Law says, "Blacks can't ride in front"; should City enforce that law?

[nisosbar]

I mean, Newsom faced an analogous situation, IMO.

The point being that he was faced with a dilemma, as a new mayor, to either uphold the CA Constitution faithfully, as he swore to do when he took the oath of office, or else uphold laws which subvert CA's Constitution, as the laws prohibiting SSM do.

He did the right thing - uphold the CA Constitution's Equal Protection clause.

[Captain Amazing]

I'm pretty sure any such law would violate the Civil Rights Act of 1964, or, if it involved interstate travel, be unconstitutional under the Boynton decision. So, the city shouldn't enforce that law.

The analogy breaks down, though, because there aren't any federal laws or court decisions saying that gays should get married.

[Quartz]

In the U.K. there are laws which say that in certain cities in England it is legal to kill Scots or Welsh. Do you think they should be enforced?

[nisosbar]

I'm pretty sure any such law would violate the Civil Rights Act of 1964, or, if it involved interstate travel, be unconstitutional under the Boynton decision. So, the city shouldn't enforce that law.

The analogy breaks down, though, because there aren't any federal laws or court decisions saying that gays should get married.

But, since you aren't a judge, you don't have the authority to simply disregard that law, and you must enforce it.

As to laws saying the gays should get married, that's not how our legal system works. To be simplistic, "if it's not prohibited, it's allowed" is how some people characterize law in the US, as opposed to England, where "if it's not allowed, it's prohibited."

[nisosbar]

In the U.K. there are laws which say that in certain cities in England it is legal to kill Scots or Welsh. Do you think they should be enforced?

Of course not.

But for the sake of argument, if some people are suggesting that ALL laws must be enforced until a court rules otherwise, that a chief executive simply can't decide willy-nilly that laws are unconstitutional and decide not to enforce some laws, even for those laws which subvert higher laws, then all laws must be enforced equally, even stupid laws. Of course, UK has a different set of laws/a different legal system than the US.

[Sampiro]

Slightly off the subject (but more in line with the actual title)- Have you ever seen the movie Judgment at Nuremberg (http://imdb.com/title/tt0055031/) ? If not, it's about the post WW2 trials of four fictional Nazi judges who enforced the racist and ideological laws of Nazi Germany. The driving question of the movie is should they be tried for crimes against humanity, or were they just performing their offices?

More on point- I abhorred Judge Roy Moore and his violation of the 10 Commandments Law. I cannot in good conscience approve of Boynton's actions even if I completely share his views on the subject since essentially he did the same thing- he imposed his own will rather than the law. If the law were threatening the lives or physical well beings of gays my opinion would be different, but it can't successfully be argued that it was.

[John Mace]

As to laws saying the gays should get married, that's not how our legal system works. To be simplistic, "if it's not prohibited, it's allowed" is how some people characterize law in the US, as opposed to England, where "if it's not allowed, it's prohibited."

There seems to be an underlying assumption that there are no laws forbidding gays to marry. In fact, more than 30 states have DoMA type laws, and 4 states have it actually embedded in their constitutions. So it is, in fact, prohibitted in most states.

I don't think the analogy with racial discrimination holds up very well. The purely legal aspects of marriage (inheritance, etc) can largely be obtained by gays thru other legal processes besides marriage. And gays can marry in religious ceremonies in many churches. Blacks in the Jim Crow South could not get a legal document granting them "white privileges". The analogy works better in the area of tax breaks and other special government granted goodies (GGGs).

It really comes down to a judgement call for the mayor. If we were talking about a life or death situation, it would be hard to argue against his actions. If it were something like how long the yellow traffic light stays on, it would be hard to argue for "civil disobedience". Gay marriage in CA falls somewhere in the grey area. And since prop 22 has never been challenged in court, it would seem that the judicial route should be tried first, IMHO.

[erislover]

I don't think the analogy with racial discrimination holds up very well. The purely legal aspects of marriage (inheritance, etc) can largely be obtained by gays thru other legal processes besides marriage. And gays can marry in religious ceremonies in many churches. Blacks in the Jim Crow South could not get a legal document granting them "white privileges".The analogy is very strong, almost to the point of not being an analogy. People thought the blacks had equality under the seperatism (hence, seperate but equal), and you're suggesting that gays already have equality, achievable by other means (being seperate, but equal).

[nisosbar]

Uh, again, if the law said, "Blacks can't ride in the front of the bus," should the City enforce that law? Why or why not?

[Captain Amazing]

But, since you aren't a judge, you don't have the authority to simply disregard that law, and you must enforce it.

No, a law that's been declared unconstitutional is unconstitutional. It can't be enforced. In this case, though, there are laws against gay people marrying that haven't been found unconstitutional, so they will be enforced.

[nisosbar]

The analogy is very strong, almost to the point of not being an analogy. People thought the blacks had equality under the seperatism (hence, seperate but equal), and you're suggesting that gays already have equality, achievable by other means (being seperate, but equal).

Precisely - thank you for clarifying that, erislover.

[nisosbar]

No, a law that's been declared unconstitutional is unconstitutional. It can't be enforced. In this case, though, there are laws against gay people marrying that haven't been found unconstitutional, so they will be enforced.

You are still not answering the original question. I did not say that my scenario occurs in a world where such a law has been declared unconstitutional.

Wanna try again?

[nisosbar]

Okay, since you're unwilling to answer it consistent with your line of reasoning, I will answer the question for you:

If we use the same line of reasoning which people who object to Newsom are using in order to suggest that what he is doing is objectionable, then the answer to my question in the OP is that the laws prohibiting blacks from riding in the front of the bus should be enforced. After all, a law is a law.

Likewise, those who oppose SSM are supporting bigotry, or at the very least, subscribe to an understanding of California law which represents only one side in the current dispute, not which represents the "correct" point of view.

[Captain Amazing]

You are still not answering the original question. I did not say that my scenario occurs in a world where such a law has been declared unconstitutional.

Wanna try again?

Oh, ok, I misunderstood. I thought you were talking about if a law like that was passed now.

Yes, I think the mayor should enforce that law.

[Captain Amazing]

In more detail, I think a law saying that blacks have to sit in the back of the bus is an evil law. However, as long as such a law exists, as mayor, the mayor is required to enforce it, regardless of his opinions on the morality of such a law, or resign, which frees him from the obligation of enforcing the law.

[treis]

Uh, again, if the law said, "Blacks can't ride in the front of the bus," should the City enforce that law? Why or why not?

Absolutely. Assuming that a duly elected legislature passed the law and it has not been ruled unconstitutional the city has a duty to enforce it. It doesn't matter that it is blatantly unconstitutional, until the courts rule it is unconstitutional the law should be upheld. If a law like this was passed now I would imagine it would be struck down within a day of it being passed.

You're analogy to same sex "marriage" is not valid. Heterosexual marriage and homosexual marriage are not the same thing. In my opinion marriage is a joining of a man and a woman that love each other in order to form the nucleus of a family. In my opinion the key part of this is the forming of a nucleus of a family. The people of the state decided that certain benifits should be given to a married couple and they codified it into law. The majority of the American electorate agrees that homosexual and heterosexual marriage are different entities and only heterosexual marriage deserves these benifits.

Personally I do feel homosexuals can love the same as heterosexuals and they should be given the same benifits as marriage. However the reason that I don't support legalizing homosexual marriage is becuase if one state does every state has to due to the full faith and credit clause of the constitution. If my state wished to give homosexuals the same rights and privlidges of marriage but in the form of civil unions I would fully support it. If they want to allow homosexuals to marry I would oppose it becuase I feel that it would abridge the rights of other states to decide what laws they want.

To sum up I feel that homosexuals can love just as strongly as heterosexuals and deserve the same benifits and privlidges as married couples but I do not want to abridge the rights of other states to disagree with me. If every state in the Union wanted to extend these it would be fine by me to call homosexuals married. In my eyes they wouldn't be married in the traditional sense of the word. I my eyes homosexual marriage is not better or worse but different.

[laigle]

I'm pretty sure any such law would violate the Civil Rights Act of 1964, or, if it involved interstate travel, be unconstitutional under the Boynton decision. So, the city shouldn't enforce that law.

The analogy breaks down, though, because there aren't any federal laws or court decisions saying that gays should get married.

Yes, but in some states there are equal protection amendments to the state constittution for sexual orientation. And marriage licenses are state-issued, not federal, so the state constitution would be the deciding factor. This is what caused the MA "activist" judicial decision.

Government officials are sworn to uphold the laws, but they are also sworn to uphold the constitution under which those laws are created. They are not sworn to uphold the constitution only after court cases clearly establish how it applies to current law. They have to use this crazy thing called "judgement" to work out the best way to uphold their oaths in the case of apparent conflict, and if controversy arises (and when doesn't it) the courts work it out. And get this, when the courts step in Jesus doesn't descend from the sky with a nuclear flamethrower. The system is not supposed to work out as a piece of cold, robot logic. There are checks and balances in the system because things are not clear cut.

Otherwise, it would be just as proper to say they were sworn to uphold the constitution, and they should just plug up their ears whenever someone talks about law.

[Bricker]

I mean, Newsom faced an analogous situation, IMO.

The point being that he was faced with a dilemma, as a new mayor, to either uphold the CA Constitution faithfully, as he swore to do when he took the oath of office, or else uphold laws which subvert CA's Constitution, as the laws prohibiting SSM do.

He did the right thing - uphold the CA Constitution's Equal Protection clause.

Article III, section 3.5 of the California Constitution says that an "administrative agency has no power to refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional."

The constitution itself says that when an agency thinks that a statute violates the constitution, the agency must obey the statute until the courts have resolved the issue.

- Rick

[John Mace]

The analogy is very strong, almost to the point of not being an analogy. People thought the blacks had equality under the seperatism (hence, seperate but equal), and you're suggesting that gays already have equality, achievable by other means (being seperate, but equal).

Physically seperate. Not at all the same thing. The analogy fails!

[madonnaman]

[QUOTE]In my opinion marriage is a joining of a man and a woman that love each other in order to form the nucleus of a family. In my opinion the key part of this is the forming of a nucleus of a family.

The joining of a woman and a woman (or a man and a man) that love each other in order to form the nucleus of a family seems fairly common these days. So even if this "family nucleus" theory of why we have civil marriage is correct (in my opinion, civil marriage serves primarily to grant to otherwise unrelated individuals who decide to live together as a couple legal rights and responsibilities towards each other and between the couple and the state), same-sex couples ought not to be excluded from the equation.

The majority of the American electorate agrees that homosexual and heterosexual marriage are different entities and only heterosexual marriage deserves these benifits.

And the reason why so many people feel this way? Irrational animus and the enforcement of a particular brand of morality. Neither of which standing alone are a legitimate governmental interest that could justify an otherwise unconstitutional discriminatory law.

However the reason that I don't support legalizing homosexual marriage is becuase if one state does every state has to due to the full faith and credit clause of the constitution.

The federal DOMA says that states do not have to recognize same-sex marriages performed in other states, but of course the federal DOMA is of questionable constitutionality. There is a public policy exception to parts of the full faith & credit clause, which many believe may allow states to refuse to recognize same-sex marriage performed in another state if doing so would go against the "strong public policy" of the state. Personally, I think that's silly--I mean how could Jim and Bob getting married be so hideous that it would go against the strong public policy of a state? But then I'm crazy enought to believe that love is actually a good thing...

If my state wished to give homosexuals the same rights and privlidges of marriage but in the form of civil unions I would fully support it. If they want to allow homosexuals to marry I would oppose it becuase I feel that it would abridge the rights of other states to decide what laws they want.

But doesn't this line of reasoning abridge the right of a particular state to protect its citizens equally? What if 99% of the citizens in state A want full marriage equality--shouldn't state A be able to grant equal marriage rights to its own citizens regardless of what people in states B, C and D think?

To sum up I feel that homosexuals can love just as strongly as heterosexuals and deserve the same benifits and privlidges as married couples but I do not want to abridge the rights of other states to disagree with me. If every state in the Union wanted to extend these it would be fine by me to call homosexuals married.

Back before Loving v. Virginia, couldn't the same argument have been made that no state should recognize interracial marriages because some states (Alabama, Mississippi, etc.) would not want to recognize them?

To answer the OP more directly, I think that some laws are so hideous, so blatantly composed of nothing but irrationality and animus, so unjust in their application, so clearly unconstitutional that they could not be enforced in good faith. So, no, I don't think a city should enforce a "Blacks can't ride in front" law any more than they should enforce a "Gays can't marry the people they love" law. And yes, that may mean that the city would be engaging in civil disobedience. Civil disobedience, when used for the right reasons, can be a powerful tool for change. And, in some cases, it's simply the only right thing to do.

[treis]

The joining of a woman and a woman (or a man and a man) that love each other in order to form the nucleus of a family seems fairly common these days. So even if this "family nucleus" theory of why we have civil marriage is correct (in my opinion, civil marriage serves primarily to grant to otherwise unrelated individuals who decide to live together as a couple legal rights and responsibilities towards each other and between the couple and the state), same-sex couples ought not to be excluded from the equation.


I agree the argument against gays getting the same privlidges is extremely weak.


And the reason why so many people feel this way? Irrational animus and the enforcement of a particular brand of morality. Neither of which standing alone are a legitimate governmental interest that could justify an otherwise unconstitutional discriminatory law.


A discriminatory law is not nessecarily an unconstitutional law. For example the drinking age discriminates agianst legal adults on the sole base of age.


But doesn't this line of reasoning abridge the right of a particular state to protect its citizens equally? What if 99% of the citizens in state A want full marriage equality--shouldn't state A be able to grant equal marriage rights to its own citizens regardless of what people in states B, C and D think?


Yes absolutely. I personally would not support this law becuase it would force states B,C and D to recognize gay marriage even if 99% of those states are against it but state A is well within their rights to do so.


Back before Loving v. Virginia, couldn't the same argument have been made that no state should recognize interracial marriages because some states (Alabama, Mississippi, etc.) would not want to recognize them?


Yes it could have. However it is against the constition to discriminate on basis of race. Giving privlidges to straight married couples and not giving them to homosexual couples does not violate the constitution.


To answer the OP more directly, I think that some laws are so hideous, so blatantly composed of nothing but irrationality and animus, so unjust in their application, so clearly unconstitutional that they could not be enforced in good faith. So, no, I don't think a city should enforce a "Blacks can't ride in front" law any more than they should enforce a "Gays can't marry the people they love" law. And yes, that may mean that the city would be engaging in civil disobedience. Civil disobedience, when used for the right reasons, can be a powerful tool for change. And, in some cases, it's simply the only right thing to do.

Our whole government is based on the executive branch enforcing the laws duly passed by the legislature. If a official refuses to enforce any law that official should be replaced immediately with one who will. The only acceptable way to get a law struck down is through the courts. In this case the executive branch also has a duty to vigorously defend the law.

[nisosbar]

Giving privlidges to straight married couples and not giving them to homosexual couples does not violate the constitution.

Yes, it does, since in one situation, the government is saying, a woman may confer to a man rights associated with marriage through entering a contract with him, but that same woman may not confer those same rights to a woman. I guess the term is stare decisis - the history of how courts have ruled about these matters. Using stare decisis, which effectively makes gender discrimination unconstitutional, it can be persuasively argued that this type of discrimination is indeed unconstitutional.

[x-ray vision]

originally posted by treis
In my opinion marriage is a joining of a man and a woman that love each other in order to form the nucleus of a family. In my opinion the key part of this is the forming of a nucleus of a family.

Well then, in your opininon, should a 80 y.o man be allowed to marry an 80 y.o. woman?

originally posted by treis
A discriminatory law is not nessecarily an unconstitutional law. For example the drinking age discriminates agianst legal adults on the sole base of age.

Yes, there is such a thing as legal discrimination, but discriminating against sex is not an example of that.

[Dogface]

I mean, Newsom faced an analogous situation, IMO.


Your opinion is at variance with reality. The US Supreme Court has ruled ALL such laws unconstitutional. Which California court has ruled the California restriction unconstitutional?

Why do people love dictatorial executive officers when those officers' dogmas happen to agree with their own?

[Dogface]

Oh, ok, I misunderstood. I thought you were talking about if a law like that was passed now.

Yes, I think the mayor should enforce that law.


He would not be able to, because CURRENT SUPREME COURT RULINGS ALREADY EXIST that make such "bus seating by race" laws unconstitutional. Point out the SPECIFIC California or US Supreme Court ruling that says anything at all about California's current marriage law.

Cite the case.

[erislover]

Physically seperate. Not at all the same thing. The analogy fails!That is the weakest... John, your argument here was clearly that homosexuals have a seperate means to the same end. Physically seperate, legally seperate, why does that really create a point of contention for you?

[Captain Amazing]

He would not be able to, because CURRENT SUPREME COURT RULINGS ALREADY EXIST that make such "bus seating by race" laws unconstitutional.

Right, I know, and if you'll check, in my first two posts, I pointed out both Supreme Court rulings and federal law that made bus seating by race laws unconstitutional. But, in subsequent messages, the OP tried to clarify his original post, asking if segregationist bus seating should be enforced if no such court decisions or federal laws prohibiting it existed.

[Bricker]

I again refer those interested to Article III, section 3.5 of the California Constitution, since no one seems to be acknowledging its existence.

- Rick

[Zakalwe]

Article III, section 3.5 of the California Constitution says that an "administrative agency has no power to refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional."
The constitution itself says that when an agency thinks that a statute violates the constitution, the agency must obey the statute until the courts have resolved the issue.
- Rick
Did you read the whole thing, Rick?
SEC. 3.5. An administrative agency, including an administrative
agency created by the Constitution or an initiative statute, has no
power:
(a) To declare a statute unenforceable, or refuse to enforce a
statute, on the basis of it being unconstitutional unless an
appellate court has made a determination that such statute is
unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a
statute on the basis that federal law or federal regulations prohibit
the enforcement of such statute unless an appellate court has made a
determination that the enforcement of such statute is prohibited by
federal law or federal regulations.
So it's your argument that the mayor's office of San Fancisco is an administrative agency created by the Constitution or an initiative statute? Care to cite the Article/Clause in the Constitution or the relavant statute?

[Cheesesteak]

All this legalese just serves to remind me how pathetically stone age our laws and constitution are with respect to sexuality. Every single legal statement made here could easily have been made with respect to race or gender back in the day. "it's the law" "it's not prohibited by the constitution" etc. Back in the times when our laws allowed hideous treatment of others, in ways we are embarassed to recall.

This person can't vote. That person can't use the 'white' bathroom, or water fountain. These two people can't marry because it's 'unnatural'.

Just because we've caught up with respect to race doesn't make the two situations different. It all boils down to having human beings denied rights over aspects of their person that mean nothing with respect to their individual humanity.

[anonplz]

Cheesesteak, thank you for reading my mind. :)

[Bricker]

Did you read the whole thing, Rick?

So it's your argument that the mayor's office of San Fancisco is an administrative agency created by the Constitution or an initiative statute? Care to cite the Article/Clause in the Constitution or the relavant statute?

Are you seriously contending that the San Francisco clerk's office responsible for issuing marriage licenses is NOT an administrative agency?

The city of San Francisco itself is a creation of the legislature's exercise of power from the state constitution. Art. 11, Sec 2(a). A city's agency power to make and to promulgate ordinances derives from the state constitution. Art. 11, Sec 5 (a) et. seq..

And it's not "an administrative agency created by the Constitution or an initiative statute." It's "an administrative agency, including including an administrative
agency created by the Constitution or an initiative statute." It applies to any administrative agency in the state.

Come on.

- Rick

[erislover]

The constitution itself says that when an agency thinks that a statute violates the constitution, the agency must obey the statute until the courts have resolved the issue.I promise I wasn't ignoring it. :)

[Zakalwe]

Are you seriously contending that the San Francisco clerk's office responsible for issuing marriage licenses is NOT an administrative agency?
Well, actually, within the confines of applicability of Article III...

Maybe, maybe not.

I can't find a definition for the term "administrative agency" as used in the Consitution of California. The term is used only in Article III, Section 3.5 which is (I assume) a section inserted between Section 3 (describing the powers of state government) and Section 4 (referencing salaries of state elected officials and judges). In fact, Article III is titled "State of California" and references state functions and issues exclusively for all of the rest of the Article.

Now, there may certainly be some case law which details that Article III, Section 3.5 is indeed generally applicable and I will search for it. Not being a lawyer, I may not have access to everything you would and would appreciate any cites you might be able to find.

[Voyager]

If we use the same line of reasoning which people who object to Newsom are using in order to suggest that what he is doing is objectionable, then the answer to my question in the OP is that the laws prohibiting blacks from riding in the front of the bus should be enforced. After all, a law is a law.

Likewise, those who oppose SSM are supporting bigotry, or at the very least, subscribe to an understanding of California law which represents only one side in the current dispute, not which represents the "correct" point of view.

Can you just see George Wallace and Ross Barnett grinning in their graves? I wonder if Mr. Bush would be so kind as to stand in the courthouse door to prevent this dreadful thing from happening.

This is so reminiscent of the early '60s as to be frightening. I think most people today are too young to remember what it is like. I got to read about this from afar, being a Yankee. don't think that some (most?) Southerners back then were just as adamant as some of you. My Mom told me that when she went to Georgia in 1943 to be near my Dad at his army base, she, being a Jewish girl from New York, drank from a colored-only fountain. People looked at her like she had committed some sin against nature.

And John - a black person in the back of the bus gets there at almost the same time as a white person in front of it. That's a lot more equal than a gay partner not being able to visit his or her partner in the hospital, something not covered by contracts.

Voyager - still trying to figure out how SSM would hurt my 25 year heterosexual marriage.

[Zakalwe]

While not a court case, I was able to find something that seems to point out the error in my reasoning concerning the application of Article III to San Francisco:

The California Constitution and Same-Sex Marriage (http://writ.news.findlaw.com/amar/20040305.html)

See in particular the section "Is San Francisco an "Administrative Agency" Within the Provision's Meaning?"

I do take some pride in noting that the inclusion of this section and the subsequent analysis means that it was a valid question to raise even if I now must consider that the answer is probably "Yes, it does apply and, while honorable, it appears the Mayor's actions were probably unconstitutional."

However BrickerIt applies to any administrative agency in the state.
does not appear to be true (at least based on the analysis referenced above) since:It is true that cities in California enjoy some protection under the California Constitution to decide for themselves, free from state control, some matters. But the California Constitution limits these local autonomy realms explicitly to "municipal affairs." Municipal affairs may include such things as setting salaries for city employees, contracting for city construction projects, taxing local residents, and the like.Certainly things that would be handled by "administrative agencies".

[Bricker]

Certainly things that would be handled by "administrative agencies".

I'm glad we're on the same page now concerning the mayor's actions being unconstitutional.

I have a rebuttal to the comment concerning administrative agencies, but since it's not germane to the argument, there's no need to hash it out here.

- Rick

[Northern Piper]

The point being that he was faced with a dilemma, as a new mayor, to either uphold the CA Constitution faithfully, as he swore to do when he took the oath of office, or else uphold laws which subvert CA's Constitution, as the laws prohibiting SSM do.Seems to me that you're assuming the mayor only had these two options and none others. That's a false conflict.

There is at least one other option available: the mayor applies to the court for a ruling that the statute is unconstitutional, and seeks an interim injunction enjoining the bus drivers/city police from enforcing it while the law suit proceeds.

He could argue that he has standing to bring the suit for exactly the conflict that you raise: he feels that he is faced with conflicting legal directives; personally believes that his interpretation of the Constitution is correct and the bus law is invalid; but as he has sworn to uphold the law, he does not feel he can simply ignore the bus law.

[Northern Piper]

As to laws saying the gays should get married, that's not how our legal system works. To be simplistic, "if it's not prohibited, it's allowed" is how some people characterize law in the US, as opposed to England, where "if it's not allowed, it's prohibited."Where'd you get that idea from?? The principle of "if it's not prohibited, it's allowed" is one of the basic principles of the English common law, which England passed on to its colonies (even the wayward rebellious ones :D ). It's certainly not a principle unique to the United States - it's shared with almost all of the common law countries.

Sheesh. Next, you guys will be claiming to have found the German code machines during WWII and broken the Ultra code (oh, wait...)

[Cheesesteak]

I'm glad we're on the same page now concerning the mayor's actions being unconstitutional.Good thing we don't need to go through all those pesky court battles to determine if the mayor's actions are unconstitutional. We'll reserve that lengthy legal process for the anti-gay-marriage law, the mayor, OTOH, needs to stop NOW.

Snarkiness aside, am I wrong in seeing a disconnect here?

The mayor's unconstitutional acts need to stop immediately.

The legislature's unconstitutional acts (the law in question) get to go on and on until the courts rule.

[athelas]

Imagine the Los Angeles decided to allow felons to vote, because he believes that the prohibition against them voting is unconstitutional. The same comparison as the OP's can be made. If you disagree with the imaginary decision, you must disagree with the OP's argument.

[DSYoungEsq]

Good thing we don't need to go through all those pesky court battles to determine if the mayor's actions are unconstitutional. We'll reserve that lengthy legal process for the anti-gay-marriage law, the mayor, OTOH, needs to stop NOW.

Snarkiness aside, am I wrong in seeing a disconnect here?

The mayor's unconstitutional acts need to stop immediately.

The legislature's unconstitutional acts (the law in question) get to go on and on until the courts rule.Precisely, Cheesesteak.

You miss the point Bricker is asserting. California's citizens, through the mechanism of constitutional amendment, have expressed a clear desire to have the constitutionality of statutes established in court procedings not through executive fiat. The proper remedy in California when it is felt a statute violates the constitution (either the federal or state constitution, presumably) is for an aggrieved party to file a lawsuit, in order to obtain a judicial determination that a statute is, indeed, unconstitutional. Such a suit could be filed by a person denied a license to marry. Presumably, such a suit could be filed by the County of San Francisco. Absent such a determination, the County of San Francisco is obligated to administer the statutes of the state as written.

This is not mere semantics. If the administrative agency (in this case, the County of San Francisco's clerk office) continues to issue licenses which are a violation of state law, an injunction could be obtained without ever addressing the underlying issue of constitutionality of the statute making the issuance of the licenses illegal. As a former resident of California, I have a vague recollection as to why Article III, Section 3.5 was added, but I can't find any information on it at this time, and I'm not in possession of a set of California Code books which include the history behind the various sections of the California Constitution. I would gladly have someone post the listed history for that section. Nevertheless, it exists to preclude administrative refusal to follow the statutes of the state.

Of course, it isn't clear that the County is actually violating any statute by issuing such licenses. While there are three Family Code sections which limit valid marriage to a solemnized contract between a man and a woman, the statutes regarding licensing do not specifically so limit licenses. If I were the Mayor, I'd simply assert that the County is refusing to read into those statutes a limitation that is not expressly stated. In short, the County is not declaring any statute of the Family Code unconstitutional, but, rather, is disputing the assertion that licenses can only be issued to couples who will be entering into what California's statutes consider a "valid" recognizable marriage. A bit flimsy, but it does avoid Article III, Section 3.5.

[Bricker]

Good thing we don't need to go through all those pesky court battles to determine if the mayor's actions are unconstitutional. We'll reserve that lengthy legal process for the anti-gay-marriage law, the mayor, OTOH, needs to stop NOW.

Snarkiness aside, am I wrong in seeing a disconnect here?

The mayor's unconstitutional acts need to stop immediately.

The legislature's unconstitutional acts (the law in question) get to go on and on until the courts rule.

Correct. The acts of the legislature are always entitled to the presumption of constitutionality.

Or, on preview, what DSYoung said.

[Zakalwe]

I have a rebuttal to the comment concerning administrative agencies, but since it's not germane to the argument, there's no need to hash it out here.
I agree that we shouldn't hijack the thread. My email should be available. I'd love to discuss it further.