Galois

Tradition, Tradition!

In the courts, states have had a hard time explaining what possible justification there can be for denying same-sex couples the right to marry.  The two most common arguments given in the past are that the state would like to restrict marriage to couples who can procreate and the state would like provide the best environment for raising children.  More and more courts though have pointed out the severe problems with these arguments.  The first must deal with the fact that the state allows--and at times makes it easier--for non-procreative couples to wed.  While it is true that under the rational basis test a statute may be over-inclusive or under-inclusive in achieving its goals it seems laughable to suggest that the state does not really want non-procreative couples to marry and does so only through oversight or lack of convenient way to prevent it.  The second argument fares even worse.  It tends to backfire as courts agree that marriage can be vitally important to the children involved and thus the state has no business denying the children of same-sex couples this invaluable protection.  It is not surprising then that many states have recently stopped making these arguments (although Washington is one notable exception to this trend). Instead states like New Jersey, New York, and California have switched primarily to a claim that the state has an interest in preserving the traditional notion of marriage.  It is for the sake of tradition that same-sex couples must be excluded from marriage. 

I am actually somewhat sympathetic to the tradition argument.  First of all, unlike the other arguments present above I believe this one is sincere.  I think many people do oppose same-sex marriage because it disrupts their traditional concept of marriage.  This can explain why support for civil unions for same-sex couples has generally been stronger than that for marriage.  Civil unions provide a way to offer some of the protections of marriage without breaking from tradition.  It also explains why many groups opposed to same-sex marriage talk about supporting, protecting, or defending traditional marriage but we don't see proposals for license plates asking to support procreative marriage.   

I also find myself agreeing that tradition is important.  It provides stability and continuity with the past.  Tradition can be quite comforting and reassuring as we constantly face changes throughout life.  It can be particularly distressing to see changes to traditions concerning family and religion as they are areas we associate with continuity and comfort.  Because I find tradition so important I would concede that it could be a rational basis for legislation. There is something to be said for continuing to do something the way it has been done provided there is no good reason to change.  But of course that is not the situation we face with same-sex marriage.  The law as it stands violates our right to equal protection and harms families.  When tradition is accused of being discriminatory it is hardly a defense to say that the discrimination is traditional.

This is particularly the case when we deal with traditions concerning the role of gender in our society.  Traditions have long dictated distinct roles for women and men.  In our present day those traditions have come into conflict with our ideals of equality and liberty.  There is a belief that we should all have equal opportunities without regard to our gender; and we should have the  liberty to pursue  our dreams without the government using our gender to dictate our decisions for us.  These new beliefs have caused many of our traditional laws to change.  Some of those changes were initiated through the legislative process, some through executive orders, and many have come through court orders.  The area of family law has been especially ripe for change in this regard.  The role of each gender was perhaps no where more differentiated than in the home.  At one point a woman lost all separate legal identity at the time of marriage.  Only the husband could own property.  These laws were challenged, often in the courts.  If tradition had been an acceptable defense, the laws of marriage would not have changed.  If tradition had been an  acceptable defense, VMI would still exclude women.  Fortunately our new ideals won out over or older traditions.

I find it remarkable to read in the same legal brief that the laws forbidding same-sex marriage have nothing to do with gender discrimination and a few pages later that they are necessary to preserve our traditions regarding marriage.  Do they not realize that the tradition to which they appeal is one based upon the same gender discrimination they deny exists?  Yes marriage has generally always been between a man and a woman, but when in that time has it not also always defined distinct gender roles? 

It is difficult to resolve the tension between tradition and change.  Too rigid an adherence to tradition prevents us from progress in achieving our ideals.  A rush to change in blindness to tradition can leave us feeling adrift and lost.  The key must be not to abandon our traditions wholesale, but rather to gradually modify them when and where necessary so that our traditions evolve.  That is what has happened with marriage as we have seen it gradually lose its gender based distinctions emphasizing instead aspects of mutual responsibility and commitment.  To keep the gendered entrance requirements of marriage based upon an allegiance to these past traditional distinctions would be a repudiation of the changes we have made toward gender equality.  No court should be making that repudiation.

 

Judging the Judge

In the last post I tried to provide a summary of Justice Ling-Cohan's decision without commentary.  In this one I thought I would share some of my thoughts on the opinion.  I'll look at four areas:  The Due Process Argument, The Equal Protection Argument, The State Interests, and finally The Families.

I. Due Process

The bulk of the opinion concerned the due process argument.  Namely that the right to choose whom one marries is a liberty interest protected by the state constitution.  On some level this is unremarkable.  Certainly most people would expect that our right to liberty was being infringed if all marriages were arranged by a governmental Yentl and the Department of Matchmakers.  It would still be troubling even if the government had a good reason for doing so.  Perhaps some study showed that arranged marriages are less likely to add in divorce.  The reason we feel this violates our liberty is simple.  Marriage is a public act, but whom we take for a spouse (and whether we take a spouse) is fundamentally a personal decision that no one should take from us. We might even make a mistake in whom we choose to marry, but it is our mistake to make.  Does this reason hold any less because the spouse one chooses is of the same sex?  No.  This right to choose one's own spouse has nothing to do with an ability to procreate.  Few would argue that sterile people no longer have any right to choose their own spouses.  In fact it would be more even more disturbing if the government were to arrange marriages in order to breed.  It seems clear that if the government is going to forbid a marriage it should have a good reason to do so. 

Now Professor Balkin worries that such a right to marry would undermine incest and polygamy laws.  He criticizes Justice Ling-Cohan for failing to distinguish same-sex marriage from these situations.  Polygamy laws though are not undermined at all by this right to choose one's spouse, a right that is already well established.  Polygamy does not infringe that much on a right to choose one's spouse.  It just says you must make a choice.  You can't have more than one spouse.  In a similar fashion the US Constitution forbids someone from serving simultaneously as both President and US Senator.  That does not restrict their liberty to serve in public office.  It's just incompatible to hold both offices at the same time.  I do agree that a right to marry whom one chooses would seem to require a compelling interest for incest restrictions.  I believe there are such compelling interests, though, at least when it comes to marriages between kin close enough that sexual relations are criminal.  Forbidding marriages between kin where sexual relations are permitted, though, might be difficult to defend.  That issue, though, was not before the court and it is perfectly reasonable (even appropriate) for the Justice not to address it.  For more on this line of thought see my posts on the topic from a year ago. 

II.  Equal Protection

I believe Justice Ling-Cohan was too quick to essentially dismiss the sex-based equal protection argument.  First of all she says that the law treats men and women equally.  That depends on what one means by equal.  Women are allowed to marry men.  Men are not allowed to marry men.  There are parallel restrictions, but does that imply equal.  Would gender segregated schools be acceptable (provided the schools were "equal")?  She claims, without any support, that such parallel restrictions are only problematic if they stem from discriminatory intent.  That is itself not so clear, but even if that were the case, she would seem to at least agree that "discriminatory intent" does not necessarily mean animus toward a group but could include the assigning of traditional gender roles.  This is important as most sex discrimination is not done out of any animosity to women or even a sense of male superiority, but rather a belief in certain traditional gender roles.  Justice Ling-Cohan writes, though:

Moreover, with the gradual equalization of the rights of men and women in marriage, it cannot be readily argued that the requirement that a married couple consist of a man and a woman is intended to, or does, reinforce traditional sex roles.

I note a few things.  First of all the equalization of the rights of men and women within marriage has been done gradually.  The gender requirements of marriage are likewise nothing new.  Is it unreasonable to suppose then that they might be connected to views about gender roles within marriage?  The fact that a legislature has chosen not to do away with these gender requirements speaks to a view on traditional sex roles.  The state even lists "tradition" as one of its two main arguments for the requirement. The same tradition they appeal to within marriage is one for which the role of husband and wife were quite distinct. Why should it matter today whether one's spouse is male or female unless males and females have distinct roles prescribed roles? 

Justice Ling-Cohan's claim that the sexual orientation discrimination was "indisputable" also struck me as strange.  Certainly the state is disputing the fact that they are discriminating against gays.  She said herself that gays and lesbians were not individually prohibited from marriage.  I guess she means that same-sex couples are being treated unequally (which of course they are), but this was a little unclear.

III.  State Interests

The State's asserted interests, tradition and uniformity, do strike me as rather feeble, but then those were the grounds accepted by a trial court in New Jersey recently.  Tradition may often guide us and alert us that there may be good reasons for something, but is on its own a rather weak reason for continuing to do something.  I tend to believe that if there is a long standing tradition for something, there ought to be some reason for changing it, but that has been fairly well established here.  Allowing same-sex couples to marry could be greatly beneficial to these families.  Once that case has been made it is up to the traditionalists to provide something more than, "Well, that's the way it's been done". 

The uniformity seems an even worse argument.  What harm does the state occur by granting marriage licenses that may not be recognized elsewhere?  Yes the couples will suffer some harms, but no more so than if they had no marriage license.  And New York does not even gain uniformity by prohibiting same-sex marriages.  It borders Canada and Massachusetts which both allow such marriages, and Connecticut is likely to allow them soon as well.  (This is not to mention Vermont's civil unions which are designed to be effectively same-sex marriages).

IV.  The Families

One of the best things about the decision was its focus on the real harms suffered by these families (including and especially the children) because the adult couples were denied access to marriage.  Such analysis would be especially important in New Jersey which uses a balancing test (state interests vs. individual interests) instead of a tiered approach to due process claims, but in any case it is important to keep in mind the people involved and how it effects them.  Nothing could send a clearer message that marriage matters deeply to the welfare of families than to allow these families to enter into it.

Hernandez v. Robles

So I thought I’d jump back in by discussing the recent NYC same-sex marriage case Hernandez v. Robles. Before we get into a summary of the decision it is worth noting the implications of the decision. The defendant in the case was the City Clerk of the City of New York, and hence it was essentially up to New York City Mayor Michael Bloomberg to decide whether to appeal the ruling. [For what it’s worth disclaimer: I am currently employed by New York City in a capacity in no way related to this case].  When the decision came out on Friday there was some speculation that Mayor Bloomberg might not appeal, thus allowing the clerk to issue marriage licenses within the next 30 days. Bloomberg quickly  ended speculation  yesterday by announcing that while he supported same-sex marriage--and would work to get legislation for it passed in Albany if the lower court ruling was struck down--he was going to appeal the decision so as to get a definite ruling from the state’s highest court as soon as possible. He also said that he would seek to expedite the appeal directly to the highest court (essentially skipping a review by an intermediate appellate court). There were no disagreements as to the facts in this case; it was entirely a question of law, so there is little consequence to this decision other than to speed up the process of getting the state’s highest court to examine the issue. I figure we should find out soon whether the appeal is indeed expedited. In the meantime, I thought I would summarize the court’s decision anyway below and in a subsequent post weigh in with my own opinions and analysis on some of the controversial issues involved.

Justice Ling-Cohan wrote a 62 page opinion (pdf) which is well worth reading for those who are interested and have the time, but for those who would like a summary I offer the following with the same outline used by her.  Throughout I will freely quote from the opinion omitting internal citations.

I. Background

As noted earlier the facts are not in dispute and are fairly straightforward. Five committed same-sex couples sought marriage licenses from the City Clerk of the City of New York. They were denied and given copies of letters from the city’s Law Department and from the Attorney General of New York both offering the opinion that New York State Law does not currently allow same-sex marriage. (The AG’s letter did note that there were serious constitutional questions about such exclusion that were best resolved by the courts). They were also given some information about New York City's Domestic Partnership registration program.

II. Discussion

A. Disadvantages Suffered by Plaintiff Couples and their Children

It's best here to just quote directly from the opinion:

Marriage provides an extensive legal structure that protects the couple and any children. It is not disputed, for example, that among many other disadvantages, plaintiff couples may not own property by the entireties; file joint state income tax returns; obtain health insurance through a partner's coverage; obtain joint liability or homeowner's insurance; collect from a partner's pension benefits; have one partner of the two-women couples be the legal parent of the other partner's artificially inseminated child, without the expense of an adoption proceeding; invoke the spousal evidentiary privilege; recover damages for an injury to, or the wrongful death of, a partner; have the right to make important medical decisions for a partner in emergencies; inherit from a deceased partner's intestate estate; or determine a partner's funeral and burial arrangements...

….One of the most important benefits of marriage is the securing of the bonds between parents and children and the protection of children raised in the family. For example, the children of parents in same-sex relationships are not necessarily covered by the statutory duty of support. Under State law, when a couple elects to conceive a child through donor insemination, only the married couple can ensure that at birth the child has an automatic legal parent-child relationship with each, upon their written consent.

Marriage also imposes reciprocal responsibilities on spouses, which serve to protect the family, including the legal requirement that spouses provide each other with financial support or face legal redress in certain circumstances, such as if one spouse is a recipient of public assistance. Spouses, but not unmarried couples, are permitted to take out insurance policies on each other....

...Furthermore, plaintiff couples and their children suffer numerous intangible burdens as the result of being relegated to a caste-determined status that is different from that of families in which the adult couple has been allowed to marry.

B. New York’s Domestic Relations Law (DRL)

There were two important points discussed in the section. First of all, the court agreed with the Attorney General’s opinion that while the state DRL does not expressly forbid same-sex marriage one can infer from the history and gendered language of the law that the legislature did not intend to authorize such marriages.

The second issue was whether a decision of a higher court (in Matter of Cooper) had settled the question facing this court. Once again the court agreed with the AG opinion that the previous case did not really address the issue of a right to marry (it concerned instead whether the surviving partner of an unmarried same-sex couple had to be treated as a surviving “spouse”). The court also provided a few other reasons for why Matter of Cooper was not too relevant for addressing the current issue before the court. Those concerns generally dealt with the Cooper court’s reliance on a federal case (from Minnesota in 1971) called Baker v. Nelson which found no federal constitutional problem in prohibiting same-sex marriage. The court found Baker v. Nelson to be of little value because (1) The state constitution could offer more protection than the federal constitution and (2) even at the federal level cases subsequent to Baker v. Nelson has little precedential value because of subsequent US Supreme Court doctrine.

C.  Plaintiffs Raise State Constitutional Due Process and Equal Protection Claims

The court noted that even when the language in the New York State Constitution was identical to language in the federal constitution, it could provide (and has provided) more protection. It then dealt with the two issues separately.

1. The Restriction on Same-Sex Marriage Violates Fundamental Due Process Protections.

Like the US Constitution, the NY Constitution guarantees that “[n]o person shall be deprived of life, liberty, or property without due process of the law” and it is well established that the right of liberty includes the right to marry. The opinion looked at several cases discussing this right to liberty and the broad principles involved of an individual making their own choices in certain matters. The court looked at this more closely in...

a.  The Due Process Right to Liberty Protects the Right to Marry

Again let me turn to quoting the decision (Note that the Court of Appeals is New York State’s highest court and People v. Onofre was a 1980 sodomy case):

New York courts have analyzed the liberty interest at issue in terms that recognize and embrace the broader principles at stake. The Court of Appeals, in holding unconstitutional  New York's consensual sodomy prohibition, did not define the nature of the claim with such specificity as to obscure the real right at stake (such as, for example, defining the claim as a fundamental right to engage in non-marital oral sodomy in an automobile parked on a city street). People v. Onofre. Instead, the Court's review of the constitutional deprivation focused on the individual's broader liberty interest, a fundamental right of personal decision extending to non-marital sexual intimacy.

Justice Ling-Cohan returned to the issue of how specific or broad to define the right to marriage later in (II)(C)(1)(d).

b.  Defining the Protected Marriage Rights

The court then noted the established right to marry covers not only who may marry, but the right to choose whom one may marry. It is this right that is being infringed in the current case. That, for example, was one of the problems with laws prohibiting interracial marriage. Nobody was forbidden from getting married by such laws, but they were forbidden from making certain choices as to whom to marry. Thus the court subjected this case to strict scrutiny. That is at this point it was up to the state to provide a compelling interest for denying these couples marriage licenses.

c.  No Compelling State Interests Require A Bar on Same-Sex Marriage

The court looked at the two interest raised by the defense:

i.  The State Interest In Keeping the Traditional Definition of Marriage

The court noted that if tradition alone were even a legitimate state interest to uphold a law, there would still be a marital rape exception. There would still be laws prohibiting sodomy. If one instead looks at the reasons for the tradition, it may be argued that marriage is uniquely tied to the procreation and rearing of children. The court responded, 

However, it is also indisputable that the DRL does not bar women who are past child-bearing age to marry, and that the long-term union of a man and a woman is no longer the only familial context for raising children.

It noted how a number of the plaintiffs were raising children. More importantly, there was no argument for how allowing same-sex couples to marry would harm the marital arrangements of any other couple. The court continued,

Excluding same-sex couples from marrying may, in fact, undermine the State’s interest in providing optimal environments for child-rearing, in that children of those families are then not afforded the same legal, financial and health benefits that children of married couples receive.

Finally the court noted that the concept of marriage has evolved, an issue it dealt with later in (II)(D)

 

ii. Ensuring Consistency with Federal Law and Other States As a State Interest

The court fairly quickly dismissed this claim as being even a legitimate interest. For one thing the same-sex couples (and anybody else) are no worse off if their marriage isn’t recognized elsewhere. Furthermore, “an elaborate body of comity law already exists nationwide to deal with inconsistency in State laws regarding marriage.”

d.  Defendant’s Argument That Plaintiffs Must Establish A Fundamental Right to Same-Sex Marriage is Not Persuasive

Here the court returned to the argument that the liberty interest at state was not so much a right to marry, but a right to same-sex marriage. The court noted that this type of thinking (defining the issue with such specificity as to obscure the principles involved) was just the type of thinking criticized by the US Supreme Court in  Lawrence when it overturned Bowers. (Federal cases dealing with sodomy). Likewise there was no fundamental right to interracial marriage at the time of Perez (a 1948 California case) or Loving (a 1967 Federal case), or fundamental right of inmates to marry at the time of Turner, etc.

The court further noted in regards to the argument that same-sex marriage is not marriage because that’s not what marriage has been:

Marriage is no more limited by the historical exclusion of same-sex marriage than it was limited by the exclusion of interracial marriage, the legal doctrine of coverture, the pre-1967 restrictions on remarriage following divorce in New York, longstanding restrictions on divorce, or the “marital exemption” to the crime of rape. 

The court spent some time discussing each of these examples of marriage changing from what it had traditionally been.

 

2. Plaintiffs’ Claim That the Restriction on Same-Sex Marriage Violates Equal Protection.

The court sounded skeptical of the sex-based equal protection argument. Justice Ling-Cohan noted that the law treats men and women equally and while this could still be a problem if there were discriminatory intent, but

Here, however, there is no evidence that the Legislature had a specific intent to bar same-sex marriage. Moreover, with the gradual equalization of the rights of men and women in marriage, it cannot be readily argued that the requirement that a married couple consist of a man and a woman is intended to, or does, reinforce traditional sex roles.

The court concluded, though, that it need not address this argument as it “indisputably” discriminated against the couples on the basis of sexual orientation. And regardless of whether that would subject the law to higher scrutiny the state had failed to provide even a legitimate state interest.

D. New York's Evolving Commitment to Protect and Respect Same-Sex Relationships

Justice Ling-Cohan argued that the change being made in this decision was consistent not only with the way marriage was evolving, but with the way New York’s attitude toward respecting and protecting same-sex relationships was changing.

III. Remedy

The court first noted that it is indeed the court’s role to rule on challenges to a statute’s constitutionality. As for the actual remedy, there were two possibilities. The court could either strike down the marriage laws, or read them gender neutrally. The latter seemed the more natural choice, and in fact, past constitutional violations of the DRL have been remedied by reading words in a gender-neutral manner. That was what the court would order here.

IV. Summary

The court concluded with some words regarding the importance of marriage and the importance of being able to choose our spouse without governmental interference.

[some typos corrected]

Mayor Newsom and the Law

At Capitalist Lion, Mr. Lion responded to what I believed was a rather polite comment I made defending Mayor Newsom against accusations that he was a felon and that he was violating federal law.  Mr. Lion's response came directly in a post entitled "Nope, Sorry".  The irony of this post was amazing.  Mr. Lion claimed to be correcting what he referred to as my "virtual bouqet of general misunderstanding", yet it turns out I made not one factual error whereas Mr. Lion's post was riddled with them. 

First he accuses Mayor West (of New Paltz, NY) of violating the law.  He doesn't specify what law, but presumably it's the same federal law he has accused  Mayor Newsom of violating, the Defense of Marriage Act.  That's right the mayors are DOMA violators.  Huh?  Here is his explanation....

The DoMA Act [sic] certainly does not say that neither the federal government nor any state is required to recognize same-sex relationships (or unions) from another state, quite the opposite in fact. 

The opposite would be that DOMA requires both the federal government and every state to recognize same-sex unions from another state.  Really?  He then goes onto quote DOMA's defintion of marriage and says "This is in effect a federal law defining marriage."  Despite quoting it, he completely ignores the first part of the section which makes clear that the definition is clarifying what the word means for federal purposes.  It does not forbid a state from using the word marriage with regards to same-sex couples.  Mr. Lion's inability to read gets compounded, though, by his ignorance of high school civics. 

The concept was ratified by the state of California via Proposition 22 by 61%, a margin we like to call an "overwhelming majority" in the politico world

Does Mr. Lion realize that federal laws are not ratified by states?  We might give him a pass because he said "the concept" was ratified, except that he's trying to use this to prove that Mayor Newsom violated "federal law" and he was "correcting" me for pointing out that no federal laws were violated.  Even if one feels that by granting licenses to same-sex couples Mayor Newsom violated Proposition 22--that is only a state law. 

Mr. Lion then goes on to explain how Mayor Newsom has committed over 3000 felonies.  Felonies??  Yes, Mr. Lion cites a section 115 of the California Penal Code which states that knowingly filing a "false" or "forged" instrument is a felony.  He explains

This means that modifiying the state license form to read "Applicant 1 & 2" instead of "Bride and Groom", and then filing that form, is a felony.

Oh is that what it means?  I thought it referred to filing a "false" or "forged" instrument, seeing as that's what the statute actually says.  Maybe Mr. Lion thinks those documents are forged.  If so, he should read the relevant statutes describing forgery.  As with probably every other state, forgery in California requires an intent to defraud.  In particular, there must be some sort of deception.  Mayor Newsom has been quite open about what he has done.  Oh, but Mr. Lion is not done.  He continues his flight of fancy with more false claims.  In explaining why the justices of the Massachusetts SJC are tyrants he writes:

The Judiciary has instructed the Legislature to create law which come into compliance with its ruling.  This, by every reasonable definition, is an act of tyranny. [emphasis original]

Nowhere in the Goodridge decision did the SJC instruct the Legislature to do anything.  It declared that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution."  It's also pretty tough to say that this declaration is "an act of tyranny" by "any reasonable definition".  Hyperdictionary gives two definitions of "tyranny".  The second is "dominance through threat of punishment and violence".  There was certainly no threat of violence in the court's decision.  I guess this definition must be unreasonable.  Or perhaps Mr. Lion really meant "some" instead of "every". He just mistyped.   Maybe he's going with the first definition: "a form of government in which the ruler is an absolute dictator (not restricted by a constitution...)".  If that's the case, does Mr. Lion really think the court sees itself as not restricted by a constitution, as opposed to this being merely a matter where the SJC does not share his understanding of the Massachusetts Constitution?  If that's the case, then what good is an amendment going to do?  The tyrants would just ignore it .  After all, they are by definition above the law.  No, if Mr. Lion's assertion about tyranny is more than mere rhetoric he should demand the justices be removed by force.   

Eugene Volokh's Got My Back

Eugene Volokh explains why the comparison between Moore and Newsom is not apt.  His explanation is basically the same as mine, but a little more eloquent and with a little more detail.  I also suspect his explanation will be (rightfully) slightly more influential.  I disagree with Volokh about the merits of the case, but we agree that unless Newsom defies a court order it is perfectly legitimate for him to follow what is a reasonable interpretation of California law. 

Moore and Newsom

Rod Dreher at NRO's The Corner asks:

Why was it wrong for Judge Roy Moore of Alabama to unilaterally declare federal law wrong, and defy it by installing a Ten Commandments monument in a courthouse rotunda,  but it's okay for San Francisco Mayor Gavin Newsom to unilaterally declare state law wrong in prohibiting same-sex marriage, and defy it by issuing marriage licenses to gay couples? I mean, I know why the media was outraged by the former episode of grandstanding and not the latter, but as a legal matter, what's the difference?

This comparison of the two is echoed by Steve at Southern Appeal.  I'd be happy to answer this one.

Judge Moore believes that the US Constitution really didn't prohibit him from placing the monument in the courthouse.  Others disagreed and sued to have the monument removed.  Both sides presented their case and Moore lost.  He then appealed the decision to the 11th Circuit and lost again.  He then chose not to request a stay of that decision and was subsequently ordered by a district court with jurisdiction to remove the monument.  He defied this order and that was what most people found most upsetting.  If he felt that the order itself was unconscionable and thus could not live with himself if he carried it out, I would have supported his decision to be true to his conscience, but expected him to face the consequences of his actions.  I don't think this is what happened, though.  For one, Moore purposely decided not to seek a stay of the order.  Secondly, I'm not aware of any religious law that forbids one from removing monuments. 

Now let us compare this to the case of Mayor Newsom.  He believes that the California Constitution requires he treat people equally and grant marriage licenses to same-sex couples.  Others disagree and have sued to stop him from doing so.  This case has not yet been heard yet.  In fact, every indication has been that if a judge enjoined Mayor Newsom from granting the licenses he would immediately stop doing so.  If a judge does so tomorrow, and if Mayor Newsom defies the order then comparisons to Judge Moore would be in order.  I should note that Judge Moore was permitted to keep the monument in place until his case and its appeal had been heard.  If one wants to make comparisons, we should say that Mayor Newsom should be permitted to continue granting licenses until a decision is reached in his case.

Finally, it's worth noting that as far as I can tell Mayor Newsom is not breaking any laws.  Even if all of the California statutes were constitutional, they only state that marriage is between a man and a woman and that other marriages are not valid.  In particular, they don't say that it is illegal to perform such a marriage, only that such marriages would be given no effect.  Compare this to the days when California prohibited interracial marriages.  If one reads the decision Perez v. Sharp that put an end to that practice, one will note that not only were "All marriages of white persons with negroes, Mongolians, members of the Malay race, or mulattoes" considered "void", they were also "illegal".  At least at one point in time the California law even authorized criminial penalties on one who solemnized such marriages.  I have found nothing comparable to this in the current California  Codes as it pertains to same-sex marriage.  So people may criticize Mayor Newsom if they like, but at this point in the process the comparisons to Judge Moore are a bit premature.