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Mayor Gavin Newsom, Agent of the State?

From the steps of the California Supreme Court, one can easily see if people are lined up to enter San Francisco's City Hall. Perhaps Gavin Newsom figured, therefore, that he would save the other city attorneys in California the trouble. By issuing marriage licenses to people of the same sex, he earned the ire of the California attorney general, Bill Lockyer. Lockyer, who has been mentioned along with Treasurer Phil Angelides, as seeking to dethrone Herr Schwarzenegger in 2006 demanded that Newsom comply with Article III, sec 3.5 of the California Constitution, proclaiming that a state agency cannot determine if state law is unconstitutional.

Surprisingly, the Supreme Court of California seemed to indicate that Newsom's role as a mayor was to file suit, not to issue the licenses. The reasoning appeared to be that since there was no emergency, no reason that the perceived injury couldn't be fixed through conventional litigation, that Newsom (or any mayor) overstepped himself. While this irritated the judges, the Chief Deputy City Attorney, Therese Stewart, (herself a lesbian) proceeded to say that even if Newsom did not have the technical authority to issue the licenses, that they did not violate the California guidelines for marriage and therefore finding against Newsom's authority would not eo ipso invalidate the marriage licenses he issued to same-sex couples.

The California Supreme Court, despite spending almost as much time with Stewart as the representative for the Attorney General and the Alliance Defense Fund combined, is not as eager as it seems to rule against San Francisco. Article III sec. 3.5 was passed as a ballot measure in response to litigation between the Southern Pacific Railroad and the Public Utilities Commission. It has never been invoked on a mayor before. And it does not stop the couples from demanding that they have a right to marry. With that lawsuit not yet in the CA Supreme Court's docket, but plowing it's way through the trial circuit next door, nothing prevents the panel of six from rebuking Newsom and chiseling out the right for same-sex marriages in separate opinions.

But as Stewart posits, when a mayor in California is sworn in, he or she swears allegiance to the Constitution first and not to the state. Indeed, city officials are not able to be targeted by civil rights lawsuits which require the premise of a person acting "under color of state law". Therefore, even if state jurisprudence considers mayor and civic officials as "state agents" federal jurisprudence might not. However, federal agencies are not able to rule on the constitutionality of federal laws and have to comport to the same scheme that "section 3.5" imposes: only an appellate court can find a law unconstitutional.

But if this is all true, the California Supreme Court might have to declare the marriages invalid. That would create in effect a "Dred Scott" scenario for gay rights advocates, effectively denying the existence of injury because same-sex couples could not marry in the first place. And Justice Werdegar seemed most concerned about just that possibility, noting that perhaps the hardest matter to resolve would be to inform the couples that these marriages do not exist. Just how the Court handles that issue will tell us just what road the gay marriage debate will take.


posted by Thomas at 10:48 PM 0 comments