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Monday, March 01, 2004

LT says it's time to pick sides in the argument about gay marriage.

My problem is that I can't pick the side I want.

I like small government, but not so small it fits into my bedroom. Or anyone else's. As far as I am concerned, what two consenting adults do in private is just that: private. It's none of my business. I don't really want to know. And if they want to establish a long term relationship with all the legal trimmings, fine. I really don't care if they happen to be two (or ten) people of the same sex.

So I'm in favor of allowing same sex marriage. I think the consequences of that position need a great deal more thought before it is formally adopted, and I suppose its possible that I could be convinced that there are difficulties with allowing same sex or group marriages that cannot be overcome. But unless and until that unlikely event happens, I'm in favor of allowing it.

But I have a serious problem with achieving changes in the law using the methods now being employed by "my side". The people getting married in San Francisco are not engaging in civil disobedience. They are complying with the law, at least on its face. There is no "disobedience" involved. The state requires a piece of paper for a marriage to be recognized as valid, and they have the appropriate piece of paper. That this piece of paper will later be determined to have been illegally issued involves no act of disobedience on the part of the couples.

It does, however, involve an act of disobedience on the part of the issuing authority, presumably Mayor Newsom. And that's the rub. Newsom was elected to enforce the law in San Francisco. That's his responsibility. I'm no expert, but my guess is that the law quite clearly states that marriage licenses cannot be issued to same sex couples. Mayor Newsom's position is that such a prohibition is illegal in that it violates the equal protection clauses of the California and US Constitutions. In my opinion it is certainly true that the ban on same sex marriages is unfair in many respects. It is also possible that it is unconstitutional. I doubt it, but its possible (especially given my relative ignorance of the law in the equal protection area). Regardless of whether it is illegal or not, Mayor Newsom is not competent to make that determination.

I don't mean he that he is not entitled to have an opinion. I mean that the authority of his office does not include the ability to make determinations about the constitutionality of the laws he was elected to enforce. He could resign in protest, rather than enforce a law he felt was unjust. He can chain himself inside the legislative chambers in Sacramento until that law is changed. He can write op-ed pieces for the San Francisco Examiner urging such a change. He could start a lawsuit to have the prohibition declared illegal by the courts, which are competent to make the determination. He could join others in petitioning the state legislature to have the law changed. He could start a drive to have the matter placed on the ballot for all California voters to decide (again).

He can do a lot of things. But the one thing he cannot do is simply declare the law void and proceed to act according to his beliefs, whatever they may be. That way lies chaos. There are an awful lot of people out there, including, I am sure, a whole bunch of mayors, who believe, for example, that every student should start the school day with a prayer. Or that the ten commandments should be prominently posted in every public office. There might even be some mayors left who believe that inter-racial marriages should not be permitted.

The personal views of mayors on such matters, as on same sex marriage, in their position as mayors, are wholly irrelevant. Mayor Newsom could not erect a monument on public property displaying the ten commandments despite a (hypothetical) belief that the law permits him to do so, or that the law prohibiting him from doing so is unconstitutional. Nor could he require school prayer in San Francisco. Nor could he refuse to issue marriage licenses to inter-racial couples.

If, and only if, you believe that Mayor Newsom's office carries with it the authority to choose which laws he should enforce and which he can ignore for what he and he alone considers valid reasons, should you believe that he can issue marriage licenses for those same valid reasons, regardless of what the law provides.

And I don't believe in government according to the personal beliefs of those doing the governing. I believe in government according to law. And that means that I cannot support Mayor Newsom's efforts to legalize gay marriage by fiat. He has to enforce all the laws, not just the ones he agrees with. Me, on the other hand, I get to obey the laws I agree with, provided only that I am willing to pay the price when caught disobeying the laws I disagree with.

And that just doesn't seem right. Until you remember that no one forced Gavin Newsom to run for mayor.
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