and yes, it's no different from what Judge Moore did.

Richard,

I understand he might not be taking any political risk at all. I used the word "could."

I am praising him for standing up for a civil rights issue. Antidisirregardless, it's getting a lot of attention.

What Judge Moore did was not a matter of civil rights. It was his personal, moral preference.

Yes, Mayor Newsom has a personal, moral preference when it comes to gay marriage, but it is a matter of granting rights to a group of people that deserve it - not sticking a slab of stone on public property.

I think there's a rather large difference between a specific religious icon being displayed permanently in a public building meant to serve everyone in a community regardless of their religious persuasion and a civil ceremony performed by a city clerk.

The thing that seems to get lost first in these secular/non-secular conflicts is the very real difference between ethics and morality.

Ethics needs to be foremost in civil law, not morality.

What he's really doing is instructing the city clerks to acknowledge the marriages as they would any other. The real issue is whether the special rights (inheritance, next-of-kin etc) that come with marriage will stand up in court.

Even if they don't, I suppose some people will be pleased that their relationship was acknowedged by a public body, even if only for a short time.

Let's see, so if gays think that their struggle to get legally married is a "human rights" issue, who's to prevent people who want to get married to their children? It's sad to see these arguments skirt around the issue and discuss picky points of constitutional laws. Why is it taken as a given in all these arguments that it is moral to allow gay marriage?

Talk about the silence of the commons! This is a thousand times more offensive than that picture Marc Canter put up, but none of the bloggerati seem to have the guts to disagree (publicly).

Well, let's see....

When a conservative Mayor orders the police department to stop citing stores for failure to run gun checks on second amendment grounds, we'll see if you still support a mayor superseding the LAW.

By the way, someone in another reply said that Gavin Newsom didn't have a "party to cater to"... Not true - Gavin Newsom is a Democrat.

Judge Moore defied a court order by sticking his ornament in the place where he worked, and he took the consequences.

Gavin Newsom defied a law passed by the people of California through the initiative process, and thus flipped the bird to the very concept of democracy.

So you're right, Andrew, there's no comparison between the two of them -- Newsom is much, much worse.

Gavin Newsom has ignored a law passed by the California voters because he believes that it is wrong and wants to force a court challenge. People ignore laws all the time. When they do, it is up to the law enforcement community or the courts to stop them. Laws are frequently changed or ruled unconstitutional after they have been challenged so I think his strategy is fully in line with the US legal process, in both letter and spirit.

Defying a court order is a different deal though. Almost no one defies a court order the way Judge Moore has. Try it an you'll get slapped with a contempt charge.

Chris,

Yes, Californians voiced their view in the Prop 22 election a few years back.

However, I don't think direct democracy (proposition voting) is the most amazing pillar of democracy. Our forefathers set out for a smaller, more informed few to create the laws for the people.

When slavery was repealed, Americans weren't very supportive, either. It was a case of the executive ignoring public opinion to do what was right.

And Jim, I suppose you could say African-Americans don't deserve equal rights because of their skin color. We're discussing a like trait - gender - and not the preposterous idea of a parent marrying a child.

There are obvious legal, health, and logistical problems with a parent marrying one's child - but I can see none with a man marrying another man instead of a woman.

Mike, I know Newsom is a Democrat. But in my mind city mayors don't have the kind of impact on (or demands of) a party as senators and representatives, etc.

Whether you think homosexuality is "immoral" or not, and whatever your personal views on gay marriage are, the institution of marriage is something different groups define differently. Its meaning can be very personal.

How is it the government's role to allow one group access to this institution? Why should the government do the job of a church or group?

Yes, I know the government is involved in marriage in the sense that it provides benefits, adjusts taxes, and changes ownernship definitions. But as long as a married couple of the same gender does not harm any of the aforementioned, who is to tell them they are not allowed to commit a lifetime of love to one another?

I could go on with more views, like the fact that heterosexual couples have almost completely destroyed the meaning of marriage, but I think it's important to stay on-topic and not confuse personal views.

I meant to address the first point to Richard, not Chris. Sorry!

Andrew, let's say the marriage was between a mother who's 70 (post-menopausal, unable to give birth) and a son who's 50 (done with his developmental period, living independently). What are the "legal, health, and logistical problems" then? (Oh and, legal problem? That's what the whole discussion's about!)

What's so "preposterous" about this and not about gay marriage?

Note, I'm not trying to advocate marriage between parents and children, I'm trying to show the absurdity of gay marriage. The word itself means literally nothing if it's perverted to be something between two people of the same gender.

andrew, i got your back here. jim, i've already had this exact same discussion elsewhere on the interweb, do all y'all get together to come up with the same argument? here's my question, gay couple, relatives, whomever, if a marriage is between two consenting adults, especially two whose marriage will not result in a child likely to have birth defects because the parents are too closely related, who is that hurting?

i'm not saying i condone marriages between an elderly mom and her son (probably the only case in which we can insure a lack of progeny), but how would such a marriage effect you, or even the status of your marriage (if you are married). i'd say, whether we claim religious law or just simple morals, that we regulate against 1st and 2nd generation relatives from getting married because of the highly likelyhood of non-viable offspring. since we only have a single minimum age (that of legal adulthood) for marriage, deregulating the marriage of close relatives is not realistic.

so now to the actual task at hand, gay marriage. let's start with the same argument: when 2 gay adults get married, how does that harm you or your marriage? these couples are not effecting you in any criminal manner. at best you could claim they were diluting your idea of marriage, but if you use the word "sanctity" then you've made this a religious issue, which you cannot create laws for here in america.

since it was brought up as a separate issue, believe it or not, gay marriage passes the 10 commandments test. look carefully, other than the commandments that directly specify monotheism as superior (worshipping false idols, etc), the commandments basically say my rights stop where your nose begins. that is, if i do something and it harms you or your loved ones in any way, i've violated your rights. now i ask you, how does me (i'm a gay man, in SF no less) getting married harm you or your loved ones?

Jim,

Eric responded well in that your views on the "absurdity" of gay marriage should have nothing to do with the discussion about whether or not to legally allow it.

I'm a straight man in a committed relationship with a woman. I would likely never marry a man. But I value other individuals' rights to morally/religiously/spiritually define marriage as they see fit.

It seems clear to me why close relatives, even an infertile woman and her well-established son, should not marry. The promotion of generations and the legal definitions of their relationship to one another (next of kin issues, parental roles in adoptions) must be preserved for functional government.

One instance of a marriage between mother and son (or how about mother and daughter!) would not harm the society, but it would harm the family. Continuous such marriages would harm the society. The government must rule when harms can exist.

So what harm does a gay marriage have on my committed relationship with my girlfriend? What harm does it have on Eric's sexual preference, or yours? On our economy?

Naturally the next argument I expect is that gay marriage harms the society because - since it's supposedly immoral - our children will learn bad values.

But I still maintain that the government should not decide this. Gays will continue having their relationships, they will continue to march in pride parades (which, if you have never been, are a treat), they will continue to pride themselves on their sexuality. They'll still get media attention, write books, and contribute to the society.

So unless the government supresses every group it (subjectively) considers immoral in some unprecedented, reactionary manner, you and every other American will have to live with groups of people you don't like. There will be always be groups of people that offend others. How are we to know some gay people are not offended by straight people? And those white-robed pieces of garbage still have a right to speak their minds.

Morals are relative - to individuals, to societies, to time periods.

I bet my life that Americans will reflect on the gay right period and laugh at ourselves for our masked intolerance. Since I'll be dead by then, I've got nothing to lose.

A lot of the arguements used to justify a ban on Gay marriage were also used to justify various state bans on interracial marriage.

http://www.worldpolicy.org/globalrights/sexorient/1997-marriage.html

Both Judge Moore and Newsom disobeyed existing law because of what they see as a "higher morality". Boil it down, and that's what you get. Most of you (here, at least) agree with newsom, and thus call it "noble civil disobedience"

In what real way does it differ from what Moore did? He was practicing civil disobedience as well; just in a cause that the media (and people here) disagree with. Lessig has some nice legal rationalizations for it, but there's really no escaping what's going on - both efforts are civil disobedience based on reference to a "higher moral authority".

For Moore, that's g*d. For Newsom, it's "civil rights". The only real difference is that the latter is a secular call. Other than that, the two acts are identical.

It seems to me, when we as a society talk about marriage, we are using the same word to refer to two different institutions. The first, is a spiritual union of two people recognized by a particular religious group. The second is a civil contract between two adults that creates, for lack of a better word, a type of corporation for doing business, paying taxes, acquiring property or whatever. The government should not be involved in sanctioning the first institution in any way. The second should fall under the same regulations as any other civil contract. If you are legally able to enter into a contract, then you should be able to enter into the civil contract we call marriage.

It's clear the reason so many people get upset about the civil marriage is because they associate it with the religious marriage and so it grates on them on a moral basis. So why not take the word "marriage" completely out of the civil contract. Call it a civil union or whatever you like and make the criteria for entering into it the same as any other contract and therefor eliminate the gender issue all together.

If same sex couples still want to get married they can take it up with their church. Which is where the issue should be discussed anyway.

I'm clearly missing something in this whole arguement. It's always getting brought up as a civil rights issue and I just don't see what civil rights gay couples are being denied. The right to vote? The right to own property? Cohabitate? The right to bear arms, free speach, what? Certainly two men can purchase a home together. There is nothing stopping that. Is it the right transfer property upon death? A will could fix that. Married couples recognized today are advised to have those anyway. If it's recognition for dependant health insurance through an employer, I don't know that I see that as a right. I don't think a company is required to provide health insurance for spouses, as my company proved this year. Is it the right to pay taxes together? In the 8 years I've been married I've payed more in taxes than two people living together with the same income as me but not married. There is a right I'd be happy to forfeit. If the civil right in question is the right to get married, well then I guess I agree since I've already asserted that the civil contract marriage should be changed in name and gender issues should be removed.

On sort of an aside. If the gay community wants to have their marriages recognized I don't see why they don't just start fulfilling the criteria for common law marriage based on the state in which they reside. I'm no lawyer, but it seems to me if a gay couple presents themselves as married and acts as if they are married and is recognized by their immediate community as married and meets all the criteria for common law married then it would be a lot harder for the government to deny they are in fact married than to deny them a marriage license up front.

Larry,

You explained the two kinds of marriage well, I think. For the most part, I think legal marriage is silly, and the government should not bother with it.

Yes, gay individuals have those rights you mentioned. But they don't get the rights married, straight couples get. Sure, the rights, bonuses, or penalties of marriage might be silly, but why then should we only allow them to straight couples? This is not a discussion of marriage rights, but of access.

James,

You wrote "In what real way does it differ from what Moore did?" I feel like I have answered this several times.

California currently denies legal rights to a group of people based on a trait. This is discrimination. Mayor Newsom defied law to fight this discrimination.

Judge Moore defied law to advertise a religious code that he endorses in a public facility, one in which many other people do not endorse or appreciate the code.

Moore put his personal convictions (faith in Christianity, believe in the 10 Commandments) above the people. It had nothing to do with discrimination or marriage rights or anything. It was a church-and-state issue.

Newsom: Fought discrimination.
Moore: Forced his own agenda.

Two different circumstances entirely.

andrew, i fear no matter how many times you say it, james will not stop believing this is the same issue. after all both religious practice as well as sexual orientation are considered to be protected by the constitution.

so james, lets put it a different way. the constitution protects religious practice, but it also provides for the separation between church and state. if judge moore only posted the commandments that overlapped with us law, i doubt there would have been quite the furor. but the first 4 commandments clearly bring god into the mix, and so church was brought into what was supposed to be a state institution. judge moore did not separate church and state, and so violated the consitution he was supposed to uphold.

gavin newsom did not violate the constitution. current interpretation of the CA state constitution provides for equal rights of all people, including gays. he did ignore a law, a proposition, that was voted into being by the people of this state (but not the people of this city. prop 22 failed miserably in SF county). however he's trying to show that law violates the constitution of this state by the courts' current interpretations. we will shortly see whether he was right.

Prop. 22 really frightened me. Propositions frighten me. I'm sure my fair, conservative city of San Diego had a big part in passing it.

Eric,

Please don't call it the interweb. That's so, very wrong.

:-)

Newsom is in defiance of the will of the people (majority) and he should be arrested for his actions. Period.

I never have been active politically but the kind of crap that is going on in San Francisco has been a "call to action" for me. Renegade leaders and judges have been trying to throw out traditional family values for years and replace these values with their "progressive agenda". This has to stop.

I think you are beginning to hear a loud roar from the "silent majority" and the roar will get louder as gay activitist leaders continue to take steps like Newsom is taking.

Conservative leaders and groups are finally standing up and fighting for America and traditional family values.

Jeff,

I'm not sure why I'm responding to you, because no one will see the comments on this old post, and because you completely ignore every argument I have made: that in some cases it's important to defy the majority; that in this case it's important to defy the law to end discrimination; that it's not up to the government to define what's moral for us.

If the Republicans want such tiny government, why do they force their personal views onto everyone else - especially at the federal level?

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