The Right Coast

March 07, 2004
Legal help needed
By Tom Smith

The other day I asked some of my colleagues whether there was any reason that no court had been willing to enjoin San Francisco mayor what's-his-name from issuing marriage licenses to gay couples. I was assured that there was good reason to think that the statute forbidding gay marriage actually violated the state constitution and so on and so forth, and so it was not surprising that no court would issue an injunction to the effect of, please stop doing this patently illegal thing. I was pretty skeptical at the time, but didn't really feel like arguing about it, or even talking about it.

Now comes this column by my former colleague and brother of my friend Ahkil Amar, to wit, Vik Amar, who I know knows a lot about California law, and is no conservative. In fact, I would call him a Bay area Democrat, but not, I suppose, really on the left. A moderate. He seems to think there is no serious case at all that the marriage licenses are not illegal. So what is a poor corporations scholar to think?

Here's an excerpt:

California Statutes Clearly Do Prohibit Same-Sex Marriage

To begin with, it is quite clear that California statutes currently prohibit same-sex marriage. One provision of the Family Law Code says that "marriage" is a "personal relation arising out of a civil contract between a man and a woman."

Another provision states that those capable of providing consent to marriage are an "unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 years or older."

Finally, and perhaps most importantly, section 308.5 of the Family Law Code -- , which was enacted by the voters themselves as an initiative (Proposition 22) in the 2000 election -- , says that "only marriage between a man and a woman is valid or recognized in California."

The Constitutional Provision that Requires Enforcement Until a Court Says Otherwise

Thus, the only imaginable defense for Mayor Newsom's actions is his belief that these statutes violate the California Constitution. And that, indeed, has been his defense - that the oath he swore to uphold the California Constitution when he took office permits (indeed, perhaps compels) him to disregard state statutes that conflict with the highest of California's laws.

The problem for Mayor Newsom is a specific provision of the California Constitution. Article III, section 3.5 of the California Constitution says that an "administrative agency has no power to 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."

In other words, the California Constitution itself says that when an agency thinks that a statute violates the Constitution, the agency should continue to obey the statute until appellate courts have resolved the matter. Section 3.5 thus sets up an orderly process to prevent each agency from going its own way and disregarding the will of the legislature in the name of constitutional conscience.

Section 3.5 is the provision the Attorney General relied on heavily in making his request for an immediate cease-and-desist order, and to my mind, his argument is quite forceful. While I will of course be interested in seeing what Mayor Newsom's legal team says in the response it files today, my sense is that under Section 3.5, even if the Mayor is right in thinking that state statutes violate the Constitution, he was acting illegally in disregarding state statutes until the invalidity of those statutes had been made clear by the appellate courts.