Playing devil's advocate...

[Heyo]

Now, as those who know me know.. I have no problem with gay marriage..

I am against the amendment to ban it...

So this is just for thought exsercise...

I know that most DUers applauded the judge in California issuing marriage licenses to same sex couples, despite the fact that it is contrary to the law....because it's what he believed in....(and in a lot of ways so do I)

There's a big contrast with the prevailing DU opinion on judge Moore in Alabama and his infamous 10 commandment monument...

Same situation... law said one thing, judge went with his core beliefs and went contrary to the law... and one ended up fired...

I'm not saying either one is right or wrong for the purposes of this discussion..

Please don't think I am a holy roller, nothing could be farther from the truth.. I'm not...

However I am behind both judges in this case on principal, I'm not sure they should have violated the law, because I think it has the potential to hurt the cause..(more so in the Moore case).. Franky I am torn on my opinion on both of their actions with regard to sitting judges violating the law... as much as I admire the gay marriage thing...(and the 10 commandments thing too, for that matter, I am ready for how unpopular that opnion is on DU, putting on my flame suit.. Im sure you know that I mean no disrespect)

the reason for that sentiment regarding Moore I have is that, while I am *NOT* (stress this point) against seperation of church and state.. (the *last* thing I want is a theocracy or anything close)... in my opinion, and that's all it is is my own humble opinion, I didn't think that monument constituted a violation of the seperation of church and state.. I know most DUers disagree, that's totally legit. I know the view of Christians on DU recently has not been all that great... I think that creating laws or ruling in a case based on any religion constitutes an gross violation of S of C&S... but a stone monument is a stone monument.. goverment property shmuverment propterty... I don't think it was hurting anyone.

I am just curious about your opinions about the contrast of the 2 cases.

Heyo

[Cleita]

1. Mayor Newsome said it best.

Any law that promotes discrimination should not be considered valid and the ban on gay marriages in constitution is discriminatory.

The Ten Commandments fiasco was one religion imposing it's moral code on everyone else, whose moral code might be different. IMHO

I am not an expert on law but this is how I see it.

[foreigncorrespondent]

2. What Moore did...

...was break the law and diss the U.S. constitution.

What Newsom has done is show how the marriage laws contradicts both the Californian constitution and the U.S constitution.

There is no comparison between the two.

[Heyo]

3. I totally respect that opinion...

and I appreciate the replies....

Again, it's my (probably unpopular) opinion that that monument did not constitute imposing the 10 commandments on people..

A piece of stone is just that... it doesn't talk walk, think... you can just walk right by and ignore it...it just seems so harmless to me.

If judges are RULING in cases and being influenced by religion.. THAT'S a violation.. and for that there should be consequences...

I guess my thinking is different from alot of other DUers.. but hey, variety is the spice of life.. :toast:

regards all,
Heyo

[Cleita]

5. I disagree. Monuments since the Egyptians are put in place

to let the proles know whis in charge. Why do you think the Americans went after the statues of Saddam when they invaded Iraq? Why did the Pharoahs build huge monuments and the Romans?

[Bandit]

17. If a judge surrounds him/herself with religious items

And you are to go in front of him/her for whatever reason, you don't feel that is intimidating? You are about to be judged by a religious fanatic. I know it bothers the hell out of me. I want a judge that is totally impartial not openly slanted towards a certain fanaticism. Also Newsome is not a judge. A judge has a particular obligation to present themselves as totally fair and impartial. A Mayor by definition is political.

[pnb]

24. Any person with religious items around them is a fanatic?

OK...

[iverglas]

40. who said that?

"Any person with religious items around them is a fanatic?"

I just didn't see anybody saying any such thing, least of all the person you were responding to.

So I'm damned if I can figure out why you would say

"OK..."

... as if you were somehow, sarcastically, agreeing with something someone else said. Given that no one else said any such thing, and all.

Care to elucidate?

Where did you get the notion that someone, specifically the poster you were replying to, had said "Any person with religious items around them is a fanatic?", or anything that could honestly have been represented as amounting to that?

Perhaps if you explain the basis for what you said, I or someone else can assist you in understanding what you, uh, misunderstood.

And not to be rude, but I really do think that you have an obligation, as a participant in a civil discourse, to provide this explanation, given that what you have done is attribute a rather unpleasant statement to someone who, as far as I can tell, using my own probably limited powers of discernment but attempting to use them in good faith, did not make it.

.

[iverglas]

44. this enquiring mind would really like an answer (nt)

.

[Bandit]

48. I am the one the post was addressed to and I did refer to them as fanatic

I suppose that was not good terminoligy. Just because someone surrounds themselves with religious items does not make them fanatic however if it is a judge and those items are in the courtroom then yes I think it is fanaticism. A judge should avoid all appearance of partiality.

[iverglas]

49. yes --

but you did NOT say the words that were placed in your mouth:
"Any person with religious items around them is a fanatic".

Just because someone surrounds themselves with religious items does not make them fanatic however if it is a judge and those items are in the courtroom then yes I think it is fanaticism.

I can sure tell the difference between that last bit, which is obviously what you were saying, and "Any person with religious items around them is a fanatic".

Don't fall for the demagoguery! The mere fact that someone claims you said something improper, or that what you said meant something improper, doesn't mean that you said something improper or expressed yourself unclearly.

What it means is that the person making that claim -- that someone else said something or meant something that is not evident from what s/he actually said -- had better be prepared to back it up. Our friend here doesn't seem too interested in doing that.

.

[arewethereyet]

4. how is it Newsom's job to do this ?

thats a judicial matter. He could have directed his city atty's to pursue the matter... legally.

How are these people going to feel when they find out they really aren't married after all ? How has he served his constituants ?

[Cleita]

7. I think it was to get media attention that going through the courts

wouldn't have gotten. Effective wasn't it? It seems to be a form of protest. I said the same thing to a hippy friend of mine who was trying to get me to go to a war protest back in the sixties. I said that shouldn't we be working through the system to effect change? She said we'd be grannies before that happened. She was right.

[shimmergal]

13. I think the gay couples who've gone through the ceremony know

that it doesn't have legal standing, at least not yet. They don't care, for probably a multitude of reasons.

But Newsom's action, along with the TV coverage, has served to instantly give these unions a sort of de facto recognition. It's interesting -- almost unbelievable -- how the TV news coverage has referred to "Rosie O'Donnell and her longtime partner getting married today." NO qualifications in that blunt statement.

You can't stop social change, not even with a constitutional amendment. When we look back, these weddings at SF city hall will probably appear to be just as much of a turning point as Rosa Parks' refusal to take a back seat was for the Civil Rights movement.

[northofdenali]

6. Someone correct me if I am mistaken -

I believe I read that part of Newsomes reasoning is that the California state Constitution prohibits discrimination; hence, the "one man-one woman" law passed in 1996 is not legitimate.

This has only gone a short way in the legal system, whereas the Moore thing went as far as it could, and he was still ordered to remove the monument.

[Cleita]

8. He did say that. I didn't word in right in my reply, but he said it

was discriminatory and violated the rights of gays.

[Lars39]

9. Have you seen this site:

http://www.faithandaction.org/10commandments.html

Charleton Heston went around with some group(whose name escapes me)putting the 10 commandments on public land. This was done to promote the movie, The Ten Commandments. These folks want a theocracy. It is treasonous as far as I'm concerned.

[Lars39]

10. Here's the article concerning Heston and the movie promotion:

http://news.mysanantonio.com/story.cfm?xlc=1060661

[baldguy]

11. Totaly different.

Roy hasen't read or can't understand the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

George and Arnold havent't read or can't understand the Fourteenth: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

[FreeState]

12. You can not compare the two yet...

You can not compare the two yet because SF marriages have not reached the point of Moore in Alabama.

Moore put the 10 commandments up then went to court. The court ruled against him. He THEN refused to remove the monument and then was fired.

SF has started issuing licenses for marriage. The court HAS NOT ruled against them and issued an order to stop. The Mayor has said if the courts tells him to stop he will.

So lets see, the Judge refused to go with the law after it was found he was wrong. SF marriages have not been stopped by the courts, so there is no way to compare them in the way that Republicans would like to.

[mike1963]

14. Ding, ding! You have identified the difference nicely.

The situations while being roughly parallel in that they involve to a degree 'civil disobedience' are at vastly different points in the judicial process. Moore had already been ordered to remove his monument; the ceremonies in SF have yet to be ruled on by any court.

When courts render a decision the wingnuts agree with, they're "interpreting the law/constitution, etc." (2000 election as example) -
if it's a ruling they don't support, it's "judicial activism."

Not to make a pun, but in their strangely colored universe, only rightwing oxen can be 'gored.'

:eyes:

[kayell]

16. Just what I was about to post when yours finally turned up

Newsom's challenge will eventually bring the issue to the courts, where it will be decided. Someone pretty much had to do something like this to get it to the courts. So far the courts have not told SF to stop marrying people. Newsom has said that he will stop if the courts tell him too.

[x-g.o.p.er]

22. Same-sex marriage is already against the law in CA...

It's on the books already, so a judge shouldn't have to rule on it. It's already in black and white.

Is the law a good one? No, it withholds basic civil rights to a particular group of people. Doesn't matter....it's the law.

Change it, don't violate it. Newsom has set the progressive agenda back. His heart is in the right place, but his head is not.

[Rockholm]

27. But Has The Law Been Challenged In Court?

If not, the the law itself may be unconstitutional. That is why Bush wants a Federal Amendment. The US Constitution will ultimately allow gay marriage. If in theory, the Supreme Court was split at 4-4, gay marriage would then stand up against the challenge to the Constituion. (BTW, I make it 4-4 cause Scalia has already made his position know, so he will need to recuse himself)

[iverglas]

28. you've heard of the US Constitution, I presume?

Same-sex marriage is already against the law in CA...
It's on the books already, so a judge shouldn't have to
rule on it. It's already in black and white.

Assuming that you've heard of the US Constitution, can you explain what you think it's for? And maybe why the US Supreme Court has such a strange tendency to strike down laws that are inconsistent with it?

If the US Constitution provides that no state shall deny any person the equal protection of the law, and due process (which it does), and the California constitution prohibits discrimination (which I gather it does), could it be "the law" that women were not permitted to vote, or African-Americans were not permitted to attend public schools, or Muslims were not permitted to drive taxi cabs? How, exactly?

Obviously, the California legislature could enact such laws at the drop of a hat -- just introduce a bill, vote on it, and bingo! it's "the law".

Do you maybe think that it would be okay, in one of those cases, if a court told the legislature that its law was unconstitutional because it denied equal protection and due process, and struck that law down so that the state could not enforce it?

If so -- and dear me, I do hope it's so, i.e. that you do think that -- how would you distinguish between a law that prohibited San Francisco from issuing taxi licences to Muslims and a law that prohibited San Francisco from issuing marriage licences to same-sex couples?


Is the law a good one? No, it withholds basic
civil rights to a particular group of people.
Doesn't matter....it's the law.

Actually, it (I and many knowledgeable and sincere and honest people would argue) violates those people's constitutional rights to equal protection and due process. And that DOES matter, very much. The fact that it matters so much is the whole reason why there's a constitution in the first place -- to say how much it matters, and to prevent it happening.

We needn't get into the business of when it might be "okay" to break the law just yet.

What we need to do first is get you to acknowledge that this bizarre notion that there are no controls on the kinds of laws that legislatures may make, and that the law is always "the law", is simply false. No matter how often some speakers from the right wing like to spout it.

.

[x-g.o.p.er]

30. Yes, I have...

and I have defended it, against all enemies, both foreign and domestic, for the last 17 years. And I am not disagreeing with you that this is a law that that does not pass constitutional muster on several issues, which you have eloquently stated.

However, before one arbitrarily breaks the law, I feel that they should go about changing it first through the legal process.

When Judge Quidachay refused to stop the issuance of marriage licenses, he was violating the law. My point about the judge's ruling was related to that. It shouldn't have gone before a judge to be ruled on, because it has already been ruled against the law.

I don't question the mayor's intent to treat all people equally under the law. I question his methods. He should have filed a civil rights suit on the law to challenge the constitutionality of it. What he did by just ignoring the law was also wrong.

My point is that the law should be changed before they issued the licenses, that's all. And I think it would be relatively simple to prove that the law as violates equal protection and civil rigghts of homosexuals.

[FreeState]

32. Thats one way of doing it...

"My point is that the law should be changed before they issued the licenses, that's all. And I think it would be relatively simple to prove that the law as violates equal protection and civil Rights of homosexuals."

Yes but there are several ways of going about setting up a legal challenge to the law. To challenge it one must show that it is directly hurting people or stopping people from receiving equal treatment.

San Fran could have done this several ways. One way is to issue the marriage licenses and then let the courts rule on the matter. If the mayor had just asked he would have gotten an opinion from the court but there would be no way for the City to challenge the laws without having an actual party that has been harmed by the laws.

I could be wrong but thats how I see it anyway:)

[x-g.o.p.er]

33. Another way, then

Would have been to have a gay couple sue for the right to get married, gotten the law changed, and then issued the licenses.

[FreeState]

36. Thats true

its all on a matter of how who ever makes the challenge to the law feels would be most effective.

In this case I think having 6000+ co-defendants and the city is more likely to get the courts attention than 2 people challenging the law.

[iverglas]

37. actually

If the mayor had just asked he would have gotten
an opinion from the court but there would be no way
for the City to challenge the laws without having
an actual party that has been harmed by the laws.

I doubt that the mayor could have done that (me being an uninformed furriner, of course).

That is what was done in Massachusetts, by the state Senate, about a proposed law. It's also what the Canadian government has done about a possible law. Both asked the appropriate court for an opinion on the constitutionality of the legislation they were considering.

They were able to do that because the Massachusetts constitution (I believe) and the relevant Canadian legislation allow it to be done: allow the legislature or executive to request an "advisory opinion" from the court.

I doubt that a mayor would have that ability. There would really, therefore, have to be a case before the court, with an aggrieved party, in order for it to rule.

The other way of doing it, and arguably the "correct" way, would be for someone who was refused a marriage licence to bring an application to the court to compel the person who had refused it to issue it. That would involve either arguing that the law that prohibited issuing the marriage licence was unconstitutional or that the decision of the person who refused it (where there was no law prohibiting issuance) was arbitrary and unfair. And whatever the decision was, it would undoubtedly get appealed all the way up to the US Supreme Court.

And that's how to do things when there is the luxury of time. I can understand, though, that people might want to exercise the constitutional rights they now have, before those rights were taken away from them by a constitutional amendment prohibiting same-sex marriage, and that issuing licences now was the only way to enable them to do that.

Also, some of them would likely be dead, still unmarried, before there was a final decision on a challenge to the refusal to give them a marriage licence ...

.

[iverglas]

35. what are you talking about?

My point about the judge's ruling was related to that.
It shouldn't have gone before a judge to be ruled on,
because it has already been ruled against the law.

What is that supposed to mean? Who had "ruled" it to be against the law? What does "ruling" something to be "against the law" mean?

I'd hate to think that you were intentionally confusing

(a) making something against the law, by making a law prohibiting it; and

(b) ruling a law to be invalid, because it violates the constitution.

(a) is what legislatures do.
(b) is what courts do.
According to the constitution, not to some whim of my own.


He should have filed a civil rights suit on the law
to challenge the constitutionality of it. What he did
by just ignoring the law was also wrong.

So again, I'd have to ask ... but let me put it a little more obviously, since maybe my hypohtetical Muslims' inability to drive taxis wasn't disturbing enough.

If the legislature passed a law requiring that the police shoot shoplifters on sight, should they obey that law? If it passed a law requiring that all newborn babies have computer chips implanted in their earlobes to identify them, should doctors obey that law?

If it passed a law prohibiting women from disobeying their husbands, should the courts enforce it? If it passed a law requiring that African-Americans sit at the back of the bus on pain of imprisonment, should the courts sentence violators to prison?

What I gather the judge did in this case was not "ignore" the law. He refused to apply it because, in his considered judicial opinion, it was, for whatever reason, not validly illegal to issue the licences.


When Judge Quidachay refused to stop the issuance
of marriage licenses, he was violating the law.

I'm still not persuaded that you understand (or are acknowledging) the distinction between "law" and "constitution". Judges do not "obey" or "violate" laws like this -- they apply them or refuse to apply them.

A judge who refuses to apply a law because, in his/her judicial opinion and under the authority that s/he has been given to interpret and apply the constitution, the law is unconstitutional, is NOT "violating the law".

S/he may be acting outside the scope of his/her authority, or contrary to the rules that s/he is required to follow in interpreting and applying the constitution, but s/he is NOT "violating the law".

(Now, if a judge refused to sentence a person convicted by a jury of breaking a constitutionally valid law, that would be violating the law.)

It is NOT the job of legislatures or executives to "rule" on anything. It is their job to make laws, and it is then up to the courts to "rule" as to whether those laws are valid.

I hope I've helped clear up any confusion you may have been experiencing in this regard.

.

[historian]

15. Let's face it

any kid walking into school carrying daddy's gun, intent on mayhem, is not going to give the 10 commandments a glance. Even if he does i doubt it'll mean anyhting to him except to make him feel even braver and audicious.

[iverglas]

18. civil disobedience

It's one of those cruxes of things where the rules don't provide complete answers.

The big rule in the California case, as has been pointed out, is the constitutional one -- the state constitution prohibits discrimination, and also the US constitution prohibits states from denying the equal protection of the law to anyone. A law denying someone a marriage licence based on sexual orientation, or the sex of the partners, would be a violation of the constitutional rules.

It's the courts' job, under the arrangements that countries like Canada and the US have made, to decide whether any law is constitutional. A court decision that a law is constitutional doesn't actually mean that it is constitutional, any more than a court's decision that the moon is made of green cheese would mean that the moon is made of green cheese. On matters of fact, or matters of opinion, nobody's decision is correct simply by virtue of his/her authority to make it. But it *is* correct for the purposes for which it is made -- in the case of laws, for the purpose of enforcing them. The court's opinion is authoritative, "wrong" as it might sometimes be.

If a court rules that a law is unconstitutional, then it has always been unconstitutional. So there we have a little paradox. If someone disobeys a law that is subsequently ruled to be unconstitutional, was s/he breaking the law? An unconstitutional law is no law at all. And that's true even if the courts decide that the law is constitutional -- the courts' decision doesn't actually make it constitutional, it just makes it enforceable.

Sometimes the only way to get a law into court is to break it. It would be much nicer if the legislature would just see reason and repeal the law, but legislatures aren't always nice, and that is precisely the very reason why we have things like constitutions and constitutional courts. There *are* limits on legislative action.

Civil disobedience has developed out of that paradox -- that a law is unconstitutional (or "wrong", in less constitutionally structured situations) and yet it's still there, and still being enforced. There is a wrong that needs righting -- the very kind of wrong that the constitution was meant to right, or, where there is no constitution (say, in India a few decades ago), that all our notions of rights and freedoms were meant to prevent.

We develop rules and exceptions to rules and exceptions to exceptions, that all kind of spiral toward some "perfect" way of doing things, that will of course never exist. There will always be exceptions.

There are no formal rules of civil disobedience, i.e. we don't have laws that say when it's okay to break the law. (Although in some cases we do have formal rules about breaking laws, such as self-defence and necessity and coercion as acceptable reasons for breaking the criminal law.)

But there are rules that civilized people can generally agree on. They generally involve the requirement that there be a serious injustice that affects substantial numbers of people, and that there be a seriously arguable case that the law in question is unconstitutional (or "wrong"). And that violating the law does not cause harm to others.

And, of course, once the appropriate court has ruled that the law in question *is* constitutional (enforceable), that decision has to be respected. The next step for those who oppose the law, and are unable to have it repealed by the legislature, is revolution.

The actions of the ten-commandments judge simply did not meet the "rules" of civil disobedience, in my humble opinion. What *he* was doing was not just illegal, if that's what it was -- it was contrary to, not consistent with, the constitution. (And on that point, how come more people don't look to the "equal protection" clause and widen their fire from that "separation of church and state" business? His actions created an environment hostile to many people, in a place where they were entitled to equal protection; it discriminated against them in the place where they go to exercise their rights.)

The actions of the California marriage licence issuer were arguably consistent with the constitutional provisions in question, and a violation of an arguably unconstitutional law. They do fall within the "rules" of civil disobedience.

If the courts rule that the law he broke was valid, then the marriage licences will be invalid -- and no harm will have been done to anyone. And he could be penalized, in whatever way the law provides, for what he did.

However, if the courts ruled that what the ten-commandments judge did was validly illegal, harm may well have been done to the people negatively affected by his actions. Who knows, someone intimidated by his monument may have decided not to exercise his/her rights in court, believing that s/he would not get a fair hearing from a place so obviously biased against him/her.

These are things on which sincere people, speaking honestly and acting in good faith, can disagree. There may be sincere, honest, bona fide differences of opinions about what the two individuals did. There always will be, in any society and about anything, and that's why we have things like courts to arbitrate and be the final authority on what can be done, even though there is never any final authority about what is correct or "right".

But the genuine differences between the things they did do have to be acknowledged by anyone speaking sincerely, honestly and in good faith.

.

[ma4t]

19. Sorry, I have to disagree

"If the courts rule that the law he broke was valid, then the marriage licenses will be invalid -- and no harm will have been done to anyone."

I think the actions taken by the city authorities in San Francisco have done and will do serious harm regardless of and future court ruling.

What the mayor and the others have done is not civil disobedience. Civil disobedience is when a citizen disobeys a law out of conscience and is willing to take the consequences in order to demonstrate the unfairness of the law. MLK was a notable example of this, (see "Letters From a Birmingham Jail"). In San Francisco we have governmental authorities deliberately violating the law because they don't want to obey it, however laudable we may find their motives. This is what George Wallace did when he stood in the schoolhouse door.

The long-term damage being done in San Francisco is a diminution of the public's confidence that we can rely on government officials to uphold the law. Think where it could lead if it becomes acceptable for officials to ignore the law when it conflicts with their conscience. Would folks rejoice if a clerk somewhere decided that gun permit laws conflicted with the 2nd amendment and started giving out concealed carry permits to anyone who asked? Should an IRS agent be allowed to give you a tax refund because he decided, all by himself, that you needed the money?

I'm sure that I'll annoy most folks here, but if a government official cannot in clear conscience follow the law he is charged with enforcing or administering he should resign, not just ignore it. Those applauding the actions by government officials in San Francisco are rooting for anarchy, not human rights.

[iverglas]

20. and that's the argument

... against any form of civil disobedience:

Those applauding the actions by government officials in San Francisco are rooting for anarchy, not human rights.

You're right, though, I can't ignore the distinction between a government official disobeying the law and an individual or group of individuals disobeying the law, any more than anyone else ought to be allowed to ignore the distinction between "civil disobedience" in the pursuit of an individual's private, venal interests (which one might properly just call criminal), say, and civil disobedience in the pursuit of the interests of a group of demonstrably oppressed people.

I, however, might say that an official charged with administering a law has even more of a duty not to enforce an "unconstitutional" law, where acting counter to it meets the reasonable rules of civil disobedience. S/he is the one in the position to do that -- individuals wanting to get married, say, are not in a position to "break the law" that says they may not, since they can't break that law without having a marriage licence. As in many situations, I might say that the "duty" falls on the person with the ability.

Think where it could lead if it becomes acceptable for officials to ignore the law when it conflicts with their conscience. Would folks rejoice if a clerk somewhere decided that gun permit laws conflicted with the 2nd amendment and started giving out concealed carry permits to anyone who asked?

A good point. And that's a reason why I noted that once a law has been authoritatively held to be constitutional, breaking it is really no longer "civil disobedience". One might say the same if there has simply been no effort made to have the law authoritatively declared to be unconstitutional, or to have it repealed. Depending on the circumstances and one's own point of view, breaking a law that has been unsuccessfully challenged, or has never been challenged despite a chance to do so, would be "criminal" or "revolutionary".

Gun permit laws have never, to my knowledge, been challenged in a court on the basis of the second amendment to the US Constitution, although there have undoubtedly been a myriad of opportunities to do so. And there are certainly better arguments in support of the constitutionality of those laws than there are in support of the constitutionality of discriminatory marriage-licence laws -- in my opinion, and the opinion of many others I regard as speaking sincerely, honestly and in good faith.

It is also somewhat difficult to say, reasonably, that the harm potentially caused by issuing a marriage licence to a same-sex couple is equivalent to the harm potentially caused by issuing a concealed-carry firearms permit to a convicted murderer.

So there is some analogy between a marriage licence issuer who looks at an application by a same-sex couple and says "hm, the law that says I can't give them one is unconstitutional, so I should give them one" and a gun permit issuer who looks at an application by a released convicted murderer and says ""hm, the law that says I can't give him/her one is unconstitutional, so I should give her/her one". But, in my opinion, there are also very relevant differences, differences that are relevant enough that one could reasonably be called "civil disobedience" and the other could not.

The long-term damage being done in San Francisco is a diminution of the public's confidence that we can rely on government officials to uphold the law.

Well, on the other hand, the public might also, or rather, want to have confidence that officials will not act oppressively -- will uphold their rights, and the constitution, when the legislature directs them to trample on them. This may not seem particularly applicable in the US or countries like it, but it can be important in countries where the legislature (or executive) consistently acts arbitrarily or corruptly or violently toward citizens. Refusing to collect a tax --

Should an IRS agent be allowed to give you a tax refund because he decided, all by himself, that you needed the money?

-- could be an act of civil disobedience. I'm thinking of the father of a former client of mine, in Haiti some years ago, who was a collector of lottery ticket purchase money from ticket vendors. The national lottery was Baby Doc Duvalier's personal corrupt slush fund, and lottery vendors were required to pay loads of money in addition to the percentage of lottery ticket sales officially required, which went straight into his pocket: bribe money for the privilege of being licensed to sell lottery tickets. The man was acting as directed by the executive authority of the country -- but contrary to the interests of the people of the country. Refusing to collect that money, rather than resigning, I would argue, *would* have been a valid act of civil disobedience. Again, the circumstances have a somewhat determining effect on the assessment.

But again, you're right -- this is a consideration that applies to people in positions of authority and not to private individuals, and that may be a relevant distinction when it comes to assessing whether what was done qualifies as "civil disobedience".

And I am absolutely not saying "I'm right, you're wrong". There's no such thing in discussions of this sort. I don't even have a sewn-up opinion about the actions of the marriage licence issuer in California. (Although I do have about the actions of the ten commandments judge, which were blatantly contrary to a constitutional law, or whatever rule was in place to prevent what he did and was found to be valid.)

It's more than likely that you and I, say, would agree on things at the two ends of the spectrum -- some absolutely are genuine civil disobedience, some absolutely are not -- and continue to disagree on things in the middle. The best we can do is clarify the criteria that we are each applying, identify which we share, and each insist that the other apply them consistently (and honestly) to the situations we are considering.

(So let me add that my opening statement about yours, that it was what was said about *any* civil disobedience, was really hyperbole, for effect, and I wasn't trying to pretend that you were "one of those people" who don't recognize any civil disobedience as a valid activity!)

That's the kind of discourse *I* like. ;)

.

[ma4t]

26. agree with some, disagree with some

I think that our major difference is mainly one of semantics.

I think it is a stretch to term deliberate flaunting of the law "civil disobedience" when the actor is a government official rather than a private citizen.

I took no offense from your opening comment since I recognize and honor most forms of civil obedience when people are led by conscience. As I pointed out MLK was a prime example of the sort of civil obedience I respect.

However; I think that government officials should be held to a different standard when they are charged with enforcing or administering the law. As a trite example I think a police officer who offers perjoured testimony in a trial should be treated more severely than Joe Citizen. The police officer has not just a civic responsibility, but an official duty to obey the law.

One of the reasons our society functions as well as it does is that most of us generally believe we will get fair and equal treatment from government officials, according to the law. For example, while I may whine about the amount of my property tax, I feel confident that the amount I pay is the same anyone else with an equally valued property would pay. If the tax assessor was free, or felt himself to be, to disregard the valuation tables and make exceptions which according to his conscience were justified, soon the whole county would be up in arms. If this single mom deserves a break, or that couple has 3 kids in college, or this guy inherited a lot of money this year why should he not adjust their taxes accordingly? We do not allow this because the tax assessor is not allowed to set policy, he is charged with carrying the policy out.

To use another example, how would you feel if a judge dismissed a criminal case based on a faulty search warrant by the police, only to see the chief of police refuse to release the defendant? After all, the chief, with a clear conscience knows the defendant is guilty. Why can't he practice a little "civil disobedience" in order to protect the community?

These examples show why government officials have a greater duty to follow the law, at least that part they are charged with enforcing, than private citizens. If we do not insist on that then government becomes capricious rather than orderly and there is no point to arriving at laws democratically if each official is free to disregard them at will.

This is why I think the proper equivalent to civil disobedience by government officials is resignation. A perfect example is the "Saturday Night Massacre" during the Watergate times. A common mis perception that many have is that Pres. Nixon fired several in the Attorney General's office. What actually happened is that - starting with the AG, and going through several deputies - each resigned rather than carry out an order from Mr. Nixon which they could not, in good conscience do. If the mayor of San Francisco and his officials have a problem with the marriage law in California, they can appeal to those who have the responsibility of determining its legality, the courts. If they prevail, fine; if not, they should either follow the law or resign. That would be a principled approach. What is going on now is nothing but grandstanding.

Disclaimer: Nowhere in any of the above have I argued for or against gay marriages. My arguments have to do with the principle that government officials are bound by the law. If you have a problem with that principle then don't complain about anything that John Ashcroft does while he is in office.

[iverglas]

31. of course!

We're unlikely to agree ever! I don't mean you and me, I mean pretty much anybody examining such extremely complex issues, where so many criteria/principles are arguably relevant, and such different weight can be put on them for so many varying reasons.

Usually, what needs to be agreed on is "what is to be done", and since in this case you and I aren't going to be doing anything -- i.e. about the marriage licence issuer/issuing in California -- we can just agree to disagree. ;)

Now, if the issue were, say, "should homicide be illegal?", we might have to reach some agreement. But all we'd have to agree on is what is to be done, not *why*. That's essentially what the debate is about in the political arena, where something has to be done or not done; binary situation and all that. In the rest of life, we can just jabber on endlessly about the "why"s. ;)

I do still think that in some instances a govt. official may have a duty to disobey the law. Government officials are not merely agents of the executive -- they are servants of the people. Where an executive directs one of its agents to do something plainly contrary to the interests of the people -- particularly as those interests are expressed and protected in a constitution -- then the agent may have a higher duty.

I'm sure we'd both feel that way if the executive directed one of its agents to do something illegal -- not contrary to the constitution (although it might be that too), but actually contrary to the law. Like directing marriage licence issuers to issue marriage licences to twelve-year-olds. Should the issuer (a) refuse to do it, (b) do it, or (c) resign?

I'd say "refuse to do it". Resigning is both a luxury that a lot of people really don't have, and possibly unlikely to have any effect on the executive, which would just find someone else to do its bidding. And then we'd have twelve-year-olds being married off by their parents for profit, or some such.

Massive resignations can indeed have a salutory effect, by bringing public attention to a problem. Individual resignations might have that effect too, of course, and might be the best way of bringing attention to the problem and having the executive brought to heel. But they might not.

If all of Baby Doc's lottery collectors had resigned, most likely others would have stepped in. If they had all refused to collect the corrupt payments, the news might have got out more effectively and the people might have been encouraged to disobey other evil laws or refuse to allow other corrupt practices to continue. The lottery collectors might also have got shot. There might be limits to that "duty", of the people with the power to uphold the people's interests against corrupt or evil governments, to do so. Flip side of my coin. ;)

Another example of disobedience for other than personal or venal reasons is disobedience of military orders that conflict with the laws of warfare. Even before there were such "laws", they were enforced (at Nuremberg, e.g.). In that case, members of a military have not only the right, but the duty, to disobey unlawful orders. That right/duty is formally recognized in Canadian and USAmerican law, for instance.

Obviously, no right/duty of *civil* disobedience is recognized in law -- but arguably the right/duty comes before the law, as it did, or was generally regarded in at least some quarters as doing, in the case of the "laws" of warfare.

And that's where we get into the endless hyperbolic spiral -- getting always closer to a perfect formulation of a rule, but never arriving at it because a rule can never take into account all circumstances and combinations of circumstances, even if we agree on a rule for the circumstances we now know. How would we formulate a rule/law about when it's "okay" to break a law??

All we can do is, possibly, agree on what is to be done when someone does break it.

If the mayor of San Francisco and his officials have
a problem with the marriage law in California, they can
appeal to those who have the responsibility of determining
its legality, the courts. If they prevail, fine; if not,
they should either follow the law or resign. That would be
a principled approach. What is going on now is nothing but
grandstanding.

I don't necessarily disagree. It would be a relatively simple matter for someone to apply for a marriage licence, be refused, and bring an application for review of that decision claiming that the law under which it was made was unconstitutional (or that, if there is no such specific law, the administrative action was arbitrary).

In the circumstances, I could understand doing otherwise. Such a challenge would take years to be decided, by which time there might well be an amendment to the US Constitution making it impossible, by then, to obtain the marriage licence, since it would then be impossible for the state legislature to amend its law even if it wanted to. (How a court would deal with such a challenge -- where the "equal protection" requirement demanded that the licence be issued and the "no same-sex marriage" requirement demanded that it not be issued, I just dunno. Nothing like turning your constitution into a dog's breakfast, eh?)

But marriages performed under licences issued *before* that constitutional amendment might well be valid, and it's not unreasonable for people to want to have the benefit of the constitution as it now stands. So it would be not unreasonable to disobey the now-unconstitutional law. In my humblest opinion.

Disclaimer: Nowhere in any of the above have I argued
for or against gay marriages.

Absolutely! It's of the utmost importance to clarify the principles from which one is arguing, and to stick to the specifics of the thing one is arguing about.

But ...

My arguments have to do with the principle that government officials are bound by the law. If you have a problem with that principle then don't complain about anything that John Ashcroft does while he is in office.

... I don't agree that the principle you state is necessarily the only, or the overriding, principle in this instance.

And I do think that it is possible to make a principled argument that issuing marriage licences to same-sex couples in San Francisco really is different from just about anything John Ashcroft might do. ;)

.

[ParanoidPat]

38. What a foolish thing to say!

"Those applauding the actions by government officials in San Francisco are rooting for anarchy, not human rights."!

Lets take your line of thinking to the extreme shall we? :evilgrin:

Suppose an 'activist' legislature somewhere were to decide to pass a law stating that all people of a given race, sex or class should be rounded up, held without charge or trial and summarily executed. It would most certainly conflict with the federal and all state constitutions and deny the rights of those subjected to it but until struck down by a higher court, it would still be the law.
By your line of 'reasoning', despite the fact that those peoples constitutionally guaranteed rights would be violated, the authorities would have to round up, detain and execute them, until such a time as a higher court strikes it down, just because it's the law right now.
To do otherwise would be by your definition "rooting for anarchy". :crazy:

Be careful what you wish for.....

[ma4t]

45. Sorry, no sale

I have a couple of problems with your hypothetical scenario:

1. First of all a legislature is, by definition "activist" in that this is the body, under our system which defines what the law is. This is a small quibble, I'll grant.

2. Assuming the legislation you posit there is an avenue open to those among the authorities who think the law is not proper. They can ask for advisory opinions from the appropriate courts, and follow the appeals process if necessary. They can also publicize their opposition to the law and explain why they feel the way they do. They can attempt to rally public opinion to their side and lobby to have the law changed. Notice that all of these are lawful, honorable and ethical ways to confront the law.

Each of these approaches are available to the city fathers in San Francisco. Each approach was available to George Wallace in the '60s. However; in both cases they decided to substitute their own opinion of what the law should be for what it actually was. Each of them was (they think) defending a constitutional right. If you approve of one, based on principle, you have to approve the other. Myself, I prefer to have a government where the officials have respect for the law and attempt to obey it. I would hope I could persuade you likewise.

[x-g.o.p.er]

21. Newsom and Moore were wrong...

If they don't like the law, they simply cannot change it just because they want to. If you apply that reasoning to other scenarios, absolute chaos would ensue.

Work like hell to change the law, and if that fails, become an activist for change. Lawful change.

[Bandit]

23. What does one do when laws contradict each other?

IMO you follow the law that you feel best represents equality and Democracy.

[x-g.o.p.er]

25. You can't arbitrarily choose which laws

to follow and which laws to disobey, though. If you think something is wrong, work to legally change it. What Moore and Newsom did was no more than what a three year old on a playground would do by picking up his toys and going home because he didn't like something.

Again, I'm not saying the law is right or wrong. I'm saying it's the law, and you can't just not follow it because you don't want to.

If you follow that logic, why can't I just take a CD from Wal-Mart? They make billions every year, and they can get more CD's. Who am I harming?

I don't like the fact that I have to pay for things in a store; they should give them to me. And if they don't, I'll just take it.

Anyway, change the law if you don't like it. Picking and choosing which laws to obey is ridiculous, liberal or conservative.

[Ysabel]

34. yes we can break laws...

we can break any law any time we want to...

[Ysabel]

42. we are not generally crazy...

if there were no stop signs most people would still stop their cars rather than plow into someone - and yes - i know there are cases which contradict that - but those cases are the exception...

editing to add - having no laws - does not necessarily mean chaos...

[democratreformed]

29. Saw a lady on C-SPAN this morning asking "What if

judges took into their own hands to outlaw abortions in their districts?"

Something else to think about.

[iverglas]

39. but no

"What if judges took into their own hands
to outlaw abortions in their districts?"

Judges simply cannot OUTLAW anything! Not "may not" -- cannot.

The only way that a judge could "outlaw" abortion in their district would be if the legislature had already passed a law outlawing abortion, and the court upheld that law. In which case, the judge would be "disobeying" what the US Supreme Court has already firmly said on the matter, which judges are very much required to follow unless they can show how the case in front of them is different from the previous case -- and that judge should then probably be removed from the bench.

Do not fall for right-wing demagoguery! An apple is *not* an orange.

.

[ma4t]

46. Missed the point , I think

I may be wrong but I think you missed the point. I believe the lady in question was in effect asking the larger question, "If one official can ignore laws he doesn't like, why can't other officials ignore laws they don't like?"

I would hope that would give one pause when considering the implications.

[iverglas]

47. if that was the point

... it was very badly made, is all I could say.

I believe the lady in question was in effect asking
the larger question, "If one official can ignore laws he
doesn't like, why can't other officials ignore laws they
don't like?"

And there are perfectly good answers to that question, as the discussion in this thread points out. If you wanted to refer the woman in question here, she might learn about them.

I would hope that would give one pause when considering the implications.

Yup. And I would also be given pause by the implications of anyone's claim that no official ought ever to ignore or disobey a law.

How did that go? "But I was just following orders!"

Two extremes of the same spectrum. I wouldn't make my own stand on either end of it.

.

[LeahMira]

43. Judges can't outlaw anything.

"What if judges took into their own hands to outlaw abortions in their districts?"

Judges can't outlaw anything. They can rule on whether or not a law has been broken and whether or not a law is Constitutional. They can't even do that unless a case is brought before them.

[LeahMira]

41. I see it...

... as two sides of the same coin. In the Judge Moore case, religion was prevented from influencing civil issues by even its quiet presence in the monument. In San Francisco, religion is again being prevented from influencing civil issues, specifically who can or can't get married.

You have a point in saying that both people involved were standing up for what they believe and both face the inevitable consequences of violating the law.

To me, the reasons why they each did as they did define the cases.