The California State Supreme Court's decision yesterday to void the 4,000-odd same-sex marriage licenses that the city of San Francisco has issued since the beginning of the year has naturally generated a great deal of Net 'chatter', as I believe the intelligence authorities call it. As someone who (a) doesn't live in San Francisco, (b) isn't planning on marrying another man, and (c) doesn't have strong feelings per se either way, I have nothing to say about what we might call the "underlying issue". But I am interested in the narrower technical point about San Francisco's unique legal defense of its initiative. To me, Stanford Professor Richard Thompson Ford's February critique of the city's actions still seems unassailable. The gist of his argument is here:
It's simple black-letter law that otherwise valid legislation is presumed to be constitutional until and unless judicially invalidated. Until a court decides otherwise, then, local officials are bound to uphold state law.
There's a good reason that courts and not elected officials are in charge of invalidating legislation under constitutional norms. Not only are many local officials legally untrained and thus practically incompetent to make judgments on matters of constitutional law, but all local officials are subject to political pressures and thus likely to reach politically expedient conclusions about their constitutional duties. It's no accident that the constitutional epiphany that allowed gay marriage took place in a city with a large and politically powerful gay community: This particular Damascus road was paved with votes.
And that's why the city's argument—that local officials can act in contravention of state law based on their own untested interpretation of the constitution—is dangerous. My sympathies lie with the city—this time. But I worry about the types of constitutional revelations we might expect in other cities with different political constituencies. Employing San Francisco's argument, a local school board official who personally believes that the constitutional right to religious freedom entitles teachers to lead their classes in prayer could order school principals to allow the practice. A local official who personally believes affirmative action is unconstitutional could refuse to implement a state law requiring it.
And there's a more fundamental problem for the city's position: Ultimately it's the state and not the city that has the power to marry—the city performs marriages as an agent of the state. In the legal metaphysics of local power, the city simply doesn't have any authority in this area that the state doesn't give it. A city can't license marriages that the state does not recognize. So the real problem for the city is not so much that local officials violated the law when they ordered the marriages (in the way that I violate the law when I double park in front of the dry cleaners); it's that they exceeded their authority (just as I would if I were to print up "marriage licenses" and start issuing them out of my back door). In purporting to license same-sex marriages, the city is less scofflaw than charlatan.
Now, I know that one contributor to this blog probably has a lot to say about this particular issue. So I suppose I'm inviting her (whoops, gave it away) to convince me, a floating and relatively disinterested voter so to speak, that Professor Ford's argument is flawed. (Not that other comments aren't welcome too, naturally).
Posted by Alan Allport at August 13, 2004 08:08 AMSorry to disappoint but I've just been 'round the clock preparing a motion in an eviction defense case, and the brain doesn't want to wrap around any more legalism than strictly necessary.
On West Coast appellate legal stories generally it often helps to look up what Bob Egelko has to say in the San Francisco Chronicle. He's a lawyer himself, and a gentleman with good political taste.
I do think the anti-gay-marriage decision is bad but that's just from the gut. Ask me later about the cerebral stuff. Sorry not to be more finely discerning.
Rgds/M
Posted by: Martha Bridegam at August 13, 2004 08:36 PMquestion from someone unfamiliar with the complexities of US legal systems: how do judges become judges i.e. if these people are the ones who make the rulings on the law, how do we know they are unbiased?
Obviously, my only 'knowledge' comes from the Florida vote debacle of 2000 but I'm aware that that entailed Supreme Court judges appointed by politicians (is that correct?) rather than state level judges.
Long answer because American federalism allows much local eccentricity:
At the federal level -- the level of federal district court judges, federal circuit courts, and the Supreme Court -- judges are appointed by the President and confirmed by the Senate. (This is why the Senate Judiciary Committee hearing room was the scene of the dreadful Clarence Thomas hearings in the early '90s.) They serve for life under Article III, Section 1 of the U.S. Constitution, which provides in part:
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.This has been interpreted to mean federal and U.S. Supreme Court judges cannot be removed from office except by impeachment in Congress. Article III was designed as, and is considered to be, a protection against changing political fortunes and is on the whole a Good Thing. It means, for example, that some judges appointed by President Carter in the 1970s are still on the bench. Also that, in the 1950s-'70s especially, the Supreme Court had constitutionally protected job security and was able to stand up to first the Southern racists and then Nixon's claims of "executive privilege." The fact that a Supreme Court biased in favor of Republicans handed GW Bush the presidency is not a reason to object to Article III -- it's a reason to work for the decisive election of a different President who in his turn will appoint different kinds of judges to life terms.
At the state level the picture is very different. I'm not sure if all judges are elected, but they are in California -- however, it's by a system that tends to mute normal electoral politics. For one thing, such elections are "non-partisan" (no party identification permitted). For another, there are rules and expectations about decorum and not criticizing sitting judges in certain ways. Usually a vacancy on the bench appears some distance from the next election, and the Governor then appoints some active local lawyer to the seat, and so at the next election this new judge is actually seeking *re-* election. In other words, the only way to become a judge without being appointed by the Governor is to challenge a judge who is already sitting -- which is a thing lawyers may be reluctant to do since it makes waves in the local legal community.
In California lawyers get gubernatorial appointments to judgeships by becoming active in local bar associations, volunteering to preside over settlement conferences, taking part-time work as a "pro tem" traffic court commissioner, serving as a hearing officer in administrative hearings, and doing other apprentice-judge kinds of work to get noticed. Then there's the politics. Gray Davis -- the very gray man who preceded Schwarzenegger -- was known to have said he would not appoint anyone to a judgeship who did not have experience as a prosecutor (nothing said about experience in criminal defense!), so many ambitious lawyers ended up apprenticing themselves to local prosecutors' offices as part-time volunteers in order to gain such experience.
There was a famous recall election that unusually defeated three members of the California Supreme Court in the 1980s -- Cruz Reynoso, Joseph Grodin, and most of all Chief Justice Rose Bird. You can Google their names for more info if you like. The pretext for the recall was "law and order" -- these three opposed the death penalty -- but the insurance companies didn't like their liberal opinions on the rights of personal injury victims either.
I don't really know how it works in other states but hope this helps.
God, this whole recall idea is an absolute disaster! All of these direct-democracy pretensions in California only serve to give moneyed interests more avenues by which they can undermine the system, it seems.
Posted by: Alan Hogue at August 15, 2004 12:19 PMMartha seems to know more of the ins and outs, but I do know that state judges are elected in Texas and appointed in Virginia. My mother always railed about the concept of elected judges, and I think she has a point -- demagoguery makes for bad law.
You also get some obvious unfortunate effects when trial lawyers are campaign contributors and fundraisers for a judge.
Posted by: Ben Brumfield at August 16, 2004 06:13 AM