Judge: Keep Breaking the Law

Yahoo! News – Judge Says Gay Marriages Appear Illegal

A judge said San Francisco appears to be violating the law by issuing marriage licenses to gay and lesbian couples, but he declined Tuesday to order an immediate halt to the weddings.

A conservative group had asked Judge James Warren to immediately stop the weddings and void the 2,464 same-sex marriages performed in the city since Thursday. Instead, Warren issued a nonbinding order urging the city to halt the weddings, and told city lawyers to return March 29 to explain their legal position.

“We are extremely happy and gratified that a stay was not issued,” City Attorney Dennis Herrerra said.

Mayor Gavin Newsom said through a spokeswoman that the city would keep performing the marriages despite the judge’s urging.

“We will continue to issue marriage licenses until the court rules we can no longer do so,” spokeswoman Darlene Chiu said.

How about the fact that it’s against state law?

Gov. Arnold Schwarzenegger urged city officials to stop the same-sex weddings.

“I support all of California’s existing laws that provide domestic partnership benefits and protections,” Schwarzenegger said in a statement. “However, Californians spoke on the issue of same-sex marriage when they overwhelmingly approved California’s law that defines marriage as being between a man and a woman.”

That strikes me as the correct position to take, regardless of one’s views of gay marriage. If someone wants to challenge the constitutionality of Prop 22 in the courts, let them. But mayors aren’t allowed to flout the law. That’s a bad idea.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Mike says:

    I agree about one hundred percent. My question is: to what extent will this whole issue be used as a rallying cry for republicans, and how might it actually hurt the gay community’s attempts to attain marriage parity. I’ve posted a little bit about this at my blog, but the long and the short of it is: I think they’re spending short term capital at the expense of long term goodwill.

    The judge should have done what was obvious: banned the marriages from going forward. I think gays should be allowed to married, but I don’t think that this is the right way to do it.

  2. Mike says:

    By the way, I’ve linked to you (have for a while, actually); I’d appreciate it if you could return the favor. Of course, if you look at the blog and dislike it, then don’t.

    What we small timers have to do to not be Wiggly Worms…

  3. Dodd says:

    I was among the 1/3 of California voters who voted “No” on Prop 22, but I must agree. This is pure lawlessness.

    And to think, Newsom ran as the “less liberal” candidate in the SF mayoral race….

  4. BigFire says:

    As Donald Sensing points out, it didn’t take long before someone decided to apply marriage license with a horse in San Francisco.

  5. Eugene Volokh has a good take on this.

    You said: If someone wants to challenge the constitutionality of Prop 22 in the courts, let them.

    Yet you know as well as I that if judges ruled in favor of the constitutional challenge, everyone would be crying “Judicial Activism!” Hmmm. I thought the conventional wisdom of conservatives was that we’re not supposed to challenge “the will of the people” in the courts.

    Damned if you do. Damned if you don’t.

  6. James Joyner says:

    Michael–I’ll take a look at Volohk. But the mayor is openly flouting recently-passed state law. That’s simply outrageous–and I agree with the result.

    I’m not a fan of judicial review, frankly, but it’s an established procedure. Far better to have a proposition ruled in violation of the California constitution–a subject on which I have essentially no expertise–than to simply ignore the law.

  7. Volokh’s point is that, if the law is in violation of the Constitution, then there essentially is no law. And if the Mayor believes this to be the case, then he has a right to do what he is doing.

    Now Volokh thinks the mayor will lose the case, but he believes nonetheless, that the mayor can engage in civil disobediance if he believes that the law is unconstitutional, as it were.

    The mayor believes the statute (and it’s a statute, not a law – and I’m not sure of the difference to be honest) is a violation of the Equal Protection clause in the Constitution. As such, the statute is null, in his opinion. I believe this as well.

    But then, I don’t think straight couples should be the ones who have a right to determine the definition of an institution they never really owned anyway.

  8. James Joyner says:

    But civil disobedience usually has consequences. You break the law, you go to jail. And then you fight to on the basis that the law is unconstitutional. But the working assumption should be that laws are in fact constitutional unless deemed otherwise by the courts.

  9. dw says:

    What I don’t get is why the conservatives don’t just walk into the court and DEMAND they be ruled against so they can get the case out of San Francisco. This is one of those times where you wish there was an “automatic bypass” clause in the Constitution — if there is an issue of a law that violates the Constitution OR a person is egregiously violating the dictates of the Constitution AND overturning said law/censoring violator would cause chaos beyond all recognition, it goes straight to the circuit court, do not pass go.

    I’m telling you, a Roy Moore and Gavin Newsom should just run for president. Their only plank: “We’ll cut the budget by 1/3rd by eliminating the courts: WE’RE THE LAW!”

  10. When judges deem those laws unconstitutional, conservatives (by that, I mean far right) cry about Judicial Activism!™ and scare people into believeing the worst is going to happen (pedophillia, incest, think of the children) if they don’t act to stop it.

    Like I said: Damned if you do…

  11. dw says:

    Er… let me try that last para again.

    I’m telling you, Roy Moore and Gavin Newsom should hook up and run as a presidential ticket. Their only plank: “We’ll cut the budget by 1/3rd by eliminating the courts: WE’RE THE LAW!”