The marriages will continue. Most people seem to agree with me that the gay couples getting married in San Francisco are engaged in a classic example of civil disobedience. They do not know the legal validity of their marriages, and San Francisco has advised them as such. The marriages are almost certainly legally unenforceable. They are doing this primarily to demonstrate their desire for marriage and the justice of their cause. It’s the symbolism they’re after; and the symbolism is having a huge impact (look at the hysteria it is provoking on the right). I think there would be no more perfect move than to jail some of these couples for daring to get married. It would be a spectacle of civil disobedience that would, I think, help their cause even further. Bring on the fire-hoses and police dogs! Newsom is in a different position as a public official, and that’s a distinction I don’t mean to gloss over. But in his case, he is arguing that he is not violating his oath by giving marriage licenses to gay couples, since, in his view, the bar on such marriages, as he understands it, violates the California state constitution. And it is the constitution that he has sworn to uphold as mayor. Money quote from the NYT:
City and county officials acknowledge that the state’s family law forbids same-sex marriage, but they argue that the state’s Constitution protects equal rights and takes precedence. Legal experts said the new licenses held only symbolic value because California law defines marriage as being between a man and a woman. City officials advised the couples to seek legal advice about their status.
Now, I’m not a constitutional lawyer, let alone an expert on California’s state constitution, so I don’t know how valid Newsom’s argument is. But if he is found in violation of his oath of office, then I see no reason why he shouldn’t be prosecuted, or impeached or face any other sanction for behaving illegally. And court hearings and challenges will continue to determine this. He should not be above the law, just as Judge Moore wasn’t. But Newsom is also entitled to act according to his conscience and to his own reading of the state constitution’s guarantees of equal protection, just as Moore was. If he is found guilty of violating his oath of office, he should face the consequences. Somehow I think one of them might be re-election in a landslide.
The Dish 