The Gay Marriage Story That Isn't

Although what I wrote two posts down might imply otherwise, anti-gay marriage advocates did not just win a victory in California.

True, the legal effect of the California's decision today is to void all the gay marriages performed in San Francisco earlier this year (about 4000 of them). But the court expressly states that they are not deciding anything at all about gay marriage. Then they repeat it. Then they repeat it again, just in case.

Instead, this is a case about separation of powers. Basically, all that was decided today is that it is for the courts to decide whether a statute is constitutional. Gavin Newsom is a mayor, not a court. Ergo, Gavin Newsom cannot decide wether a statute is constitutional. Or, rather, more precisely stated, he cannot refuse to enforce a statute simply because he feels it is unconstitutional. Because Newsom exceeded his authority, the marriages were declared invalid.

So the issue of constitutionality is still wide open, and it's pending in the lower California state courts. In other words, in terms of the actual debate on gay marriage, today's opinion means nothing at all.

I'm not entirely happy about the decision. The idea that the judiciary - and only the judiciary - can determine the constitutionality of a statute is found nowhere in the Constitution. The first hint you get of it is in the landmark case of Marbury v. Madison, where Justice Marshall famously said something like "it is emphatically the province of the judiciary to say what the law is." And why is that? asked my Con Law professor. Because Justice Marshall said so. Emphatically.

I think that works all kinds of mischief with our separation of powers. If the three branches of government are equal, then assuredly a determination by both the executive and the legislature should trump a contrary determination by the judiciary. 1 + 1 is more than 1, after all. I would like to see something akin to a veto override, where a super-majority of the Congress plus the Exective can override a judicial opinion. That way, two branches beat out one. But the framers didn't say anything about judicial review (neither the existence nor any limitations on it), and so we've got very little outside of Marshall's emphatic-ness to go on. That's screwed up. But I readily admit it is History and it is The Law. And the California Supreme Court was merely re-emphasizing both History and The Law in its decision.

Note that, even if my highly radical approach were to be adopted, it wouldn't change today's ruling. Gavin Newsom is an executive officer (mayor of a city and county), but he is not a statewide executive officer, the head of a co-equal branch of state government. I think we would invite anarchy if every state employee at every level could refuse to do a job or do a job in violation of the law simply based on a personal determination of constitutionality. Imagine going in for a drivers' license and having Patti and Selma say "no, you can't have one because you're ugly." Well, I can't imagine that. I'm gorgeous. But if they said that to an ugly person, and then justified their actions by claiming there is no constitutional bar against a DMV employee denying a license to ugly people - and if that action was upheld until the courts stepped in and forced them to issue the license, daily life would quickly become unbearable. That's largely because of the pervasive influence that government has on your life. Partly because government employees are virtually unfireable, so they can get away with whatever they want.

Let me conclude with a quote from the Simpsons. Patti and Selma work in the DMV, in case you don't know.

Patti: Some days, we don't let the line move ... at all.
Selma: Yeah. We call those "week days."