They fought the law

[mmcirvin]

Jack Balkin also celebrates the decision by the mayor of San Francisco to start licensing gay marriages in violation of state law. While the result is thrilling to see (for now), I'm a little uncomfortable about this, just because the legal situation is currently the reverse over in my corner of the country. I'm concerned that Mitt Romney is going to start blocking gay marriages illegally and claiming he's performing his own courageous act of civil disobedience just like that guy in San Francisco, expressing the will of the people who elected him against the mean old court system. This would in turn establish a Very Bad Precedent for the behavior of executive officials, particularly on the national scale. ("I'm taking a courageous stand against the unelected Constitution's onerous ban on the right of America to send French-looking people to Gitmo!" etc.)

So here's where I reassure myself. The situation isn't really all that symmetric. Newsom's decision is apparently the beginning of an attempt to get the court to overturn a state same-sex marriage ban on grounds of unconstitutionality, and it's quite possible that he will abide by whatever decision the court makes; whereas in Massachusetts the court already did this and Romney is trying to figure out some way to get around it temporarily in case a constitutional amendment is passed but not yet ratified. Romney claims to want to follow the law, and his current stated position is not one of civil disobedience, but of trying to prevent what he calls a "legal limbo." (This doesn't make a great deal of sense to me, since it seems pretty clear that amendments don't take effect until ratified and one mustn't assume in advance that ratification is certain, but never mind.) Also, I am not a law professor, and Balkin is one.

Still, I do think it's a good principle that the more governmental power you already have, the more disquieting your acts of civil disobedience become.

Comments

[ronebofh.livejournal.com]

Yeah, i was thinking it was about the same thing. It's also related, in my view, to what vspope posted about the South Dakota legislature banning abortion except to save the mother's life -- there's no way that's getting past a federal court, but, again, "courageous act of civil disobedience."

The silver lining i see is a possible resurgence of states' rights.

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[mmcirvin.livejournal.com]

Whether it's a silver lining or not depends on how happy you are with what the state happens to be doing, I suppose; the downfall of the principle of states' rights mostly had to do with situations in which states weren't being terribly considerate of certain individuals within them. But there's nothing about the federal government that makes it inherently more considerate of individual rights, apart from historical contingencies, so it could go either way.

I certainly think that who gets to marry whom is something properly regulated at the state level, if there are going to be laws about it at all.

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[ronebofh.livejournal.com]

I heartily agree with all of that.

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[mmcirvin.livejournal.com]

...Which in turn brings up the whole sticky "full faith and credit" issue; to what extent is state A required to recognize the consequences of the law in state B?

I was interested to read in that Post article that some of the people working on the FMA proposal just wanted a minimalist federal amendment clarifying that the full-faith-and-credit clause didn't imply that Wyoming would have to recognize gay marriages established in Massachusetts. While I personally think all the states ought to allow gay marriages, I do realize that it's not going to happen any time soon, and I don't automatically recoil at the idea of allowing them to consider the issue at their own pace if that makes it easier to move forward here. Unfortunately they ended up endorsing something more like an outright federal ban on same-sex marriage and anything much resembling it, which seems to me to be pretty outrageous even from a states'-rights-conservative point of view.

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[ronebofh.livejournal.com]

Again, bingo. I talked about the FF&C thing with my brother and we agreed that monkeying it was a bad idea because it would set a bad precedent.