TheAgitator.com
Gay Marriage and the Rule of Law
Monday, February 16th, 2004On San Francisco Mayor Gavin Newsom’s decision to issue marriage licenses in violation of state law, the Instaman writes:
Newsom would deny others the right to violate a law he believes in, but feels free to violate the law himself when he chooses, even though his sole claim to legitimacy as a government official comes from the law.It’s not civil disobedience when it’s done by someone who controls the machinery of government — it’s usurpation, even when it’s in a cause I agree with.
I’m inclined to agree.
But then I thought, what if this weren’t gay marriage in the 2000s, but segregation in the 1950s? Would we feel the same way if the mayor of, say, Biloxi, Mississippi decreed that henceforth all Biloxi public facilities would be integrated, even though Mississippi state law called for them to remain segregated? Both issues involve equal protection. I’m not asking if either or both are 14th Amendment issues — libertarians can and do disagree on that. I’m just asking whether either or both mayors are/would be doing the right thing in enforcing the idea of equal protection at the expense of the rule of law.
Merely asking the question. Not sure I know the answer.
I think that he is right. I also think that he is willing to forfeit his position as a government official in order to get things rolling in the right direction here.
To be in a position where you are able to stand up like this and then to go ahead and do it is admirable.
Your example on slavery shows that you really do know the answer, you just haven’t thought deeply enough about it yet.
Hello all.
The mayor is wrong. The rule of law must be upheld even when we disagree with it. That means that both right and left cannot be allowed to get away with local acts of insurrection.
Remember the “interposition” arguments that were used in southern states to justify disregarding the civil rights acts? Roy Moore in Alabama currently is bringing up those arguments.
No, we have to all play the same ball game: No Patriot Act Free Zones in Minnesota, No 10 Commandments tablets in Alabama, No illegal gay marriages in San Francisco. We have to keep the genie of local standards in the bottle.
Michael,
The rule of law must be upheld even when we disagree with it.
Do you really believe this? What if you were living in Nazi Germany (Godwin’s law alert) and the law stated that every citizen has an obligation to tell the police if they know of any Jews in hiding. Would you still respect the rule of the law?
At what point does common decency and morality trump the rule of law?
Here are some interesting quotes:
“All laws which are repugnant to the Constitution are null and void.”
- Marbury vs. Madison, 5 US (2 Cranch) 137, 174, 176, (1803)
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
- Miranda vs. Arizona, 384 US 436 p. 491.
“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation. As inoperative as though it had never been passed.”
- Norton vs. Shelby County 118 US 425 p. 442
“The general rule is that an unconstitutional statue, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it…No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”
- 16 Am Jur 2d, Sec 177 late 2d, Sec 256
“No, we have to all play the same ball game: No Patriot Act Free Zones in Minnesota, No 10 Commandments tablets in Alabama, No illegal gay marriages in San Francisco. We have to keep the genie of local standards in the bottle.”
???
To this I say: Hell no.
The sooner that genie gets out, the sooner we can start voting with our feet, which works a whole lot better than voting with ballots (or bullets).
A few months ago, I was reading about jury nullification. Up until fairly recently, it was accepted that a jury sat in judgment not only of the accused, but also of the law that the defendant was accused under.
This was part of English common law, it was the origin of infamous Scottish “not proven” verdict. It was an accepted part of American law until about the mid-20th Century.
The rule of law is not absolute, especially not in a democracy or representative government.
fuck the law. where the left goes wrong is trying to justify everything in terms of the law. this seems to be an exception. right and wrong is not a political issue.
I’ve just decreed that all taxpayers be liberated from the IRS.
Was that wrong?
Dammit, John, if you don’t give the mafia their protection money, the rule of law will collapse entirely.
Micha, those quotes are great but the disprove your point. They support the fact that you can not create laws that are unconstitutional, as such they will be struck down by the court system.
None of those points could be put to the case at hand. The mayor can not decide that that the state law is unconstitutional, he has no authority to do so.
This is completely unacceptable in our country. We can not have local politicians ignoring laws at will.
There is a process we all must follow if we disagree with certain laws, it is not for a single person to decide that he does not like it.
I can go on with coutless examples of things that politicians could do in the same light. Lets take the contrary of what Radley proposed, what if a mayor in Alabama liked the idea of slavery and decided that from this day on slavery would be legal in his city. Anyone who has no problem with what Newsom did would have no right to complain if this happened. Our rule and process of law is what stops things like this, there is no question as the validity or point of what the mayor is doing, it is outright ignoring the law.
The sad thing is that nothing will happen to this mayor if his decision is overturned when it is taken to court. He should be fired from his job and forced to pay punishment for breaking the law just as the rest of us would have to face punishment if we were caught with, for example, dope on us. Could we argue to the judge that we did not like the law?
Sleepless night, ah well.
There is a big difference between imposing slavery and supporting civil disobedience.
Slavery goes against the one rule that almost every libertarian agrees on.
“Thou shalt not impose force.”
No one is forcing people to get married. It may break the law, but it harms no one. People chose
Considering American history, I’d be surprised if people didn’t oppose a law they thought was wrong.
I have the answer. Please prepare for my dissertation later today. My response may involve as many as 15 words, thus those of you living within the Beltway may feel the need to take notes.
This is starting to remind me of some of the din surrounding the Ashcroft hearings. The Left needed ironclad assurances that he would uphold the Law even when he didn’t personally agree with it. Doesn’t appear the Left has the same standards for Democrats in the executive branch that it does for Republicans.
The moral justification for any act lies in the facts of reality. Radley’s theoretical mayor acting against segegregation would be an example of *upholding* the express meaning of the 14th amendment. Mayor Newsom’s actions, however, don’t fall into this category. Denying marriage licenses to gay couples does not violate the Equal Protection Clause. I say this not because I have any objection to gay marriageâ??I don’tâ??but because the Equal Protection Clause simply doesn’t extend that far.
I have no problem with the mayor acting outside the law; a truly unconstitutional law is unenforcable. but if he does, he must justify it on rational grounds, not merely some abstract view of right and wrong.
Sedition?
If we pick and choose our laws arbitrarily, isn’t that despotism? If I choose to ignore the income tax laws, won’t I be punished. If a mayor in California says its ok to have conceal carry permits, then that should be ok.
Ignoring laws by the executive branch is a slippery slope.
If I diasagree with the laws that require me to pay taxes because I feel they are unconsititutional, and I stopped paying my taxes, that would be civil disobedience.
You can still go to jail for civil disobedience.
Isn’t this whole issue rather moot to the Libertarian anyways?
Marriage is at its base a religious institution and at its governmental level just a contract between individuals. Add that the government makes that specific contract subject to excessive tax regulation and you’ve got yourself a whole heap of a governmental mess.
Libertarians would never tax, regulate, or even specify marriage as any different from any other contract right?
This conundrum belongs as the monkey on the back of big government. I hope it becomes their achilles heel. I also hope I learn more cliches involving human anatomy. Wouldn’t that be a knee-slapper?
I think the whole issue would be better served if a couple or group went to court to try to get the law over turned rather then a government official deciding that the law was wrong and ignoring it. What if a govenment official, ie mayor, governer, president decided that they did not like a law, such as The Americans with Disabilities Act and chose to ignor it. Of openly defy it. Saying that it put an undue burden on business. Then what? My example may not be the best I could choose, but I hope my point gets across.
It is one thing for us “regular folk” to commit an act of civil disobedience, but when the people we elect to enforce these laws ignor them I feel that it opens big can of worms.
San Francisco’s mayor is setting a dangerous precedent.
Am I mistaken or is the right to equal protection supposed to be in regards to protecting American citizens from others doing them harm?
Ok. I’m wrong. I looked it up. I am obviously no Constitutional-amendment scholar.
I think part of it is how you define your elected officials.
Are they there to act in your behalf?
or are they they to act in what they feel is your best interest?
(I’m sure someone has a better way of phrasing that)
Skip –
You gave your conclusion that Equal Protection doesn’t extend to marriage licenses for gay couples but you didn’t include the part where you explain why. Under the CA Constitution, CA Statutes, and CA case law, I think it’s quite apparent that homosexuality is a protected class. I would agree that a Federal Equal Protection claim would be a leap because marriage is a State issue, but I’m curious why you don’t think there’s an Equal Protection claim under State law?
I find the analogy between a race of people and a group of people who have different behavior than most to be invalid. But then, you were waiting for me to say that, weren’t you? = ;)
Bad rules/unjust laws are right to be broken.
Sure, let the person who broke them answer for what they did. However, since it is an elected official that did it, and since ‘allowing’ people to get married certainly isn’t harming anyone, then he should be dealt with by the voters.
If a majority think that he should be ousted, so be it. If not, hoorah for the breaker of the unjust law!
Those of you making the statement that all laws, good/bad/just/unjust must be equally obeyed are out of your fucking minds.
What is this: some kind of intellectual slum area?
Law can be changed auditors. That’s the way our system is structured.
Your arguments, over and over, invoke some kind of noble rebellion sentiment. You’re either being intellectually dishonest or you are not thinking it through.
Our whole legal system from the Federal down to the local municipalities is structured to allow for change. You work within the system or you are a criminal.
Get over it. You live in a society, not some kind of Hobbesian war of all against all.
Well, since you brought up the racial segregation issue:
Dont you know that this type of activism and jury nullification were used in racially motivated killings? Why do you think white men were acquitted when they killed blacks? Because despite a law against murder, many ( not all)many believed it was OK to kill blacks for any perceived reason. It was not believed blacks were even human as far as legal protection was concerned.
( Just as the whole OJ Simpson case pretty much came down to nullification as well)
This and other examples will always be ammunition against jury nullification, and (IMO) understandably so. While I respect the rule of law, I understand there also could arise cases in which jury nullification “seems” absolutely necessary.
So, in support of nullification, you have to answer to the premise that we are a nation of “laws and not men.” And that jurors or officials should have to right to decide laws simply on what they like or agree with.
Dear anonymous at 8:07 AM:
If the Democrats claimed that their insistence that Ashcroft enforce laws he disagreed with was based on the principle that government officials should always do that, and if the same Democrats support the SF mayor, they are indeed hypocrites.
A few but ifs, however. First, the Democrats who wanted assurances Ashcroft would enforce laws with which he disagreed may have based their desire for such assurance on the precise nature of Ashcroft’s views rather than on a general belief in enforcing laws in which one does not believe. Indeed, while I’m far from certain, it may very well have been Ashcroft who first brought up that assurance so as to not have to defend the views his interviewers found objectionable.
Also, as much as I agree that Leftists have a tendency to parrot each other, they are, after all, individuals, and thus are not responsible for what was said by other members of their ilk. So if one Leftist wants all laws to be enforced by someone with Ashcroft’s views and another Leftist wants the SF Mayor to pick and choose, neither is necessarily being hypocritical.
Mark S.–
I was only speaking as to the federal Equal Protection Clause. I freely admit I’ve not looked at California’s constitutional and “protected class” provisions. My comments were animated largely by my reading of the Massachusetts SJC’s ruling (obviously a different state entirely), which I found wholly unconvincing. As for California, I’ll wait to see how the current lawsuit against Newsom turns out before yapping my mouth further on the California law issue.
Shinzai,
Let him be charged and tried by a jury, and be sure to inform them of nullification.
Graham says – “( Just as the whole OJ Simpson case pretty much came down to nullification as well)”
Sorry, but that just isn’t the case. Nobody has ever claimed that Nicole and her friend deserved to die at the hands of OJ. The defense put in enough reasonable doubt that he committed the crime that the jury had to acquit.
“Would we feel the same way if the mayor of, say, Biloxi, Mississippi decreed that henceforth all Biloxi public facilities would be integrated, even though Mississippi state law called for them to remain segregated?”
Would the left feel the same way if he were issuing gun licenses instead of marriage licenses?
Sternn,
Let me make a clarification. I think it could be argued that the Simpson case was jury nullification. I also agree doubt was created, but I dont know if it was that reasonable. But that argument is valid as well.
Here is my take on the possibility it was JN. It is disgusting if they disregarded the life of the vicims Nicole and Ron, but it is possible and has happened many times before.
Were you around back when the verdict was read on live television? At the time there were certainly many many people who simply did not care if OJ did kill Nicole and Ron. They simply did not care. All they cared was that a “black” man ( who like Michael Jackson, never had much in common with the traditional “black community” until he was charged with a crime)”got off” or “got over” on the system. ( Just as many in the south previously did not care if a black many actually committed a crime as long as he was made an example of).Many people think he did do it , but still wanted him free. Because they saw this as a racial revenge victory. They saw this as a case where there was a history of racial prejudice, slavery, blacks being wrongly convicted, executed wihtout trial,etc. ( Also let me add it certainly wasnt all black people or just black people who felt this way. See the Ed Asner-types and other case, Jamal, Cooper,etc. Plus many black people believe OJ got away with murder and speak of it openly). So in many people’s eyes “TWO WRONGS DO MAKE A RIGHT.” Dont believe me? See the riots, Reginald Denny ( did he deserve to be beaten?),etc. They saw this as a way to make a statement and right the wrongs of the past. Do i agree with this thinking? NO. Did the jury think this way? I don’t know.
But if you dismiss the possibility out of hand without any thought, you are incredibly naive.
Also see Mumia Abu-Jamal and Kevin Cooper. These Hollywood types and racial opportunists dont care if a police officer was murdered or children were slaughtered with an axe. They just dont want a black man to be executed, whether he did it or not.
So back to your assertion that people did not deserve think Nicole deserved to die- Most clear thinking people would not, but you’d be surprised how many people do or do not care.
I forgot the sign my name to the last post^
Thank goodness for the lawbreakers, anyone want to toast Patrick Henry? Perhaps Susan B Anthony? Rosa Parks?
I hear there is another convention coming to your local phone booth. It’s called ‘People fit to judge other people’.
Contempt for the law
“Pasadena’s City Hall has the feel of hunting season this Valentine’s Day — as gun owners line up to get
People of homosexual orientation are not akin to freedom fighters, suffragettes nor are they a race unto themselves being persecuted.
What they are is a group of people who have different sexual habits. To compare them to the very worthy individuals you noted, Frank, is almost a slap in their collective faces.
If they want to be treated normally then they should act normally.
All in line for the Heterosexual Pride Parade?
I’ll see you in the phone booth.
It’s elementary, Mr. Balko. Think individual rights. State laws can be as tyrannical as federal laws (as the jim crow experience in the south proved). It’s ‘we the people of the states of america’, so in this hierarchy, state rights are higher than federal and individual rights top any state rights.
Mentioned in the “Tower Records’ thread… and it seems to apply here as well…
It strikes me as interesting that the very people who argue that Walmart and the changes it brings, “damages communities” and yet other social changes are supposed to be welcomed… homosexual unions for one “hot button’ example… these are supposed to be welcomed with open arms, despite the idea that they too can damage communities, and at a far more basic level.
I don’t mean to equate the two in terms of impact. Yet, the diffening logic in the respective cases seems somewhat lacking, here.
Hey Radley when are you going to post a
blog discussing Mel Gibson’s new flick? That should mass more comments than your abortion blog a couple of weeks ago.
There really is no right answer to this question because it enters the realm of existential ethics. Sometimes you have to do what you think is right whatever the rules say. At the same time, I’m damn glad no Commander In Chief has ever decided to say hell with the rules I’m declaring marshal law and ruling by decree. Respect for those pesky rules is a major reason we have a liveable and successful society. And so I say that if Mayor Newsom has broken any laws, he should be prosecuted like anyone else who has. But that doesn’t mean we can’t applaud his actions at the same time we recognize their technical “wrongness” under our system. Which is paradoxical, but sometimes that’s how life is. Nietzsche said that the belief that something can’t be and not be at the same time merely reflected one’s cognitive limitations. Of course, he was nuts…. :)
Graham,
Respectfully disagree. There may have been some frustration towards the justice system in the OJ verdict. But for it to really be JN, the jurors would have had to find OJ guilty beyond a reasonable doubt, and then acquit him. I can’t believe that happened. JN has been abused in the past, I know. But not in that case. The prosecution and police simply made a mess of the case.
The other thing to remember is that many of the people who stood up against laws they found unjust also were forced to pay the penalties, regardless of the justice of their cause. Making a principled stand means doing so in the face of adversity. As I understand it, the mayor IS comitting a felony. He should be arrested. And I say this as someone who has no problem with gay marriage being legal.
Here’s the pitch:
Arnold Schwartzenegger is governor of some chaotic land. Shortly after his reign begins, all hell breaks loose. We soon discover a major city within his domain has gone rogue — ignoring the laws of the land and, to add insult to injury, the city commits these unlawful acts in the name of the land.
So the question that will be on the minds of movie goers everywhere will be:
What will Arnold do?
Justice and the Rule of Law
Radley Balko asks a difficult question: What should we do when our conception of justice differs with the rule of law? Specifically, the Mayor San Francisco recently violated state law by broadening the institution of marriage to include homosexuals. A…
Danno-
You shouldn’t label the core the same as the fringe.
The three I mentioned were standing up for what they thought was right and in time proven so (I feel). Of course there was opposition at the time who pointed to the ‘law’ and felt that they were criminals. That is my point.
Be leary of defining normal. You might not make someone else’s definition.
a rephrasing of a post I made elsewhere on this topic:
“We liberals are very concerned with process issues. We have to be. The whole de-segregation fight in the South was fought along process lines.
What SF did is dangerous from the process end of things. It is all very well for us to cheer their political courage, but what if it had been Roy Moore in Alabama and his granite block with the ten commandments on it. You know, in the South they are once again digging up the old “interposition” arguments to allow local jurisdictions to exempt themselves from Federal law.
Now if its sauce for the goose…you know the rest. IF we are to block the act of “civil disobedience” in one jurisdiction where it flies the colors of interposition, then we can’t allow with a wink, our own side doing the exact same thing using the same exact rational and in the case of SF, the mayor as far as I know did not give a convincing legal rationale for his action. At least Moore had some warmed-over 1960′s era arguments to bring up.
This was the right action done in the wrong way. Change the state law, don’t break it. Remember Thomas More’s speech to Roper always.
I know this is not going to be a popular argument here, but really we must maintain our consistency so that we have the ability to keep the genie of local standards from escaping the bottle the 14th amendment put them in.”
And so forth…
Holy Moly, I can’t imagine what would be going on in SF if the Green had won.
its funny but the kind of people who will go ‘yeah cool, break the law for x’
would go berserk if you or i or any elekted offishul stopped paying taxes in a giant public display. Commies and socialists are ALL hypocrytes.
This seems to me to be a very calculated example of Civil Disobedience.
Being Civilly Disobedient is being a martyr. The idea is that you disobey the law and pay the consequences. Hopefully enough people are outraged at those consequences and take up your cause.
This is what Judge Roy Moore hoped for, but it simply didn’t happen. He was fighting too large an opponent without enough ammunition.
The SF example has been calculated to generate much more support. By doing it in SF it is a wildly popular move, daring a judge to stop it in the face of overwhelming support.
This is how CD works people. It’s not supposed to work inside the system.
Frank,
Well, since you put it that way . . . I am going over to break room and protest that they don’t make the coffee strong enough! I feel ya . . .
As far as my definition of normal is concerned, point taken. But let me make an extreme analogy here: Killing becomes rather normal to a serial killer after awhile. Now I am not saying that homosexual behavior leads to killing, I’ll leave that up to the wackos at godhatesfags.com . But using your idea of defining normal, anything can be considered normal after a fashion.
Thanks for your views, you almost always make me think.
…you almost always make me think.
Cool, thanks.
Return of the Linky Dink
It has been quite a while since On the Fritz has posted a Linky Dink Wednesday list. To be quite honest, there hasn’t been a lot of time for blog surfing lately. We are happy to announce that this anti-social…
Return of the Linky Dink
It has been quite a while since On the Fritz has posted a Linky Dink Wednesday list. To be quite honest, there hasn’t been a lot of time for blog surfing lately. We are happy to announce that this anti-social…
good article
http://www.reason.com/sullum/021304.shtml
civil disobedience, redux
As a follow up to my earlier post, there’s an intelligent debate about civil disobedience by elected officials going on…
This issue has more to do with trying to invent a square circle than it does with individual rights and the right to privacy. There is no such thing as a marriage between anyone but a man and a woman. Duh. Square circles just don’t exist.
Why not get rid of legal marriages completely?
Replace them all with “Civil Unions”. Now, marriage can be an entirely religious term (which conservatives want) and a civil union is the legal portion of a marriage with equal rights for any couple involved (which liberals want).
The one thing I always find annoying about 99% of posts on any website, including this one, is not bad grammer, or spelling errors.
Example of a statement on this board:
But let me make an extreme analogy here: Killing becomes rather normal to a serial killer after awhile. Now I am not saying that homosexual behavior leads to killing, I’ll leave that up to the wackos at godhatesfags.com . But using your idea of defining normal, anything can be considered normal after a fashion.
This is only true if you don’t define your values!! Yours obviously being Christian, make it hard for you to be consistent, I know. For those who choose to think, and not recite. Normal is a word that defines a value. Something good, or bad. So first you have to define what good or bad is, BEFORE you can say it is normal. If you do not do this first then “normal” is arbitrary. Normal compared to what? A serial killer is what you propose. Only by comparing yourself to a serial killer could you then make the “jump” that “Killing becomes rather normal to a serial killer after awhile”. However, a rational human being first notes that life is a good thing, and killing is bad. And therefore could never define killing as a “normal” behavior.
I personally define my moral right to “marry” whom I chose based on my rights to life, liberty, and the pursuit of happiness. I use this as the precursor for any moral judgement I pass on people, regardless if I agree or disagree.
Personally I think marriage is a joke. With over 50% not lasting, one might question if marriage is ‘normal’ at all. Regardless of where this debate goes, it will not change peoples behavior.
Oops….I never got to finish….
Rationalizing a dislike, a discomfort, or hatred for gays by comparing ones mental ability to a serial killer is not a good defense. As far as the question, it would seem that a state could not take away rights granted by the Constitution, i.e. equal rights. If two people, no more , no less, are given certain “rights” by the “law of marriage”, then it shouldn’t matter who those two people are under the definition of equal.
I propose to make all those uneasy with same-sex marriages that gay couples must decide gender roles, and then have sex changes paid for by those that insist marriage be between a man and a woman, and then get married. Would that be OK?
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