This is not a case of exeutive fiat, but rather a case where an executive exercised his powers under the California Family Code. Under Family Code Secs. 350-354, a county clerk is required to examine applicants for a marriage license and grant them where required by law.
Mayor Newsom, as the executive in charge of the City & County of San Francisco, determined that he believed the sex-restrictive provisions in the Family Code violated the state constitution and directed his subordinate, the County Clerk, to issue marriage licenses without regard to gender. The County Clerk then began to do so in accordance with her responsibilities under the Family Code to be the initial screener of who could get a marriage license.
Under our government, one important check on executive action is the court system. That is to say, any person aggrieved by an executive action may sue the executive for a determination of whether his or her actions were warranted under law and within the scope of his or her authority.
Several people have in fact challenged the actions of Mayor Newsom and the County Clerk in the California Courts and asked for an immediate injunction stopping the marriages. If the actions of the Mayor and Clerk were entirely outside the bounds of their authority, the courts would have promptly enjoined their actions. However the various California courts to have looked at the matter have not issued immediate injunctions, but rather have decided to let the practice continue until they have a better basis to make a decision.
So, what we have here is not executive fiat, but a case of an executive exercising delegated authority and, to date, not being prohibited from doing so by the courts.
You must be of the opinion that the Patriot Act is constitutional. After all, an executive branch office holder has stated that it is, and, according to you, it is RIGHT for executive branch office holders to arrogate the powers of a supreme court, be that of a state or country.
If it is just fine for the Mayor of San Francisco to do what he did in the way he did it–replacing the Supreme Court of California with himself, then it is just fine for George Bush to replace the Supreme Court of the USA with himself.
Dogface, the mayor didn’t replace anyone. He is breaking an (IMHO) unjust law. He is still 100% subject to the rulings of the courts. If the courts decide an injunction is necessary to prevent irreparable harm, they can issue one. If the courts decide that the marriages are improper, they can invalidate them. If the courts decide he committed a crime, they can punish him.
When did this mayor suddenly become an unstoppable, unpunishable juggernaut of matrimony?
I am one hundred percent in favor of gay marriage. Having said that…
So? Rosa Parks wasn’t a public official who had taken an oath of office. If the mayor of San Fran feels that upholding his duties would violate his oath then he needs to step down. It isn’t even a matter of “rights”, it is a matter of power, and the ability to interpret the law as just or unjust is not given to the mayor of San Franciso.
Sounds good to me.
From the standpoint that I agree that gay marriage should be allowed this also sounds good to me. Only difference between the two cases though, is that one involves private citizens practicing civil disobedience, the other involves an elected official overstepping his bounds.
If the gay population of San Francisco wants to stage a sit-in at the city office where they get marriage licenses and the mayor wants to join them, more power to them. If the mayor of San Francisco believes that the law violates state constitution (which IMO it does) he can feel free to petition the state’s courts to strike down that law.
California state law states: “Only marriage between a man and a woman is valid or recognized in California.”
California Constitution states: “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws”
While it might seem cut and dried to you, me and the mayor of San Francisco that the above two sentences contradict each other the reality of the matter is that it is up to the courts to make that decision. What is equal protection? Why should marriage qualify for equal protection? Aren’t straights and gays both allowed to marry, just so long as it’s to members of the opposite sex and don’t they have equal rights under state law when the issue is viewed that way (IMO, they don’t have equal rights that way, but I’m just making a point here)? The issue is not as cut and dried as some people would like to believe it is, and there are significantly differing opinions on the issues, which is why the matter should be taken up in a court of law.
Also, Billdo seems to assume to much from noting that the courts haven’t stepped in yet to stop the city of San Francisco from allowing gay marriages. As of yet they have not ruled on whether or not the mayor has overstepped his bounds, and to assume that just since they have not that his actions are therefore de facto or even probably legal seems a bit of a stretch.
If the California courts are withholding judgement on Newsome, then we have no way to say Newsome is overstepping his powers. I still stongly disagree with the way in which he went about doing things, but it appears that the courts aren’t going to stop him.
Now here we have a case where an elected official has been charged with crimes, and still intends to continue breaking the law. How do people fel about this?
I think there is an important difference here. The bus law told individuals what they were and were not allowed to do. The marriage law tells the government what kind of relationship it can and cannot recognize.
There is absolutely no way for the average individual to break this marriage law in the spirit of civil disobedience. An couple can jump up and down all day saying they’re married, and it won’t count for a hill of beans. This (the mayors’ actions) is only way for this law to be broken and challenged in the same way Rosa challenged the bus law.
We could also have said that blacks in Montgomery should have just sued to get the law changed, without ever breaking it. They chose a different path.
Cheesestake, why does civil disobedience have to involve breaking a specific law? To my understanding the goal of civil disobedience is to stress that a law or laws or unfair and to bring about a public discourse on the subject so how would sitting down in the office where marriage licenses are provided and refusing to leave or some similar action not be an acceptable form of civil disobedience for those seeking the legality of same sex marriages?
Really, it’s a moot point anyways. The mayor of San Fran is claiming that he has not broken any laws and that he is in fact enforcing the law and therefore he is not practicing civil disobedience in any of its forms. His opponents are the ones claiming that he has broken the law, and to counter that with invoking civil disobedience seems kind of disingenuous.
If the mayor claims that he is practicing civil disobedience than he is confessing to breaking the law and not upholding his oath of office. If he claims that he is enforcing the law than he has taken it upon himself to determine that California’s definition of marriage violates the state’s constitution and he has than usurped the court’s power to interpret the law.
Wrench, I don’t see why we can’t say that Newsome has overstepped his bounds just because the courts haven’t ruled. The facts are out there and we can form an opinion on his actions and what should be done from them. Of course the California courts have no obligation to care about or take into consideration our opinions.
Obviously, whether Mayor Newsom’s actions were in accordance with California law and the California Constitution will be ultimately decided in the California courts, almost certainly in the California Supreme Court, where an application for prompt consideration of this matter is now pending.
What is significant, I believe, is that the two different judges that considered the matter did not order an immediate injunction prohibiting the same-sex marriages. Judges have the power to issue temporary restraining orders and very short hearing schedules to resolve these matters quickly. Here the courts haven’t done that.
To me that says that the actions of the Mayor and County Clerk, though they might ultimately be determined not to be in accord with the law, were not so outside the bounds of consideration that they needed be immediately stopped.
Billdo beat me to is on this one. As I understand it, a couple of court challenges have already occured, and no judge has yet taken any action to stop Newsome. Until a court actually rules on this matter, no action by the courts is a silent approval of his actions. Those courts which have let the matter go without ruling basically absolved themselves of their responsibility. Which says something about those judges.
Of course we can make any statements we want about the guy, Asylum. but I don’t think either of us has the power to hold him legally accountable for his actions. The people of SF can vote him out of office, should they choose to do so. But I doubt they will. I think its more likely he’ll be held up as some kind of hero. And in doing so the people of SF (and the courts which allowed Newsome to continue breaking the law unhindered) will be establishing a very dangerous precedent for future city executives.
Pretty sad when a president can get impeached for lying about an extra-marital affair, but when a mayor breaks the law and violates the public trust he’s hailed a hero and placed at the right hand of Rosa Parks.
Personally I find it disgusting and inappropriate to liken Newsome to Rosa Parks. As a private citizen, she broke what she felt wasa an unjust law, and paid the consequences for it. that is honorable and incredibly brave. Newsome, a public servant won’t pay any consequences for his actions, because it seems the CA courts are too scared to do their duty in this instance.
A mayor, sworn and duty-bound to uphold the law, cannot be allowed to break it just because he disagrees with it. Regardless of his motives, when a public official acts contrary to the laws he has sworn to uphold he is going way beyond civil disobedience. Why couldn’t the mayor have brought suit against the state for not allowing him to issue licenses? That’s what he should have done. But he was more concerned with making a big name for himself than in doing the right thing.
Because they were essentially powerless and had no other recourse. A mayor is certainly far from powerless, and as such must be held to a higher standard of behavior.
As has been pointed out, if the mayor of San Fran has indeed stepped outside of his bounds the courts can at any time nullify his actions and any gay marriages that have been performed. Just because the courts haven’t ruled immediately does not mean that the courts do not feel that he has greatly overstepped his bounds, just that there is no need to consider the matter immediately as any potential court rulings can be applied retroactively if necessary, and thus any damage to the law, if real, is avoided. It doesn’t seem unreasonable in this light to assume that the courts are waiting to see how both sides try to play this out before they hear any cases regarding the mayor’s actions, and if this is the case silence does not equal approval, just patience.
I’d also like to apologize to Cheesesteak for misspelling his/her name. I’d also like to disavow any and all typos in my previous posts (than=then, or=are, etc.). Hell, as long as I’m at it, I’d like to disavow them in all my posts. Gah, I can be a typo machine.
I haven’t found what the possible punishment was for Ms. Parks’ actions, but I did find out that her punishment was in fact a fine of $14. (cite to follow) Jason West, the mayor of New Paltz, has been charged with 19 misdemeanor offences and risks hundreds of dollars in fines and jail time, he’s stated that he will continue marrying these couples.
I believe they DID have other recourse. They could certainly have organized their boycott and suit without having to break the law. As a matter of fact, it was not her arrest and convition that went to the supreme court, it was a suit filed by the MIA 2 months later.
Want to talk powerless? Gay couples today are completely powerless, they cannot even refuse to “give up their seat”, since they’re not allowed on the marriage bus at all. What we have here is the bus driver saying “come on in, I’ll give you a lift.”
They may not be completely identical, but to say these mayors aren’t risking anything is just not true. We have one mayor who’s already been charged with crimes, and the other has received death threats. I believe it is very possible that we will look back on these days as an important time in history.
An executive official takes an oath to execute or administer the law of the land or to uphold the Constitution, or similar wording. His oath does not require him to enforce any and every statute or regulation anybody cares to come up with, but to abide by and uphold the rule of law.
He will therefore ordinarily act in accordance with the presumption that the statutes he is duly chosen to execute or administer are passed in accordance with the constitution and are presumptively valid. But when he becomes convinced that a given statute is in violation of a constitutional principle, it becomes his sworn duty to disregard that statute – and let those who believe otherwise take the matter to the courts, whose business it is to make the final ruling on such a clash of viewpoints.
By analogy, Airman Doors is under an oath to preserve the Constitution and to carry out all orders made in accordance with it and with statute law. If he received direct orders to, e.g., drop atomic bombs on San Francisco, he would be honorbound to (a) carry out said orders if he believes them to be in accordance with the law of the land, and (b) disregard such orders if he believes them to be unlawfully issued.
I posted the following in this thread, but it’s been ignored. A lot of people seem to be focusing only on the negative possible effects of this…here’s another angle, if you’re interested.
Here’s the flaw in your analogy (which almost won me over, BTW). Airman Doors is not in a position to be issuing those orders. The correct analogy to a mayor would be to consider the general (or president) who issues such orders. When you think about it this way, I think you would have to agree that a general, president, or mayor must be held to a higher standard of conduct. One which is commensurate with their power.
The analogy still holds. Imagine a general who has the ability to issue military orders to large numbers of troops. Now imagine that that general’s Commander-in-Chief, the President, orders him to drop atomic bombs on San Francisco. That general has a moral and ethical responsibility to disobey the order if he believes it to be wrong. In fact, we hold individuals who are higher up in the chain of command more responsible for making the right decisions than those who are lower down. By your reasoning, the general would have more of a duty to obey the order than those under his command, for instance the pilot of the plane carrying the bomb. But it is the people with the most power who have the greater ability to effect change, and therefore the greater duty to make the right choices.
It’s true that Mayor Newsom’s actions have a far greater impact than would the actions of a single gay couple who sued for the right to marry, because he has far more influence and media attention. That’s why it’s so important for him to do the right thing, whether or not the right thing involves disobeying an unjust law.
No, the analogy does not hold. Airman Doors would presumably only have the options of dropping the bomb or disobeying the order and not dropping the bomb. He couldn’t say, “well, I’ll drop the bomb now, and I’ll check with the Military Ethics Board (or whatever) to determine if I should keep dropping the bomb in the future”. His response to the order must be relatively swift, and it is a one shot deal with no chance of rectifying the situation at a later date (you’re not going to turn San Fran back into a city after it’s a glowing green crater). Airman Doors would have a dire need to disobey his orders in this situation.
The mayor, however, can take the issue up with the courts. The courts are ultimately going to decide the issue one way or the other, and the mayor taking it upon himself to determine what the courts will decide is an unnecessarily hasty action. The issue of whether or not gay marriage should be legal in California does not have to be decided immediately. Therefore there is no dire need for Newsome to disobey the law, and as such he has disobeyed his oath of office.