Actually, I don’t think Moore was clearly violating the law, initially. We, as a country, are very equivocal about which religious acts or displays are allowed in the public (government) sphere and which are not. Our government (including the SCotUS) is littered with religious elements. But once the court order came down, it did become clear, and he should have relented.
Newsom, on the other hand, clearly went against the law of CA and the will of the people, as expressed in prop 22.
So yes, they both ignored the law, but at different stages of the process. In the end, that may not matter, but I think defying a court order is something one cannot argue about the way one might argue about the interpretation of a statute or a section of the constitution.
I hope this isn’t an unfair question, and if it is I apologize, but would you change your mind if there were California cases saying that same sex marriage was not protected under the California constitution, even if those decisions were years old?
I’m not saying that I can provide any such cases because I haven’t done any research on the point, but I’d be surprised if no one had ever challenged the definition of marriage in a California court before Newsom came along.
It would depend on how old they were. Courts reverse themselves all the time, so if it was sufficient far in the past*, it might be worth another challenge. But it’s hard to argue with a direct court order issued a day ago.
*I don’t know how far that would be-- it’d have to be a judgement call.
Bowers v. Hardwick was 1986, and it was superceded by Lawrence v. Texas in 2003, so your “point in the past” could be anything prior to either of those points and have legal merit.
John, I know you’re not against SSM, per se, but try to understand why the reaction of many of us in the gay community to the above quote is, “So the fuck what?”
This country wasn’t ready for integration (as evidenced by how no smooth the transition to it was). This country wasn’t ready for black civil rights in general. This country wasn’t ready for an end to slavery (I think the whole civil war thing should be evidence enough for that).
Equality before the law is NOT a majority option. It’s an absolute imperative, and damn public opinion. Those who “aren’t ready” for SSM should then, perhaps, not get married to someone of the same sex?
That said, I believe Newsom did the right thing. The stay is pending a full hearing, and is therefore temporary and procedural rather than permanent and a final judgment.
I can understand that. It’s a very natural reaction. And I have to admit that, as a straight guy, I can be a lot more emotionally detatched from this whole issue than I’m sure you can.
If you want to stand on principle, and not care about the actual result, then I’d say: Knock yourself out. What I’m trying to understand is why so many in the gay community seem to be so eager to dash head first into what will most likely result in a major setback.
Perhaps I’m overly pessemistic in what the SCotUS will ultimately decide. Maybe they will come down on the side of gay marriage-- I just don’t see it happening. What I do see happening is state after state writing anit-gay marriage language into their constitutions. That will be really hard to undo in the future.
If you find the compromise of Civil Unions (with an eye on marriage some time in the future) to be inadequate or insulting, then maybe the best thing to do is to “damn the torpedoes, full speed ahead”.
One other question. Had this been an issue of interracial marriage, and Newsom had been allowing different races to marry, would you still say he did the right thing if a court ordered him to halt?
The present system is probably the best we’re going to get. That doesn’t mean that there isn’t an ideal that we’re not living up to. Questions of equality under the law are NOT appropriate public opinion questions. I refuse to believe that an ideal system would require me to submit my worth as a human being to a people the majority of whom either hate me or pity me for my sexual orientation.
I do recognize that we don’t live in an ideal system. When I go off the rails about it it’s usually because the reality disappoints me so much.
As a rather significant person in my life says, scratch a cynic and you’ll find a romantic. Usually it’s a direct cause and effect situation…we’re cynical because our romantic* expectations are continually disappointed by reality…
*romantic in the “this is the way things SHOULD be” sense, not in the “come viz me to ze kazbah” sense…
It’s just that in discussions like this, it’s sometimes hard for me to distinguish between complaints that underlie a proposal for substantive change, and posts like yours that simply are disappointed in the reality.
The sad fact is that significant change does not happen overnight. The Civil War ended in 1865, and Rosa Parks was breaking the law by keeping her seat on the bus in 1955. Ninety years - more than most people live - had not effected enough change in the system.
But as wrong as Jim Crow was, it would have been wronger still, I believe, to replace our government in 1866 with a benevolent dictatorship – even if that dictatorship had immediately imposed complete racial equality.
Bricker, I think we need a mix of those two attitudes. While it’s all well and good to trust in the system and be patient, change isn’t driven by inertia. And truthfully, the people who are intensely invested in social inertia in this instance need to be counteracted by people on the other side who are intensely invested in change.
Because of that, I consider the howling and growling that I and others on this side are doing to be more than mere frustration and disappointment with the current situation. That’s where our anger comes from, but it’s not just that. It’s necessary because it keeps the whole kaboodle from sliding back under the waves of public apathy. Our side needs to stay in view because social inertia is heavily beholden to the concept of “out of sight, out of mind”.
That said, it is very easy to slide off the rails while we’re speaking our hearts. And I admit that at times, it becomes very airy-fairy (if you’ll excuse the phrase) and idealist, well outside the bounds of the reality we have to come back to when our flight of fancy is over. And most of us recognize that.
Well, if Newsom’s point was indeed that the state Domestic Relations Law contravened the protections of the state constitution, then he has done precisely what he should have done: Act as called for under the state constitution, ignoring the law he believes unconstitutionally restricts him from according equal justice to S.F. citizens, until this preliminary injunction was handed down, then accord the court the respect of following its mandate to cease until they have a chance to examine the merits of both sides of the claim. As civil disobedience goes, he gets a near-perfect score for handling it just right.
I’m curious, however, as to what the opinions of the folks who follow such things here are, as to what would happen if it did get booted up to SCOTUS.
My presumptions for that question are: current court membership is still in place; argument for legality of gay marriages is founded on equal protection and reference to Loving, Romer, and *Lawrence. What sort of ruling can be expected, and why do you say that?
Actually, I don’t agree, because the state constitution also has a provision that instructs agencies that believe a particular law is unconstitutional that they may NOT act on that belief until there has been an appellate court ruling on the matter. So if Newsom was truly motivated by a desire to obey the California constitution, he should theoretically have given weight to that instruction as well.
The majority in Lawrence were very careful to say that their ruling therein did not extend to recognition of marriage. My best guess in the current climate, given the current Court make-up, is that now is NOT the time for same-sex marriage to get federal constitutional recognition.
I disagree. First, there are a number of different reasons for civil disobediance. One of the main reasons for civil disobediance is to get standing to challenge a law you believe to be unconstitutional. But San Francisco didn’t need to break the law to get standing.
Newsom’s real motivation for this was poltical. He’d just won a surprisingly close election (where he barely beat out the Green candidate) and he was looking for a way to score some points. In that, he was completely succesful.
Hear, Hear! Newsom has set in motion a chain of events that will almost certainly reach the U.S. Supreme Court sometime late in the next presidential term. I completely agree with Bricker. I also think that the Court might well get even more conservative, even if Kerry wins. Stevens can’t hold out much longer and there is no way his replacement is going to be more liberal than he is.
If things had gone along at their own pace, gay marriage would be a fait accompli in ten years. As it is now, I’ll lay you odds that the U.S. Supreme Court will hold that barring gay marriage doesn’t violate the U.S. constitution. At least thirty-eight states are likely willing to amend their state constitutions if they need to to prevent gay marriage. This isn’t a civil rights movement, it’s a slow-motion trainwreck.
