Galois

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.   

GLAD's FAQ

Gay & Lesbian Advocates & Defenders, who did an excellent job in arguing and winning the Goodridge case over the past several years has just updated their frequently asked questions on the decision. The new question list touches on issues like the advisory opinion being sought on civil unions, as well as the matter of marriage by nonresidents of Massachusetts. The latter issue is not so clear because of an old local law that says non-residents may not marry in Massachusetts if they are prohibited from marrying in their home state. The law dates back to the days of antimiscegenation statues and is of doubtful constitutionality, but it remains on the books.

Why The FMA Will Fail

Daniel Drezner makes some good points about why the proposed Federal Marraige Amendment will fail. He notes that the 55-40 margin in support of the amendment in the latest NY Times/CBS News Poll is not the sort of overwhelming support needed to pass a constitutional amendment. He compares it to polls showing stronger support for an amendment to ban flag burning.

The comparison is an interesting one. That proposal passed the House in June with 300 votes. The companion bill in the Senate has 57 sponsors. Compare this to the FMA which has only 6 sponsors in the Senate and less than 120 in the House.

Drezner also lists thirteen states he feels would oppose the amendment. Anyone who thinks the FMA will make into the constitution would have to identify one of those states as accepting it. I don't know about that analysis. Four of the states he mentions (California, Hawaii, Minnesota, and Washington) have anti-gay marriage laws. Of course, that does not mean the state would support an amendment to the federal constitution restricting their right to decide the issue for themselves.

A similar analysis, though, works by looking at the US Senate. Consider the Senate Democrats together with Senators Chafee, Collins, Jeffords, Gordon Smith, Snowe, and Specter. Even if every other Republican Senator voted for the amendment, it would still need yays from 21 of the above Senators. I can't name one that I think is likely to vote for the amendment, much less 21. If Specter is returned to the Senate he is likely to take over the chair of the Senate Judiciary Committee which would make passage even more unlikely.

Upcoming Dates II: Massachusetts Marriage

There are also several dates that will be important in the fight for marriage equality in Massachusetts. The Senate has asked the Supreme Judicial Court for an advisory opinion as to whether a civil unions bill is constitutional. In addition there is a proposed amendment to the state constitution that would prohibit same-sex marriage and its legal equivalents. Some dates to watch:

Jan 12 -- Amicus briefs addressing the advisory opinion due
Feb 11 -- Mass legislature meets as a constitutional convention
May 17 -- The SJC stay of judgement in Goodridge expires

I will be posting frequently on these events in Massachusetts as well as the same-sex marriage case in New Jersey where an appeal should be filed shortly. I will also comment on the proposed Federal Marriage Amendment which I think has no chance of actually passing.