AP @ San Jose Mercury News
Calif. Supreme Court voids gay marriages in San Francisco

SAN FRANCISCO - The California Supreme Court on Thursday voided the nearly 4,000 same-sex marriages sanctioned in San Francisco this year and ruled unanimously that the mayor overstepped his authority by issuing licenses to gay and lesbian couples.

In February I remember all of the happiness when the Mayor decided to allow same sex marriages in San Francisco. I had friends who were married that day and even saw the line of happy couples lined up at City Hall. At the time Dan Gillmor voiced concern that Mayor Newsom had overstepped his the bounds of his executive power when he declared a state law prohibiting same sex marriages unconstitutional. Larry Lessig chimed in and wrote that at times the executive must push those bounds if they believe something to be genuinely unconstitutional. The last paragraph in Lessig's post has an important caveat.
One critical caveat: The rule of law requires some coordination. So if a court decides that a law is constitutional, while an executive has the right to disagree, and even push to have the decision changed, it is important that the executive follow the law at least with respect to that case.
...Thus, if California courts decide the marriage law is not unconstitutional, then Newsom should then obey that law as ultimately interpreted.

8 Comments

Same sex marriages are currently legal in the Netherlands, Belgium, Ontario, British Columbia, and Massachusetts. This is a pitifully small list and of little comfort to all those who have had their big day trashed by the State. Some of those couples had been waiting decades to get hitched.

It's a sad day for us all.

You push the bounds LEGALLY. Which the SF mayor did not do and the courts were right to smack it down and nullify the marriages.

Joi,

I must respectfully disagree with you. Homosexual marriage (state sanctioned or not) is wrong for a number of reasons. If this issue were placed before the American people in a referendum, it would never pass.

Instead of doing what is illegal, I suggest people protest and work within the system to change the law.

I would disagree with the actions of our mayor, because he is sworn to uphold the law. Unless he is willing to lose his office, he shouldn't challenge state law. He should have asked the S.F. district attorney to file suit against the limits on marriage. He could have led protests. There are a number of ways to change things.

In fact, it was the legal system that worked (or didn't) in Mass. If you consider the convoluted system they have for popular referendum, it takes almost three years for the public to vote on an issue. So, it could be argued that their system has a weakness.

Still, I also think what makes a Republic unique is its protections of minority / unpopular rights. This helps protect expression of ideas -- very important to me.

In the end, this should have been a Constitutional issue, and not a state-by-state issue, which is going to create a mess for people. What happens when a member of a married gay couple are asked to transfer from S.F. or Massachusetts to a state with no protections? Will he or she refuse the promotion?

What about domestic partnership rights? Those are gone, in Massachusetts, because many companies are told it will now be seen as discriminating against heterosexual couples. These companies are telling gay couples they must be married or lose their existing benefits.

In the end, this should be a national, Constitutional matter. Until it is, it's yet one more thing to create "Red/Blue" divisions in this country.

And, if the "national" law were something I thought was wrong, I'd keep complaining about it. I'll never understand Clinton signing the "Defense of Marriage Act" -- which might be used to challenge the Massachusetts ruling, since federal supersedes state law. What will happen to the marriages, then? Are they null-and-void?

This is clearly the newest civil rights battle, but with a new set of lines. This is going to be a long, confusing period.

Mike. You should go and read Lessig's post on this. It is with the role of the executive branch to question the constitutionality of laws and there are precedents.

Pretty disconcerting that I decided to run with my point before reading Mr. Lessig's post. Hmm. I will read it now. Thank you for taking the time to discuss this issue.

what a pity.

There is sanity in California after all!

Thank GOD!

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