Rendering the Electoral College Academic [Updated]
Munro Doctrine III: Lingua Franca


The topic has come up here before, and this Fool is after all an attorney in California, so here is late-breaking legal news for you.

The California Supreme Court has issued its opinion in the San Francisco gay marriage case. The decision -- 117 pages altogether, including the concurring and dissenting opinions -- in Lockyer v. City and County of San Francisco (August 12, 2004), Case No. S122923, can be found at these links in PDF and Word formats.

I have not read all or even most of it yet, but I glean this: The Court unanimously determines that San Francisco Mayor Gavin Newsom exceeded his legal authority in directing the issuance of marriage licenses to same-sex couples. The 5-justice majority opinion also directs the undoing of any and all marriages that were performed pursuant to those licenses, rendering them a nullity. Justices Werdegar and Kennard, concurring in the impropriety of the Mayor's actions, dissent from the portion of the decision vacating already-performed marriages.

This decision was always postured to focus on a limited issue: whether or not Mayor Newsom had any authority to direct issuance of licenses that were not in compliance with the provisions of the Family Code defining marriage as between a man and a woman. The highest-profile issue surrounding gay marriage nationally -- whether the denial of legal sanction for same sex unions is a violation of those couples' Constitutional rights -- is explicitly not before the Court and explicitly not addressed in this decision. (Another suit raising that question head on is working its way through the lower courts now.)

For no better reason than that it gives me an opportunity to quote a favorite literary passage, quoted by the Court in a footnote, here is a paragraph from near the conclusion of the majority decision, responding to an argument that Mayor Newsom did "the right thing" even if the law prohibits it:

In this case, the city has suggested that a contrary rule -- one under which a public official charged with a ministerial duty would be free to make up his or her own mind whether a statute is constitutional and whether it must be obeyed -- is necessary to protect the rights of minorities. But history demonstrates that members of minority groups, as well as individuals who are unpopular or powerless, have the most to lose when the rule of law is abandoned -- even for what appears, to the person departing from the law, to be a just end.42 As observed at the outset of this opinion, granting every public official the authority to disregard a ministerial statutory duty on the basis of the official’s opinion that the statute is unconstitutional would be fundamentally inconsistent with our political system’s commitment to John Adams’ vision of a government where official action is determined not by the opinion of an individual officeholder — but by the rule of law.

42 The pronouncement of Sir Thomas More in the well known passage from Robert Bolt’s A Man For All Seasons comes to mind:

‘Roper: So now you’d give the Devil benefit of law!

‘More: Yes. What would you do? Cut a great road through the law to get to the Devil?

‘Roper: I’d cut down every law in England to do that!

‘More: Oh? And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast -- man’s laws, not God’s -- and if you cut them down -- and you’re just the man to do it -- d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.’ (Bolt, A Man for All Seasons (1962) p. 66.)

[Note: The links above to the Court's opinion will expire in approximately 120 days; the opinion should still be accessible thereafter by substituting "archive" for "documents" in the URL.]


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