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.
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.
Correct. The acts of the legislature are always entitled to the presumption of constitutionality.
Or, on preview, what DSYoung said.
I agree that we shouldn’t hijack the thread. My email should be available. I’d love to discuss it further.