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.
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.
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?
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.”
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.
Slightly off the subject (but more in line with the actual title)- Have you ever seen the movie Judgment at Nuremberg ? 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.
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.
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).
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?
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.
Precisely - thank you for clarifying that, erislover.
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?
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.
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.
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.
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.
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.
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.
**Physically ** seperate. Not at all the same thing. The analogy fails!
[QUOTE=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.
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.
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…
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?
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.