by John M. Curtis
(310) 204-8700

Copyright February 17, 2004
All Rights Reserved.

treaming into San Francisco's City Hall, gay and lesbian couples waited in long lines to get hitched, thanks to the generosity of newly elected mayor Gavin Newsom. Newsom ordered the City Clerk to begin issuing marriage licenses to same-sexed couples, stealing the limelight from Boston's Beacon Street, where Massachusetts' Supreme Judicial Court ruled that same-sex civil unions violated the state's constitution, banning discrimination. Under current Massachusetts' law, the high court found civil unions unconstitutional, failing to give same-sexed couples equal protection. According to the high court, civil unions perpetuated the obsolete and unlawful “separate but equal” doctrine, banning segregation in the 1954 U.S. Supreme Court landmark ruling, Brown v. Board of Education [Topeka, KS]. Caught up in the euphoria, Newsom decided to make up his own rules.

      Newsom bypassed Proposition 22, California's 2000 “defense of marriage” law, defining marriage as a “personal relation arising out of civil contract between a man and a women.” Litigants before the Massachusetts' high court had every right to argue the constitutionality of same-sex civil unions. Newsom had no right to flout existing California law, no matter how wrong-headed or discriminatory. His interpretation that domestic partner laws violate the equal protection clause of California's constitution doesn't justify breaking the law before it's tested in the courts. Putting same-sex unions in the context of racial discrimination gave a brilliant legal rationale for gay marriage. If one accepts that (a) homosexuality is not an aberration, (b) it's an alternative developmental path and (c) it doesn't involve choice, then, like skin color, it's already protected under the 14th amendment.

      Violating his oath of office, San Francisco voters—indeed all Californians—have every right to recall Newsom for breaking state laws. No matter how discriminatory or unfair, elected officials must follow the laws or face the consequences. Playing to gays' sensitivities and lifelong yearnings, unlawfully issuing marriage licenses to same-sex couples sabotages the legitimate process by which to advance gay rights. “The horse is out of the barn,” said Jon Davidson, senior counsel with Lambda Legal, a gay civil rights group offering bad advice to San Francisco. “We now have same-sex couples who have married and have marriage licenses,” failing to mention that the licenses could be easily voided by court order. Liberty Counsel, a conservative Florida-based group, is already litigating against San Francisco for “utter disregard for the law of California.

      Newsom, in his haste, made certain that the focus now shifts from gay-marriage rights to his willful violation of California law. Bypassing the courts and ruling by fiat demonstrates contempt for the rule of law, setting up a backlash for both the cause he professes to support and his own political future. “These so-called marriage licenses are not worth the paper they are written on,” said Matthew Staver, president of Liberty Counsel, promising to invalidate hundreds of recently issued marriage licenses. “The local laws are preempted. This is not an area where localities are free to go their own way,” said University of Santa Clara Law School professor Gerald Uelman, a constitutional law expert, believing that Newsom's actions wouldn't stand. It's not up to Newsom to rule that California's current “defense of marriage” law violates civil liberties and the state's constitution.

      San Francisco's City and County Assessor Mabel Teng went over the deep end administering wedding vows to anxious couples tying the knot “You are making history and a significant statement in the country and state of California—that in San Francisco we treat every couple the same way,” said Teng, obviously swept up in the same euphoria destined to come back to earth. Like prisoners running the prisons, Newsom and Teng made a mockery of a legitimate constitutional issues requiring serious discussion. Now the legal showdown becomes not testing the constitutionality of domestic partner laws but San Francisco's outrageous abuse of its authority. Since the Massachusetts' high court ruled against civil union, Atty. Gen. Bill Lockyer is currently reviewing whether California Family Code statutes violate the state's constitution, including equal protection provisions.

      San Francisco's mayor Gavin Newsom and City and County Assessor Mabel Teng should resign in disgrace for violating current state laws. While they're philosophically correct, they're legally dead wrong to rule San Francisco like monarchs or dictators. No elected official, regardless of personal opinions, preferences or eccentricities, can take the law into their own hands. Many people sympathize with the plight of same-sex partners but there's a lawful way to redress grievances. “The mayor has done a very stupid thing,” said Rev. Lou Sheldon, head of the Traditional Values Coalition, a conservative family values lobbying group, suggesting that Newsom's actions might hurt Democrats during an election year. Unlawfully issuing marriage licenses showed bad judgment, displayed cosmic immaturity and revealed that Newsom isn't fit for elective office.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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