THE MAYOR of San Francisco created a new wrinkle in the hot-button topic of gay marriage last week. Mayor Gavin Newsom issued an order to allow gay marriages in the city. Since Feb. 12, approximately 3,300 couples have exchanged vows.
The situation in San Francisco, while complex with the controversial subject of gay marriage thrown into the mix, really boils down to a single subject, regardless of whether one is in support of gay marriage: the rule of law. Simply stated, a public official decided to override the law, on the grounds that it was unconstitutional in his estimation. Newsom's conduct demonstrates an utter disrespect for the law. Allowing any executive to undercut the very laws that he was elected to protect and enforce is a perilous path to go down, and the consequences will be anything but beneficial to all parties concerned. This action is not only illegal in California on several grounds, it contradicts the very nature of a government founded on federalist principles, which provides for a separation of powers among the three branches. It is not his responsibility to "interpret" and then alter California's constitution.
Newsom has not followed proper protocol throughout this ongoing drama. When a person does not agree with a particular law, he does not decide to toss it away. In order to attempt to legalize gay marriage in San Francisco, a homosexual couple could have filed for a marriage license, and when denied one, taken the matter to court. This would have been a sensible alternative. As California attorney and author Edward Lazarus said on Special Report with Brit Hume, "Here the cart has been put before the horse."
Instead, the mayor ignored the law, permitted 3,300 others to ignore and break the law and completely overlooked the constitutionality question. This was not the proper order to proceed in. Didn't we all learn in middle school U.S. History that it was the job of the executive branch to enforce the law? Since when are executives entrusted with undermining the law?
Even Sen. Dianne Feinstein, D-Ca., by all measures a liberal, stated to CNN, "A mayor doesn't decide the constitutionality of any issue. The courts decide, and that's the proper place for that" ("San Francisco to resume gay marriage, dividing Americans and politicians," Agence France Presse, Feb. 22). The function of the judicial branch, not the executive branch, is to elucidate the Constitution.
Setting the kind of precedent that Newsom has could lead to many unforeseen and dangerous circumstances.
If the mayor declares one law null and void, who's to say what other laws can be tossed aside? If the same standard is applied, policies on affirmative action, legalization of marijuana or gun control could be altered or even reversed on a whim. What if a pro-life executive decides to disregard all laws allowing abortions, claiming the Equal Protection Clause for the unborn? Does he have the right to revoke them unanimously? What if a state official decided to construct a religious symbol in a public building in disobedience of the law? Well, as Bill O'Reilly pointed out, Alabama Judge Roy Moore lost his job after he erected tablets of the Ten Commandments and refused to remove them when ordered to do so.
Newsom's decision is in direct offense to the will of the people, as expressed in Proposition 22, an amendment to the state constitution. Proposition 22, cited in the Agence France Press article, passed in 2000 in a referendum and received overwhelming support (61 percent). The wording is explicit: "Only marriage between a man and a woman is valid or recognized in California." This public mandate renders Newsom's action unambiguously illegal and leaves one to wonder how he could permit the marriages to take place in good conscious.
Newsom's decree is unlawful in more ways than one. Besides violating Proposition 22, he has altered the actual marriage licenses. Spaces labeled "groom" and "bride" have been changed to "Applicant 1" and "Applicant 2." While this appears to be a miniscule logistical modification, it is a breach of California's penal code. Section 115 states, "Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony."
Newsom's dishonesty to the homosexual community is also an unfortunate result. He is misleading the 3,300 recently-wed couples by issuing invalid marriage licenses, in essence granting them a false sense of authenticity.
This directive of the mayor of San Francisco ultimately harms the advocates of gay marriage. It portrays the cause as illegitimate, since this overhaul of the law is just that. While that might have not been his intention, it is just another unforeseen consequence of his overreaching proclamation.
Whitney Blake is a Cavalier Daily associate editor. She can be reached at wblake@cavalierdaily.com.
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