With luck, the mayor of San Francisco will be forced to PERSONALLY pay back the costs of this wonderful act of theater: the marriages are void ab initio under California law. He can issue marriage licenses as easily to a pair of ponies as to a pair of men or women-- when the ceremomy is performed, it doesn't make it a legal marriage.

Within the next couple of weeks, some courts are going to again get involved, and nullify what just happened. And the already hopelessly strapped financially City of San Francisco and State of California will pay the bill for it.

Andrew-
Each government official has the responsibility of interpreting and applying the U.S. constitution and their respective state constitution. That includes city officials in San Francisco. If their judgment conflicts with that of a court, then a court will decide the matter against them, and in our system of laws, that ends it for the time being. (Odd, then, that you lambast courts, which may very well uphold the result you seem to support.) But it's not wrong per se for them to hold a different opinion on the subject.

(Now, I don't think the S.F. politicians are acting on principle - I think they're being self-serving, by trying to issue the first valid same-sex marriage certificates before Massachusetts does. But, even if they are self-interested, they are making their stand in a constitutional and legal framework, not outside it.)

This is also true of the Massachusetts Supreme Judicial Court. Their decision holding that gay people have the right to marry is an application of the principles of due process and equal protection in the Massachusetts constitution, not just "based on personal beliefs". You even make their argument, namely that "while there are reasons, I don't think they're sufficient to justify preventing the institution." That's the essence of equal protection analysis: If you treat people differently, you need to have a good reason. You say there is no good reason, so why accuse judges of overreaching and making a power grab by agreeing?

It's also odd that you seem to be defending federalism while disapproving the actual workings of the "laboratories of the states". Massachusetts and California have their own processes to hash these issues out, and the judges and mayors are players in those processes, not the final arbiters. The people are still the final arbiters.

Less than forty years ago, it was still illegal in some states for a white person and a black person to marry. The Supreme Court of the United States put an end to those laws forever, because they were in conflict with the guarantee of equal protection. The Court was correct to do so, and I believe in time we will see that the acknowledgement of gay and lesbian people's rights is equally correct.

TD,

I don't doubt that the courts will eventually overturn these actions, but who knows how much it's going to cost the taxpayers of California? Further, this is a symptom as much as it is a specific problem. As I said, I'm in favor of the legalization of same sex marriages, so the end result of this is a good thing to my eyes, I'm far more concerned with the direction government is moving in this country.

Mithras,

I'm afraid I must disagree with a number of your points. First and foremost, it is not the responsibility of 'every government official' to interpret the Constitution. That is the responsibility of officials of the federal government. State and local officials are responsible to more local charters. Furthermore, even if I were to accept your interpretation, that doesn't give every government official the right to alter the law as they see fit. Let me offer an example and you tell me if this sounds like a good idea.

As you probably know, I'm in the Army. When I joined up, I swore an oath to uphold and defend the Constitution and to defend it against all enemies, foreign and domestic. You may recall that there was a time in the late 1990s when it was suggested that the President was using military strikes in order to distract public attention from his impeachment hearings. What if some military personnel had decided that was true, and that it therefore made the President a threat to the Constitution. So they acted on that belief. Would it help any if a court later decided that they were incorrect? Would they be right or wrong to interpret the Constitution and their duty to it in such a manner? I know where I stand on that question, but from your interpretation of how the system works, it appears we're on opposite sides.

Government officials have a responsibility to obey the laws. They don't have the latitude to decide which laws they can follow and which they will ignore because they believe they're unconstitutional. Should someone who believes Roe v. Wade is unconstitutional be permitted to ban abortion, even temporarily? These unilateral decisions by elected officials damage the very fabric of our system of government, and they should face not only civil, but criminal penalties for their actions. You want to fight for same sex marriage? You go through the legislature the way the system is designed to work.

To address some of your other points; I don't lambaste the courts per se, I lambaste judges who substitute their opinions for what is written in the law. It is that technique that has taken away what once made American unique: a written Constitution. Sure, we still have the document, but it doesn't really mean anything, because judges interpret it so liberally as to make it meaningless.

I never said it was wrong for anyone to hold different opinions, that's just a strawman you've placed in my mouth. I'm all in favor of people holding different opinions. I just don't think that they should act on them if it means they're violating the law.

As for the use of the courts to overturn things we both may find bad or even abhorrent, there is a difference between something being wrong and it being unconstitutional. I suggest you read the dissent for Lawrence for an excellent example of this. You truly typify the kind of person I was railing against in this post. You like the results, so you don't care how they were arrived at. What you either don't understand or don't believe possible is that what is sauce for the goose is sauce for the gander. We have already established that courts can mandate sweeping changes in society without there being any meaningful recourse for the people. You may feel comfortable believing that the tide of history is consistently towards greater freedom, so you're not concerned that courts are being permitted to act as the be-all and end-all of government. I'm not so sanguine. Perhaps the courts will always make decisions that I agree with, but I don't want to live in a system where my freedoms exist only at the sufferance of a small group of judges. Would you be so supportive of the courts if they decided that abortion violated the due process rights of the unborn, and so made abortion illegal throughout the United States?

Finally, as to federalism, I'm very much in favor of the several states doing things differently as decided by their elected representatives. But that's not what this is about. Had the people of California or Massachusetts voted on same sex marriage and decided to legalize it, I would be applauding them. Getting to the same result through executive fiat or the courts is not the same thing.

Andy,

I do understand what you are saying... but as a "people of Massachusetts", I feel really uncomfortable about the idea of me voting on other people's marriages, especially when 99.99% of the potential spouses in question are total strangers to me. If a friend wants my opinions about a partner, I'm happy to give it - but if the state wants me to vote on who people I don't even know can marry, that just seems not right to me.

What would happen if interracial marriage was put on a ballot in some parts of this country? What would happen if a bible belt state had a vote on whether it should be legal for christians to marry muslims or jewish people? Could a majority of voters decide to nullify childless marriages?

Marriage is such a personal decision. I don't think putting it to a general vote is the right way to handle it.

Andrew-
First and foremost, it is not the responsibility of 'every government official' to interpret the Constitution.

Sure it is. Your example of Army officers deciding the President was a threat to the Constitution was a bit over the top, but even so, I don't think it proves what you seek to prove. The reason why officers don't plot coups in the U.S. (or at least, don't act on any coups they do plot) is because of the military culture which respects chain of command and civilian supremacy.

Your position is actually dangerous to liberty. Here's why: The Courts only exist to fill in gaps in the Constitutional system; to act as a backstop. The executive and legislative branches do most of the work. Each elected and appointed official must decide for him- or herself whether a particular bill or action comports with the constitution. If I am a member of Congress, say, and I am presented with a piece of legislation that is novel, I have to determine for myself if it violates the right of free speech, for example. Otherwise, unless there was a Supreme Court decision on point, you'd have a system where people would abdicate responsibility for the constitutionality of their actions until a court did restrain them. If the President vetoes a piece of legislation because he thinks it's unconstitutional, even though there is no precedent that says it is, do you think the President's veto is illegitimate? Similarly, it is the duty of every citizen to judge whether a law or action of the government is constitutional, without regard to whether a court has ruled on it. Would you have it otherwise?

Of course, if a court of competent jurisdiction has ruled, then it is foolish (and possibly harmful) for elected officials to act as if it hasn't. What restrains officials from doing that is the risk of legal sanction, and the risk of being fired by the people. It's a risk we run, for the sake of making better decisions.

You ask, "Should someone who believes Roe v. Wade is unconstitutional be permitted to ban abortion, even temporarily?" Well, in fact, this past week, something like that happened in South Dakota. Will the world come to an end? No. It's what happens when the different sources of power in our federal system disagree. One party (the South Dakota legislature) acted, and another party (the courts, the S.D. senate, or governor) will stop them. Do you want to jail the S.D. House of Representatives for trying to change the law?

To get to the real case, has there been a decision on-point that says California's prohibition against same-sex marriage is not unconstitutional? Remember, there has to be a ruling both on federal and state constitutional grounds. And, as you point out, courts change their mind. It's commonly said that Roe v. Wade would not survive one or two more conservative appointments to the Supreme Court. Given that, wouldn't an elected official be tempted to see if their view of the constitution would be accepted now, even if it weren't accepted before?

The idea that elected officials should face criminal sanctions for trying to enforce their view of the constitution is absurd and dangerous. What if they try to change well-established law - and then win? The ultimate sanction for elected officials is at the ballot box.

Finally, as to federalism, I'm very much in favor of the several states doing things differently as decided by their elected representatives.

Not just elected representatives. That's a rather cramped view of the federal system. Each state (so far) has three branches of government. Whether you like it or not, you have to let those branches hash it out.

I think your view of the courts as being "anything goes" is overly simplistic. You accuse me of being result-oriented, but it sounds more like you just don't like the result, so you're unjustly accusing the judges of being unprincipled.

Do you think the decision which struck down anti-miscegenation laws was illegitimate, too? How about Brown v. Board?

"But that was a long time ago, and it went by the boards in the 20th century as courts began deciding what was legal based on personal beliefs rather than what was written...."

The 20th century? Don't you need to go back to Marbury v. Madison? Or did I miss the line in the Constitution that explains that the Supreme Court has the right to over-ride the Executive and Legislative Branch's interpretations of the Constitution?

Thomas Jefferson's view was that all three branches had equally valid powers of interpretation. So did Lincoln. It wasn't otherwise accepted by the other two branches until well into the 20th century, though neither did they make many efforts to defy the Court.

Really. Don't you have to go back to this root to be consistent with the view that only that which is explicit in the Constitution is legal?

"We have already established that courts can mandate sweeping changes in society without there being any meaningful recourse for the people."

Actually, Congress has the power to remove the Supreme Court's jurisdiction on any given issue by simple law (unless and until the Supreme Court decides that the specific issue is one that Congress cannot do so, it being, in their view, constitutionally mandated). Failing that, of course, there is passing a constitutional amendment. Difficult, to be sure, but not without meaning.

Heather,

I understand your reluctance to address such issues, but leaving it to the courts isn't any better. Somebody is going to make these decisions, and I can't see how letting four or five people be the final authority is somehow better than allowing the people the right to decide. Why is the vote of five people somehow superior to that?

Gary,

It was in the 20th century that the executive and legislature stopped utilitizing their own powers of government to counterbalance the Supremes. Remember when Andrew Jackson simply refused to carry out a Supreme Court decision, for example. Yes, Congress has the power, but they've abdicated that power, and we're all the poorer for it. This problem is not just because we've put bad judges on the courts; as I noted in my original essay, people like power, and they will tend to abuse it. The beauty of the Constitution was that it used that love of power to try and counterbalance the branches of government. The founders assumed that each branch would vigorously defend its prerogatives, therefore preventing any branch from growing too powerful.

I'm not trying to argue that the courts should have no power at all. Simply that we have a de facto situation now where the courts have the last say on virtually every issue, and that's not a republic, it's tyranny.

Further, my original concern was with a local government official who is breaking the law and is being cheered on by idiots like Mithras who are more interested in the end result than the process. If government officials can break the law as long as it suits them, then we aren't a nation of laws any more, are we?

Mithras,

Since you are apparently here only to misrepresent my position, I see no profit in trying to argue with you, because you're not arguing in good faith. However, I will make one final attempt.

First, I don't oppose gay marriage, I believe that it's the right thing to do. I said that right at the start of this post, and I've said it before on numerous occasions. So if you want to keep dragging out that strawman, do it elsewhere.

Of course my example was over the top, but it's simply the logical end result of your argument. If it's ok for government officials to break the law if they believe what they're doing is Constitutional, than what is wrong with military officers throwing out the President if they view him as a threat to the Constitution? I'm not arguing that it will or even could happen; I can't imagine a situation in which it could. But what makes it wrong under your logic?

As for your next strawman, that my position is dangerous to liberty, you're not making any sense. I've argued in the past that it is the responsibility of federal official to weight the constitutionality of a law prior to voting on it. I still believe that, and it's one of the many reasons I dislike President Bush. What does that have to do with obeying the law once it's passed? There is a difference between passing a law and obeying it. If you can't see that, than I can't really help you to understand it.

To Roe v. Wade, once again you're confusing the issue. I'm not arguing against a legislature deciding to make law, I'm arguing against an official breaking the law. How is this so hard to understand? The mayor of San Francisco has no authority to make law; he is an executive charged with upholding the law. The law in California says that marriage is for men and women only. It's terrific that the mayor disagrees with that, but that doesn't give him the right to disobey that law any more than Roy Moore (whom I'm sure you supported) had the right to display the Ten Commandments in his court.

You say that I have to let the branches of government hash it out, yet I've never argued otherwise. You have an amazing ability to put arguments in my mouth. I'll try to make it clear for you, though. The government of California is predicated on certain bases laid out in their state constitution. Power is split between the branches of government. If one branch oversteps its authority, it is the responsibility and the duty of the other branches to rein them in. That is what has happened here. The mayor is performing illegal acts. It is therefore the duty of the other branches to stop him from doing so.

I'd recommend you try actually reading my post again, but this time taking off your blinders. My post was discussing the trend towards tyranny in government. The issue of the San Francisco mayor is simply a symptom of the larger problem as I see it. I'm not interested in arguing the pros and cons of gay marriage, particularly since you are I are probably on the same side of the issue anyhow. I'm concerned that our country is abandoning its one guarantee of freedom: a written constitution.

"...I can't see how letting four or five people be the final authority is somehow better than allowing the people the right to decide. Why is the vote of five people somehow superior to that?"

I'm sure you know the conventional answer: the argument is that, in some or many cases, the five will be well-chosen experts, picked and agreed upon by both other branches of government, freed from the passions of the day, and thus able to exercise more dispassionate wisdom, as well as expertise in the precedent and reasoning of the law, than the massess caught up by the tyranny of the mob and the passions of the day.

It's the argument for the Republic, over the Democracy, of course.

But you know that, and are merely arguing for what you feel is a necessary redressing of the balance. Fair enough. I just can't resist answering some questions. :-)

I know we can both point to plenty of Supreme Court cases we each think was wrongly decided for some reason, even if we'll sometimes pick different cases. :-) But I imagine we can each also pick quite a few cases in which it seemed correctly judged that the President or Congress was acting un-Constitutionally. Yes?

Much of the problem comes from the now two centuries of precedent and legal theory, which truly only someone who devotes a great deal of time to exploring can begin to fully understand, let alone across the full sweep of the innumerable areas of law and legal theory, and still, in the end, so many of those who have devoted their lives to the study of Constitutional law will still firmly disagree with others equally expert, given the range of legal theories available. Most involved act in good faith, but reasonable people still find vast amounts to reasonably disagree about.

I don't know a "solution" to that. I doubt that tossing out most or much precedent is a good one, though. (I bring that up, because it would be required to make much of a stab at going to a significantly more "literalist" approach to the Constitution.)