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.

Comments

[Claddagh]

I think the Mayor is likely breaking the law. He has ordered the issuance of marriage certificates for people who under California law may not legally marry.

The difference between his actions and Judge Moore's actions are as you describe, but I think one step more. The mayor is acting to create a test case to challenge the law. He is breaking a law that he believes is unlawful to create a legal challenge. I am not sure about California law, but federal law does not permit advisory opinions and requires a case or controversy. Many, if not most states, have a similar requirement for all but the most limited circumstances.

[Galois]

Good point about the test case. The point I was making at the end was that California law does not say that same-sex couples may not legally marry. It says, at this time, that their marriages will not be considered valid. If California had wanted to make such marriages illegal it would have done so, as it once made interracial marriages illegal.

[Claddagh]

I would argue that his actions are illegal in his official capacity because he is authorizing a marriage that cannot legally be authorized. Issuance of a license indicates that a presiding official can create a valid marriage between the individuals. That is not the case here.