Monday, March 01, 2004

When is civil disobedience not disobedience?

If asked, the civil rights protesters of the 60’s would probably have conceded that they were breaking US law by (say) sitting at a whites-only lunch counter. The California gay marriage advocates, lead by SF Mayor Gavin Newsom on the other hand, have a reasonably solid case that the law they are flouting is unconstitutional (with respect to the California state constitution). Are they any different, or is a false distinction being made?

If you believe that the California proposition defining marriage as between a man and a woman is constitutional the answer is clear: Newsom is breaking the law and is therefore wrong. On the other hand, if you believe that the proposition is unconstitutional (as does Gavin) is it still wrong to flout it? I think most liberals would probably say yes. I disagree.

The question comes in two parts: Is it legal to flout the law and is it right? As for whether it is the right thing to do, it depends on how urgent you think gay marriage is. I don’t think anybody believes that the freedom riders who helped the civil rights movement were in the wrong, but you must certainly draw the line somewhere. In this case, that question must be answered by each person individually. As for myself, I think it was a brilliant political strategy for bringing the issue to the fore.

Legally, if the prop is found to be unconstitutional then Gavin Newsom gets out scot-free; no sanction is placed on him by the courts or any legal body. This leads us to the de-facto answer: If you accept that the proposition is unconstitutional, then Gavin is accused and stands trial, but is never actually found guilty of anything. To me, that means he didn’t do anything illegal in the first place.

This may not sit well with many people. If you have authoritarian impulses like me, you’ll instantly imagine horrible scenes of armed mayors roaming the streets, legalizing and illegalizing things at will. “Surely” we think, “it must be better or more legal to enforce the proposition and have the court to tell us it is unconstitutional”. Yet believing this leads us to contradiction: If Newsom is sued in his capacity as mayor by a gay man, found guilty and ordered to issue gay marriage licenses, Newsom is "better or more legal"; if Newsom is sued by the state, and found not guilty and allowed to keep on doing what he’s doing, Newsom is acting less legally. This seems so silly as to be wrong on its face.

In a metaphysical sense, it might be nice to believe that Newsom committed a crime, but by the magic of the California Supreme Court an enchanted spell can be cast back through time making Newsom’s actions legal, ex post facto. This is not very satisfying because one would imagine that if the court finds that a law is unconstitutional, that it was really unconstitutional the whole time. It’s not like their logic worked on Tuesday when they made the ruling but not the Monday before. I like to think that judges don’t make laws unconstitutional, they find laws unconstitutional. I like to think that judges don’t “make” the law anything: They just explain it.

Laws have to be interpreted by mayors and executives all the time. Every new law has to be interpreted by mayor’ without any input from the judiciary. When a constitutional amendment is passed, many laws that are clearly unconstitutional stop getting enforced because prosecutions are sure to fail. Interpreting happens all the time. I guess the only way to find out if an interpretation is legal or not, is to take it to court.

Update: It seems that the proposition is in fact a constitutional amendment, therefore the argument here does not apply. It argument is still sound assuming the prop is a law.

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posted by Tommaso Sciortino at 7:43 AM

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