Posted by Eugene Volokh:
S.F. mayor not entitled to conduct same-sex marriages:
So holds the [1]California Supreme Court, in an opinion that I'm just
starting to read. Here's [2]Howard Bashman's (How Appealing) summary:
The vote on declaring previously performed marriages void was 5-2;
the court was unanimous in holding that the Mayor of San Francisco
lacks the power going forward to allow same-sex couples to marry in
violation of existing California law. As a small consolation,
same-sex couples whose marriages are dissolved as a result of
today's ruling are entitled to a refund, upon request, of all
marriage-related fees that they have paid.
And here's the court's introduction:
We assumed jurisdiction in these original writ proceedings to
address an important but relatively narrow legal issue -- whether a
local executive official who is charged with the ministerial duty
of enforcing a state statute exceeds his or her authority when,
without any court having determined that the statute is
unconstitutional, the official deliberately declines to enforce the
statute because he
or she determines or is of the opinion that the statute is
unconstitutional.
In the present case, this legal issue arises out of the refusal of
local officials in the City and County of San Francisco to enforce
the provisions of California's marriage statutes that limit the
granting of a marriage license and marriage certificate only to a
couple comprised of a man and a woman. The same legal issue and the
same applicable legal principles could come into play, however, in
a multitude of situations. For example, we would face the same
legal issue if the statute in question were among those that
restrict the possession or require the registration of assault
weapons, and a local official, charged with the ministerial duty of
enforcing those statutes, refused to apply their provisions because
of the official's view that they violate the Second Amendment of
the federal Constitution. In like manner, the same legal issue
would be presented if the statute were one of the environmental
measures that impose restrictions upon a property owner's ability
to obtain a building permit for a development that interferes with
the public's access to the California coastline, and a local
official, charged with the ministerial duty of issuing building
permits, refused to apply the statutory limitations because of his
or her belief that they effect an uncompensated "taking" of
property in violation of the just compensation clause of the state
or federal Constitution.
Indeed, another example might illustrate the point even more
clearly: the same legal issue would arise if the statute at the
center of the controversy were the recently enacted provision
(operative January 1, 2005) that imposes a ministerial duty upon
local officials to accord the same rights and benefits to
registered domestic partners as are granted to spouses (see Fam.
Code, � 297.5, added by Stats. 2003, ch. 421, � 4)), and a local
official -- perhaps an officeholder in a locale where domestic
partnership rights are unpopular -- adopted a policy of refusing to
recognize or accord to registered domestic partners the equal
treatment mandated by statute, based solely upon the official's
view (unsupported by any judicial determination) that the statutory
provisions granting such rights to registered domestic partners are
unconstitutional because they improperly amend or repeal the
provisions of the voter-enacted initiative measure commonly known
as Proposition 22, the California Defense of Marriage Act (Fam.
Code, � 308.5) without a confirming vote of the electorate, in
violation of article II, section 10, subdivision (c) of the
California Constitution.
As these various examples demonstrate, although the present
proceeding may be viewed by some as presenting primarily a question
of the substantive legal rights of same-sex couples, in actuality
the legal issue before us implicates the interest of all
individuals in ensuring that public officials execute their
official duties in a manner that respects the limits of the
authority granted to them as officeholders. In short, the legal
question at issue -- the scope of the authority entrusted to our
public officials -- involves the determination of a fundamental
question that lies at the heart of our political system: the role
of the rule of law in a society that justly prides itself on being
"a government of laws, and not of men" (or women). . . .
To avoid any misunderstanding, we emphasize that the substantive
question of the constitutional validity of California's statutory
provisions limiting marriage to a union between a man and a woman
is not before our court in this proceeding, and our decision in
this case is not intended, and should not be interpreted, to
reflect any view on that issue. We hold only that in the absence of
a judicial determination that such statutory provisions are
unconstitutional, local executive officials lacked authority to
issue marriage licenses to, solemnize marriages of, or register
certificates of marriage for same-sex couples, and marriages
conducted between same-sex couples in violation of the applicable
statutes are void and of no legal effect. Should the applicable
statutes be judicially determined to be unconstitutional in the
future, same-sex couples then would be free to obtain valid
marriage licenses and enter into valid marriages.
The second to last paragraph may be controversial, and probably should
be: There's a good argument that all government officials should have
an independent duty to follow the state and federal Constitutions as
they understand them -- at least absent a clear court order to the
contrary -- and not just do what they think (rightly or wrongly) is
unconstitutional simply because no court has yet held it
unconstitutional. On the other hand, the California Constitution does
have a special provision on this point (art. III, sec. 3.5) that
supports the California Supreme Court's position if one treats a mayor
as an "administrative agency," "An administrative agency, including an
administrative agency created by the Constitution or an initiative
statute, has no power: (a) To declare a statute unenforceable, or
refuse to enforce a statute, on the basis of its being
unconstitutional unless an appellate court has made a determination
that such statute is unconstitutional. . . ."
But in any event, I think the court's introduction is pretty effective
rhetorically, both accurately describing the legal issue for readers,
and defending it against some of the most obvious political
criticisms. If I were writing a textbook on judicial rhetoric, I'd
probably include this as a good example.
References
1. http://www.courtinfo.ca.gov/opinions/documents/S122923.PDF
2.
http://www.legalaffairs.org/howappealing/2004_08_01_appellateblog_archive.html#109233005844293855
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