Executive Over-reaching Slapped Down

In February I was deeply uneasy about San Francisco Mayor Gavin Newsom’s unilateral move to issue marriage licenses to gay couples. I believe gay marriage should be legal, but that Newsom’s action was an example of executive arrogance.

So I have mixed feelings today about the California Supreme Court’s decision to overrule Newsom (SF Chronicle), because his instinct was right even if his tactics were not.


Posted by: on August 13, 2004 02:38 PM

Absolutely. If one elected government official can disobey the law as blatantly as Newsom – even for the best of reasons – what check is there on the actions of other elected luminaries or their appointees who might have other motivations?

As to the issue…why not define marriage as a religious ceremony subject to the church and have a civil contract for all couples? We have to have a state license anyway, and it is the state that vests power in a clergyman. We can combine the ceremony if the church accepts gay marriages or marriage involving divorced persons, but do the civil union if it doesn’t.

This may seem like half a loaf to some people, but it acknowledges the personal relationships and establishes the legal relationships currently denied to gays. In any case, the legal rights of the participants are based on the civil license, not the vagaries of the diocese, synod, denomination or congregation…or the political concerns about the “sanctity of marriage”.

Posted by: on August 13, 2004 04:37 PM

OK Dan, so you believe that Gay Marriage should be “legal”.

(Or, put differently, that state officials should be compelled to issue marriage licenses to same sex couples).

How do you suggest that we get there from here?

Do you believe that unelected judges, reinterpreting century-old provisions of existing state (or the federal) constitutions should apply “contemporary morality” (or the “forward looking” morality of liberal elites) to general language about “equal protection” and impose Gay Marriage?

Or do you believe that the people should have an opportunity to vote, and that their judgment should resolve the question?

If judges do act as suggested above, do you believe that a Constitutional Amendment banning Gay Marriage is an appropriate avenue for the people to respond?

As usual, Dan Gillmor is saying much, without really saying anything of substance at all.

Posted by: on August 13, 2004 06:15 PM

I too believe Gay marriage should be legal and the rights of marriage should be extended but this is for the people to decide. We live in a Democracy and the will of the people should be the final determining factor. Or an armed militia has the right to take the will of the people and remove those that don’t follow the law and impose the peoples will if a tyranical goverment (judges, executives) won’t.

I think Newsom feels he is above the law and can over rule due process. This sounds to me just like President Bush and the detainee issue’s. They are the same type of personality. Two sides of the SAME coin!!!

Posted by: on August 13, 2004 08:10 PM

Quite frankly, I’m sure that a majority of people with ballot access in the 1950’s in the south would not have voted to allow blacks the vote. The reason we have a system of checks and balances is to disallow the tyranny of the majority against the minority.
Before Howard Dean’s candidacy, and his support for civil unions (which was not a majority opinion when he started in VT but is now) got the issue in the national press I hadn’t given gay marriage one whit of thought to know whether I was against it or for it. (So bully for dean even if he isn’t the candidate)
It takes people doing outrageous things to make you think about something you’ve never thought about before, to change your ingrained habits.
So despite having gay friends, and even a cousin who is gay, and a minister, I hadn’t given it one thought to think that it was even an issue. I dunno though, I tend to think that there should be a separation – civil unions that confer all the legal incidents of what we now call marriage upon same sex marriage, same as if a hetero couple has a judge preside over them, with the option that it can also be used as a marriage license. But let individual churches decide whether they will sanctify the marriage of a same sex couple. There will be plenty that do, specially in san francisco and new york.

However, there are many traditions that have this thing about the union of the divine masculine and feminine represented by the individuals, and under this system, two people of the same sex really just can’t be married. I’m sure a creed and theology could be transformed so that makes sense, but not in just a few years, it’ll take a generation at least to make the change. And someone needs to publish a book or something making the theology explicable.

Posted by: on August 13, 2004 09:02 PM

Owen: when you have two contradictory laws, which one do you follow?

(I’m not saying Newsom was right — although I do applaud his effort — but that is the justification he claimed.)

Posted by: on August 13, 2004 09:21 PM

Sean – that’s why we have courts…to resolve questions of law and especially of constitutionality. Newsom just didn’t give the court the opportunity to rule before he challenged the law.

Joe, and Question – at one time not so long ago in this country, marriage between the races was illegal in most states, and farther back marriage for blacks was illegal and bigamy wasn’t. Go ‘way back and homosexual love was seen as just another manifestation of love, or an acceptable sexual diversion.

The point is that the law is not static or moribund…for better or worse,it changes and grows — and sometimes regresses — with changes in society. And it isn’t enough to rely on a supposedly democratic process…tyranny of the majority against an unpopular minority is terrible in its effect on both the minorities and on society at large. To ensure those rights, the courts have held many times that minorities have rights even if a majority doesn’t want to extend those rights. The exceptions to that rule are among the blackest parts of our history.

Churches have the right to set the rules of worship and membership, but equal protection of the law shouldn’t be denied on the basis that some arbitrary and transitory determination of “sin” exists. God can judge sinners without our guidance, and we all see sin differently; the law should deal with rights, and only dip into “sin” when it harms others. Neither the civil institution of heterosexual marriage nor the religious one are threatened by gay lovers making commitments; to the contrary, maybe our marriages need to learn from the experiences of gay couples who have committed to one another in spite of societal disapproval.

Posted by: on August 13, 2004 10
:06 PM

“what check is there on the actions of other elected luminaries or their appointees who might have other motivations?”

Well, there’s getting sued, jailed, or voted out of office. Works for me 😉

Newsom’s net gain/loss of votes on the gay marriage issue probably won’t affect his chances for re-election. But, let’s say he decided to order the cops not to enforce drunk-driving laws. Everybody who had a child, parent, or even a mailbox mowed down by a drunk driver would have a cause of action against the city (and possibly even him, personally: is there a lawyer in the house?). I believe it’s also possible for anyone living in the city to ask the courts for an injunction requiring him to enforce the law (iirc, there was such a lawsuit filed over the gay marriage license issue), which could land him in jail for contempt if he didn’t.

If the issue is prominent enough, you may even find Federal marshals, or the National Guard, knocking on your door to persuade you to enforce/follow the law.

Not to mention that there are a _lot_ of guns in this country, and quite a few of them are in the hands of people capable of convincing themselves that $DEITY wants them to smite “unbelievers”.

All in all, I think there are enough dissincentives out there to avert a wave of official civil disobedience that would drag us down into anarchy.

Posted by: on August 13, 2004 10:58 PM

Well folks, let’s remember that the California Supreme Court has NOT YET ruled on Gay Marriage. It ONLY ruled on the Mayor’s method.

As far as activist Judges, I’m a strict constructionist. Therefore, Marbury v Madison MUST be overturned. And, Louisiana is NOT part of the United States. It’s French Territory.

[Ooh, look! I can see smoke coming out of somebody’s ears.]

But, returning to the thread, marriage.

Historically (going back a few Millenia), marriage is a contract – that’s Civil Law. That’s where dowry’s come from.

Religion got into the act several centuries later.

As far as the Gumint is concerned, a marriage license is simply, and ONLY, a way for the Gumint to collect some money when a couple negotiate and finalize a contract (anybody remember the Stamp Act?).

So, why is the Gumint slowing down it’s own tax collection activities? I’m still waiting for an answer on that one.

My view is to eliminate marriage licenses altogether. Contract law can handle the whole situation very nicely.

Posted by: on August 14, 2004 07:51 AM

Owen: that still leaves the question, when you have two contradictory laws, which one do you follow?

By your reasoning, the only thing Newsom could have done was had San Francisco completely stop issuing marriage licenses: the state constitution disallows sexual discrimination, and also disallows same-sex marriages, and therefore no marriages can be granted (again, using Newsom’s reasoning).

In other words: in that situation, the fact is you do end up going against one of the laws. It is inevietable. For other examples: quite a few states have laws on the book outlawing abortions. The laws ARE THERE. They have not been stricken. They have, in some cases, even been passed after Roe v Wade. By your reasoning, no abortions can be allowed in those states, because even though there are two contradictory laws, it’s not allowed to break either of them.


Posted by: on August 14, 2004 09:19 AM

Dan won’t address the substantive question with a ten foot pole. (Even if he had one himself).

If you support “Gay Marriage” Dan, *how* do you propose we get there from here? Is there any path you would consider more legitimate than any other? Is there any path you would reject as illegitimate?

Or is it another leftist cause for which “the ends justify the means”, and “by any means necessary”?

When Dan is cornered, he goes quiet.

Posted by: K.G. Schneider on August 14, 2004 09:52 AM

Newsom didn’t decide “to order the cops not to enforce drunk-driving laws”; he chose to make marriage an equal right in San Francisco. He did overstep his bounds, which is often how change comes about. Through his overstepping, he gave me and my partner access to a right we believe we are already entitled to.

Newsom’s actions also contributed and gave momentum to an important national discussion. A lot of people in this country were surprised by how important this was to gay and lesbian couples, and it humanized this issue for many. Think about the articles, the commentary, and the discussion. It was very heartening to read so many editorials supporting gay marriage.

Some of us are far more empowered on gay issues now. I’ve noticed that I’m appreciably cooler about candidates who are opposed to gay marriage. I’ll hold my nose and vote for Boxer, but I pity the campaign volunteer who calls asking for my vote.

Two steps forward, one step back. I appreciate Mabel Tang’s comment after the decision that SF will keep the certificates. Someday we’ll be back to claim them.

Posted by: on August 14, 2004 04:00 PM

“We live in a Democracy”

No, we live in a constitutional republic. One fundamental element of which is a codified set of principles and limitations to help prevent “the will of the people” from turning into a tyrrany of the majority. They haven’t always worked well in the short term, but they definitely beat the alternative: just ask Socrates 😉

“I think Newsom feels he is above the law and can over rule due process.”

Why? His position from the very beginning has been that he is following the law as he understands it. And, when the court said “Stop doing that until we decide whether your interpretation is right”, he did. You can argue with whether his interpretation is valid, but he’s clearly following that interpretation, rather than rejecting the authority of the law (Keep in mind that “the law”, in this context, includes both the statutes and the Constitution).

Posted by: on August 14, 2004 06:35 PM


Ran, you’re *way* out of your league.

Newsom’s proper role, if any, was to *deny* a gay couple a marriage license — and use the full power of his office to get their case reviewed by the courts.

Executive usurpation, as here, is utterly at odds with 200 years plus of constitutional jurisprudence, and the English common law.

Far from our operating under a “codified set of principles and limitations”, we live under a malleable constitution of general language being modified beyond reason by activist judges drunken on power.

Codification — if you’d crawl out from under your desk and engage in a little learning — is a feature of civil law, not common law.

But then, it’s long been obvious you’d be more comfortable in France, Ran.

Posted by: on August 14, 2004 08:20 PM

“Executive usurpation, as here, is utterly at odds with 200 years plus of constitutional jurisprudence, and the English common law.”

Unless it’s Snippy doing it, right? In which case he is beyond the courts, because he is the Executive branch personifi
ed, right?

Posted by: on August 14, 2004 09:14 PM

I have to agree that Newsom was *technically* wrong in issuing the licenses but was morally right. The analogy of interracial marriage is most apt–both prohibitions were based on irrational hate and nothing else. History will treat both issues the same: as shameful mistakes.

Owen, I greatly admire you but have to gently disagree: churches don’t own marriage–people do. My wife and I are atheists and our marriage has nothing to do with being blessed by god. How could it, being that god doesn’t exist? 😉

Posted by: on August 14, 2004 10:27 PM

“Far from our operating under a “codified set of principles and limitations”, we live under a malleable constitution of general language being modified beyond reason by activist judges drunken on power.”
Posted by: question on August 14, 2004 06:35 PM

question, I’m glad you’ve acknowledged that you see the light. THANK YOU for agreeing with me that Marbury v Madison MUST be overturned. These activist Judges must be stopped.

The very idea that the Courts interpret The Constitution! How dare they usurp power like that!

Posted by: Dan Gillmor on August 15, 2004 08:07 AM

How would I approach it? I’d challenge the constitutionality of the laws that prohibit same-sex marriages. Given the increasingly rightward tilt of the judciary, it’s difficult to imagine that making too much headway.

Medium term, I’d push for strong laws granting civil unions, in which partners would have all of the legal rights automatically granted to married people, such as the right to be next of kin.

Long-term, I’d work to persuade the public that denying basic liberty to one group of people is a threat to everyone’s liberty — and that if two people love each other and want to be together they should be encouraged to marry. It’ll take a while, but society is changing on this issue.

Posted by: on August 15, 2004 08:21 AM

There it is, folks. “I’d challenge the constitutionality of the laws that prohibit same-sex marriages”.

Dan thinks that this is a matter for the judges, not the people.

He believes that unelected plutocrats and philosopher kings should impose “Gay Marriage” on their lessers.

It’s antithetical to democracy, and it’s corrupting of the basic mores that have held this country together for generations.

Amazing, that Dan didn’t duck when asked this question. He has established himself forthrightly as an extreme Leftist, far outside the mainstream of the American public, and even with the People of the State of California.

Posted by: Dan Gillmor on August 15, 2004 08:43 AM

Nice distortion. Going back only one recent, and relevant, case: Democracy kept up a regime of segregation in public schools. Were the judges wrong to find it unconstitutional? I don’t believe so.

We live in a republic, not a pure democracy. And we live in a republic that has judicial review, in part to to prevent mob rule that violates basic liberties.

Posted by: on August 15, 2004 08:57 AM



What an unbelievable fascist he is! What an anarchist! How dast The Powers That Be allow ANYONE SO RADICAL to OPEN HIS MOUTH AND STATE AN OPINION!

Posted by: on August 15, 2004 10:05 AM

Distortion? LOL.

The constitutional language you’re hanging your hat on is over 100 years old.

You, indeed, support the imposition of “Gay Marriage” by plutocrats and unelected philosopher kings, whom you believe ought to be the arbiters of the rights of the minority, because the majority cannot be trusted.

In no way, shape or form has this role been granted to Dan’s preferred extreme Leftist brand of activist judges by the consent of the governed.

And, remarkably, and in your face obviously, Dan does not care.

So now, who is the fascist?

Posted by: on August 15, 2004 12:17 PM

With uniformity, Civil Rights leaders denounce any comparison between “Gay Marriage” and the breakdown of prohibitions on racial intermarriage, as cheapening the movement for racial equality in this country.

So now, Dan reveals himself as a racist! Is there any disgraceful position he won’t adopt, in pursuit of his radical pro-Gay agenda?

Posted by: Dan Gillmor on August 15, 2004 01:35 PM

Thanks for your latest rants, “question” — you reveal your inner self. Amazing…

Posted by: on August 15, 2004 06:23 PM

Paul, I understand that marriage isn’t uniquely religious historically, but it is more commonly associated with churches in our history. May be a copout, but I guess I naturally gravitate towards solutions that, like Dan’s suggestion, allow us to live and work in peace and protect our rights while we find a balance point. Extremists on either pole won’t like that, but they’ve got that right, as I do ( at least I think I still have, unless the rightwing thought police are out in force.)

As to the last few posts, it feels like the twilight zone again. Dan, I don’t think it matters what you say about the constitutional foundations or court decisions, you can’t possibly give an answer that Question would either read or understand. When your view of the world is so distorted by homophobia, is it any wonder he doesn’t get it?

Posted by: on August 15, 2004 08:07 PM

BTW – a minor ongoing gripe about the “So now, who is the fascist?” comment: you just answered your own question, albeit not in the fashion I expect you intended.

Dan is unlikely to on be of them. “Fascist” is not just a general label for extremists. It has a very specific meaning relating to right wing, reactionary groups. Check it out…if you’re going to try to insult somebody, at least do it right!

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