Thursday, March 11, 2004
california gay marriage on hold for now. court wants briefing on california constitution.
Volokh and Howard have the order.
covered by article 3, section 3.5 of the California Constitution:
An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:
(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.
I agree with b) but I think c) is unconstitutional where it conflicts with the supremacy clause. State officials take an oath to support the constitution and laws of the united states - not to wait for a court to do so. c) calls for state officials to either commit a felony (where the unconstitutional law infringes on rights under 18 usc 241) or to resign. This violates public policy.
Now, in the SF gay marriage situation, the mayor is relying on the state rather than federal constitution, but still has standing to raise the unconstitutionality of c) on overbreadth grounds... maybe. It's also hard to find a bright line between genuine reservations about constitutionality, and flimsy pretense.
For example, if a california statute banned interracial marriages, and the clerk denied a marriage license on that basis, the clerk could be sued, charged, and perhaps removed from office on malfeasance - i'm unclear on how that's handled.
My view on this topic - that state officials who swear to uphold the constitution are obligated to do so - is a minority one. Most officials given a choice of an unconstitutional policy under a statute, or upholding the constitution, will go with the policy. At which point I sue them in their personal capacity, and they get upset.
update: here's what i blogged i mean commented at alas a blog:
Posted by arbitraryaardvark
As a lawyer I find the california constitutional question an interesting one.
Here's a quote from JFK during the 1960 WVa primary.
".. so when any man stands on the steps of the capitol and takes the oath of office as president, he is swearing to uphold the separation of church and state....and if he breaks his oath, he is not only committing a crime against the constitution, for which Congress can impeach him -and should impeach him -but he is committing a sin against god."
the making of the president 1960, p. 108.
I think this says something about the SFCA situation, although it could also be applied to clinton or ashcroft.
A county might or might not be an administrative agency; it would take a california expert to sort that one out. The california constitution is right when it says agencies don't decide constitutional questions. But it is dead on wrong, imo, when it says agencies should not refrain from unconstitutional behavior. That, to me, violates the supremacy clause, and therefor that part of the california constitution is void.
The mayor has standing to raise that issue, even though his equal protection argument is, i'm pretty sure, based on the state constitution, not the federal one. So it's my position that the mayor is not prohibited from finding the state statute banning gay mariage to be unconstitutional, and choosing to disregard it.
This is an argument, not a prediction of how the court will rule. It is what I would say in an amicus brief if I did one, but I'm unlikely to - just lazy and shiftless I guess. And easily distracted by shiny objects.
Volokh and Howard have the order.
covered by article 3, section 3.5 of the California Constitution:
An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:
(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.
I agree with b) but I think c) is unconstitutional where it conflicts with the supremacy clause. State officials take an oath to support the constitution and laws of the united states - not to wait for a court to do so. c) calls for state officials to either commit a felony (where the unconstitutional law infringes on rights under 18 usc 241) or to resign. This violates public policy.
Now, in the SF gay marriage situation, the mayor is relying on the state rather than federal constitution, but still has standing to raise the unconstitutionality of c) on overbreadth grounds... maybe. It's also hard to find a bright line between genuine reservations about constitutionality, and flimsy pretense.
For example, if a california statute banned interracial marriages, and the clerk denied a marriage license on that basis, the clerk could be sued, charged, and perhaps removed from office on malfeasance - i'm unclear on how that's handled.
My view on this topic - that state officials who swear to uphold the constitution are obligated to do so - is a minority one. Most officials given a choice of an unconstitutional policy under a statute, or upholding the constitution, will go with the policy. At which point I sue them in their personal capacity, and they get upset.
update: here's what i blogged i mean commented at alas a blog:
Posted by arbitraryaardvark
As a lawyer I find the california constitutional question an interesting one.
Here's a quote from JFK during the 1960 WVa primary.
".. so when any man stands on the steps of the capitol and takes the oath of office as president, he is swearing to uphold the separation of church and state....and if he breaks his oath, he is not only committing a crime against the constitution, for which Congress can impeach him -and should impeach him -but he is committing a sin against god."
the making of the president 1960, p. 108.
I think this says something about the SFCA situation, although it could also be applied to clinton or ashcroft.
A county might or might not be an administrative agency; it would take a california expert to sort that one out. The california constitution is right when it says agencies don't decide constitutional questions. But it is dead on wrong, imo, when it says agencies should not refrain from unconstitutional behavior. That, to me, violates the supremacy clause, and therefor that part of the california constitution is void.
The mayor has standing to raise that issue, even though his equal protection argument is, i'm pretty sure, based on the state constitution, not the federal one. So it's my position that the mayor is not prohibited from finding the state statute banning gay mariage to be unconstitutional, and choosing to disregard it.
This is an argument, not a prediction of how the court will rule. It is what I would say in an amicus brief if I did one, but I'm unlikely to - just lazy and shiftless I guess. And easily distracted by shiny objects.
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