Last word

Having now read all of the California Supreme Court’s ruling today on the San Francisco same-sex marriages of this past winter, WWP can only scratch his head and wonder how this will play in Salem.

In turns, the California supremes have said:

• Local politicians do not determine whether laws are constitutional -- courts do. And courts alone.
• Local politicians must follow the laws as they are written and generally understood, even if they disagree with them or think they will be sued for enforcing them. It's the sole responsibility of the courts to sort out any ensuing problems, not the duty of the executive branch to attempt to avoid them in advance.
• Same-sex marriage is a statewide issue, not a local issue.
• There is no reason to believe that local politicians who believe opposite-sex-only marriage to be unconstitutional can be held personally liable for failing to issue same-sex marriage licenses.
• Contravening the law does not automatically generate an appeal of it.

It turns out that today's decision was all about process, and more importantly, about the responsibility of local officials to enforce law and the sole authority of courts to interpret it. Though today's decision dwells heavily on California case law and statutes, there are many principles throughout that endure state to state, as the opinion so ably notes.

Most important about today's decision is that it eviscerates the notion that local officials can decide constitutional matters and then act on them, or in the alternative, break the law with the hopes of getting a constitutional ruling in favor of their misdeeds. And, the court ruled, there’s no such thing as “I think this law is unconstitutional, so prove me wrong.” No, the court said; all laws are presumed constitutional until the court, or another authority explicitly granted the authority to do so under the constitution itself, says otherwise.

The authority issue is perhaps the only common thread between the cases in California and Oregon. Recall that in Oregon, the matter of gay marriage emerged not as a legal matter, but a political one, one that leaned heavily on the right of a municipality to interpret and act upon constitutional law. Of course, states differ -- but on matters like this, probably not as much on as one might suspect. In fact, in this case, with the issues so fairly and closely aligned, one might rightly suspect that the Oregon Supreme Court is already cutting and pasting parts of the California decision into the draft of its pending Oregon decision on the same matter, even as all of us read this. If so, it would provide a convenient political parachute for Oregon's ever-cautious court.

This is not to say that the Oregon Supreme Court will not have to rule on the question of same-sex marriage's constitutionality, which the California court artfully dodged. Given the manner in which the Oregon cases have evolved, this hardly seems an option here in Oregon. But then again, stranger things have happened in our courts.

Today's news is not necessarily bad news for friends of same-sex marriage, by the way. The California decision, by seizing the high ground in agreeing to the obvious [laws cannot be ignored, the court interprets the constitution], actually paves the way for the court to later declare same-sex marriage constitutional.

How so, you might ask?

The court seized the high ground today by unanimously agreeing to enforce the law, but delicately hinted that it is not ruling for or against the constitutionality of same-sex marriage. In fact, the absence of an opprobrium against same-sex marriage is telling. It's not so preposterous to think the California court might later [when the issue properly comes before it] use today's good will as a trump card to rule same-sex marriage constitutional -- perhaps unanimously.

Time will tell, of course. In the meantime, do not despair: Today's ruling is not a negative, not at all. As prudent courts often do, the California Supreme Court has redefined the question from a political matter to a singular constitutional question that only it now has the authority to decide. In time, this should demonstrate how the essential third branch of government often has, and must continue to have, the last word.

P.S.: b!X has promised his usual, thorough blow-by-blow account of the opinion, so be sure to check his site for updates.

Comments

[The One True b!X]

And I'm still behind tonight, heh. I've been trying to work out some stuff about my trip in November, and that's sort of been distracting me. So it likely won't appear tonight, but as I said in email to WWP earlier, since the Cali ruling (regardless of to what extent it is or is not applicable to process-related provisions of law in Oregon) deals with the question of authority, I have an obligation to examine it, given my own positions on the question of Multnomah County's actions.

So, just to let readers know, since I've been linked here, I'm not going to dodge this, I just don't have the time yet to get into it, and I don't want to do it half-assed, heh.

[Worldwide Pablo]

Well, there's one thing we all know and trust about you, b!X. You are never, as you say, "half-assed."

Which is why we all adore you.