Nah, it makes perfect sense if Chewbacca is gay.
“If Chewbacca is homosexual you must acquit.”
Dogface’s analogy is sound. But it does not in fact hold water in “proving” the Constitutionality of anything.
Any citizen may form an opinion of the Constitutionality of a law. Any public official except a judge must by virtue of his office make judgments about how he will apply the law in the course of his official duties. A policeman making an arrest must act on the presumption that the statute under which he is placing the perp. in custody is in fact constitutional, and may act with some discretion in applying the laws – e.g., a person doing 66 in a 65-mph zone on a major public highway is presumably not intending to violate the speed-limit law but is either not paying close enough attention to his speedometer, has been forced over the limit on a downslope by the laws of physics, or may have a slightly-off speedometer. And in any case the offense is de minimis under normal conditions. He will therefore decline to stop and ticket the minimal speeder.
If an official is convinced that the law enabling him to, or prohibiting him from, performing some act in his official capacity, is in fact unconstitutional, he will then act in accordance with law (as opposed to statute), and act in accordance with the constitution rather than the unconstitutional statute. And, of course, he can be sued by a person who believes the law to be constitutional and who can show that the official’s convictions resulted in actual harm to himself.
But the final decision on the constitutionality of a law rests with the courts, whose job it is to rule in accordance with law (the complex of statutes, regulations, precedent, and such, with the constitution holding the ace of trumps). And, on appeal, to the highest court having jurisdiction over the case – the high court of the individual state when it is state law in question, SCOTUS whenever a federal law or the U.S. Constitution is brought into play.
Note the distinction: Mayor Newsome and President Bush must act in accordance with their own readings of the Constitution, and yet must also abide by the decisions of a court of competent jurisdiction when the case is brought before that court.
[QUOTE=Dogface]
This is the route Ithaca, NY is taking. The mayor has declared that the city will take applications for marriage licenses from same-sex couples and pass them on to the State Health Dept. for review. The assumption is that the Health Dept. will deny them on the basis of state law and then the couple will sue the state for denial of equal rights. The city will provide legal support for the couple.
http://theithacajournal.com/news/stories/20040304/localnews/7640.html
But isn’t there the assumption that a law is constitutional unless the courts find it not to be? And since Newsome doesn’t have any power to rule on the constitutionality of a law, isn’t he obligated to follow the statute, even if he thinks it is unconstitutional?
Maybe I’m missing something, but if he’s going to argue this way, isn’t dogface putting the cart before the horse? Didn’t the Bush administration tactics (not just patriot act) make it possible for Newsome to take a unilateral stand? (I’m not agreeing with dogface’s premise either way, just trying to point out what looks like a glaring hole in the logic)
And I have to echo sentiments I’ve expressed elsewhere here, which is that Newsome is using a long-standing American tradition to challenge the unconstitutionality of a law.
Let’s get back to the ABC’s of how the law works:
John and William live in San Francisco. They wish to get married, but they have a problem: California’s Family Code declares that a marriage between two people of the same sex is not “valid.” See California Family Code §§300, 301, 308.5. Interestingly, the code sections detailing the issuance of licenses do not appear to prohibit specifically the issuance of a license to two persons who are of the same sex (see §§350-360). John and William have heard that the County Clerk for the City/County of San Francisco (they are one and the same, an unusual beast) refuses to issue lisences or certificates to couples who are of the same sex and attempt to solemnize a marriage.
One option open to John and William would be to attempt to obtain a license, and, upon denial, file suit. This is what happened in Goodridge v. Dept. of Public Health, SJC-08860, November 18, 2003 (slip opinion). In Massachusetts, the plaintiffs were empowered to sue for a declaration that the actions of the State of Massachusetts, in denying them licenses to marry, were a violation of Massachusetts law, specifically a violation of various sections of the Massachusetts Constitution. Another option might be to file a request for a Writ of Mandate (still called mandamus in some states), but this usually requires a showing that there is not a plain, speedy and adequate remedy otherwise available to the petitioners.
However, John and William don’t want to wait. So they go to their newly elected Mayor (who is also the chief executive of the County of San Francisco), and ask him if he can do anything. Mayor Newsom decides that the time has come to act, and he tells the County Clerk to issue licenses to any couple who otherwise meet the qualifications listed in §§350 - 360. The clerk procedes to do so, and the John and William obtain one, solemnize their marriage before a person authorized to solemnize marriages under §§400 et seq., and turn in their solemnized license requesting a marriage certificate, which they then receive. Now, John and William are married.
Or are they? California’s Family Code states clearly that only a marriage between a man and a woman is “valid.” Under §300, marriage is a contract to which a man and a woman contract. The contractors must be capable of making such a contract, consent to it, and have the contract licensed and solemnized. Section 301 says that an unmarried male and an unmarried female are capable of so contracting. Section 308.5 declares that only marriage between a man and a woman is valid or recognized in California. The reasonably plain meaning of these code sections is that people of the same sex are not capable of consenting to and contracting marriage in California, and if they are so capable elsewhere, their marriage won’t be recognized by California. So, although they may have obtained a license, and had the relationship solemnized, they don’t have a “valid” marriage. Presumably, the first time they attempt to have some official agency of the state grant a benefit and it is denied on the basis that their “marriage” is invalid, they are back to square one.
Has the Mayor done anything “wrong” in all this? California law does not specifically state that marriage licenses are restricted to couples who are not the same sex. In the absence of such a limitation, one can argue there is nothing “wrong” with what the Mayor has directed be done. But even if one asserts that the law intends for licenses to be limited to qualifying couples, the Mayor’s action is not “wrong” simply because he orders the issuance of licenses which he believes the California Constitution requires be issued, despite contrary state law. After all, it isn’t like the Mayor can file suit; he isn’t a party wronged by §§300 et seq.
The situation in New Paltz, New York, should be distinguished. There, the Mayor performed (solemnized) marriages for which licenses had not issued. All states restrict the solemnization of marriage to require presentation of a license before the marriage is solemnized. The Mayor is charged with performing unlicensed marriages. Mayor Newsom of San Francisco has avoided this possibility by making sure that the licenses would be issued.
Now, if anyone would like to show how Mayor Newsom is “acting in clear violation of the law” as John Mace puts it, please delineate the statute violated, and the way in which it has “clearly” been violated.
Yes and no. There is indeed the presumption that a validly passed statute is in fact constitutional, which is applicable to all officials, including courts. But note the distinction in terminology that I make between your “assumption” and my “presumption” – a presumption is the starting point, the default position against which proof to the contrary must be adduced in a court. An obvious parallel is that all persons up for criminal trial are “presumed innocent until proven guilty.” Obviously, the majority of them are not in fact innocent of the crime – but our system requires that the prosecution prove their guilt, not that the defense prove their innocence.
However, an official under oath to act according to the constitution or “the law of the land” (which is a term of art, meaning the constitution and all laws that conform to it, i.e., are constitutional) – that official is under obligation to take all acts and only those acts which are within his power and which conform to his oath. He must therefore make an initial assessment of whether the statute he is empowered to act under is in fact constitutional, should the question be raised, as it was in this case. He may choose to apply the presumption of constitutionality, or he may review the questioned statute and make his own determination of whether or not to enforce it.
His assessment is of course subject to challenge in a court of law. But it’s his obligation to act according to his oath, and that may require pre-judging the issue on which the courts have not yet ruled: “I’ll act according to the statute, and if the courts find it unconstitutional, then so be it, but I’ll accept the presumption of constitutionality” or “It’s clear to me from precedent that this statute is unconstitutional on its face, so I refuse to enforce it,” as he judges proper.
Odds are you could serve thirty years as mayor of a town or a full term as a state governor and never have to make such a call – but you cannot escape having to do so if you’re in office when the issue comes up. And not to choose is also a choice – the first item in my two dichotomous quotes in the previous paragraph.