I’ve been thinking a lot about the gay weddings in San Francisco over the last few days. To me, they’re an amazing victory. It’s one of the biggest instances of civil disobedience to happen here in the U.S. within my lifetime. Mayor Gavin Newsom won’t have the long-term relevance of Rosa Parks, but it’s still good to see someone standing up and challenging injustice with such force.
Conservative commentators such as Rush Limbaugh have been comparing Mayor Newsom to Roy Moore. (Moore was the former Alabama Supreme Court Justice who displayed a Biblical statue in the state courthouse. When a court injunction expressly forced him to remove it, he refused, and saw it as an act of civil disobedience. Moore was ultimately removed from office over that incident.) James Taranto believes that Newsom should be held to the same scrutiny, and therefore the same punishment.
But Taranto’s wrong. The difference that Moore was violating a court order to remove the statue. By disobeying that ruling, he was in direct contempt of court. In contrast, Newsom has some legal basis for issuing the marriage licenses, albeit a shaky one. He believes that the California state constitution’s guarantee of equal protection trumps the legislature’s DOMA decree. While the specifics may be shaky, the general principle is a valid one: government officials should consider the constitution to be a higher authority than the legislature. And unless a court intervenes, he should have the authority to make this judgment call.
My friend John believes that gay activists should proceed with “baby steps.” We shouldn’t tackle the biggest issue just yet, because it’s too divisive. Instead we should proceed on smaller issues, and work our way up to the bigger issues.
But I’m convinced that this is a “baby step” for gay rights. For a variety of reasons, gay marriage has already become at the forefront of the political landscape. What better way to test the waters than by moving forward in just one city? It’s a much smaller step than if it was pursued on a nationwide scale, or even in just one state. Further, it’s not like it happened in Podunk, Mississippi. San Francisco is undoubtedly the most progressive city in the nation on gay rights. This is really the only step left for full gay equality in San Francisco.
I think California’s courts probably will issue an injunction. They may even declare the marriages to be null and void. But I also believe that issuing marriage licenses in the meantime certainly outweighs the potential harm. Look at how excited the couples are that you see on TV. Every wedding picture reminds America of the joy of being able to commit your life to your partner; the joy of being free at last. Every married couple provides a tangible beneficiary — a specific family that will be legally ripped apart if the marriages are nullified. Every wedding being performed in San Francisco makes it more and more likely that I eventually will be able to get married to someone I love.
14 comments ↓
Well said Ryan! Let’s keep our fingers crossed…maybe this will be the beginning of better things to come!
I believe the California anti-marriage law was a voter initiative (in 2000, Proposition 22) — not a legislative act. It is not difficult to get voter initiatives on the ballot in CA and they need not be constitutional. Many, including the famous Proposition 187, get struck down by the courts.
Given that even the AG of California has acknowledged that Mayor Newsome may be right—California’s constitution has even stronger equal protection provisions than the MA constitution—I think this is an entirely reasonable testing of the law. The courts have not yet spoken, so he’s well within his rights to do what he’s doing, until they do.
For the right-wing to compare him to Roy Moore 1) means they finally realize that Roy Moore is a law-breaking embarassment and 2) completely fails to understand the difference between a judge knowingly flaunting the law and a Mayor trying his best to reconcile two contradicting edicts. Their logic is along the lines of comparing Martin Luther King to Manuel Noreiga on the grounds that they both broke US laws and served time in American prisons.
VOTE DEMOCRATIC!
I totally disagree about the Alabama judge. On one hand, Rush Limbaugh’s comparison is not surprising to people familiar with Rush. Rush calls it like it is. Though in widely different struggles, Moore and Newson are BOTH civil dissidents! Isn’t the expression of religion a civil right? Or how about the celebration of the beliefs of different Americans. There’s nothing stopping a Hindu exhibit, (or perhaps and atheist exhibit?) in the same context as the Ten Commandment’s display, except for the court order that Moore refused to obey!! He’s defending everyone’s freedom to religion.
So we have one fighting for the freedom to express religion (I’d say that’s totally covered by the 1st amendment … not to shove religion in people’s faces, but to allow the presentation of all religions. Not to mention the cultural significance of the Ten Commandments in the US (Ten items in the original Bill of Rights.. Coincidence??) particularly in the South.) and we have one defending marriages for everyone. Moore’s move was just as significant as Newson’s in their respective areas. Comparing Moore to Noriega is silly, unless you consider Noriega to have been a significant civil dissident for his defiance of the US government (familiar isn’t it?). The argument that Newson bypassed Prop 22 on the grounds of California’s equal protection clause, is quite analogus to Moore’s bypassing of the court order to move the commandments for the sake of the First Amendment.
Couldn’t agree any more with you Ryan; it’s got to start in small steps and starting in San Francisco city is the smallest step. Hopefully other cities and states will follow. Great speech Ryan!
I read with interest Shawn’s comments. As something of an absolutist when it comes to the Establishment Clause, I don’t believe there is any role for religion in government. As a grandson of Holocaust survivors, I know all to well the dangers of mingling of “church” and “state.” However, our Supreme Court has been VERY clear that merely allowing a multitude of religions to present their opinion in official government matters is NOT acceptable. They ruled this is LEE v. WEISMAN and in LEMON v. KURZMAN. Certainly, reasonable people can disagree about what the appropriate amount of religion in government is… and about whether the Supreme Court’s jurisprudence is correct… but this is, I would argue, fairly settled case-law.
Much more importantly though, Shawn misses a very key concept in the democratic system—the idea of a court challenge: the right to test.
Newsome is TESTING what he perceives to be a contradiction between the state’s statutory law (Prop 22) and the state’s superceding constitutional law (the California Constitution). Under our system of (small “r”) republican democracy, this is totally appropriate.
Similarly, Judge Moore perceived a contradiction as well. For the record, if you read his statements, you’ll not that he did not cite the first amendment’s free exercise clause but rather GOD’S law (which he is welcome to follow, however our courts are governed by the United States Constitution, not Judge Moore’s religious interpretations). He had every right to test the law if he felt that the 1st amendment was on his side. When he lost, he had every right to appeal… all the way up to the Supreme Court of the United States. He did so.
AFTER the Court ruled against him, he CONTINUED to disobey the court order. THAT, and that alone, is why he was removed from office (and by a fairly conservative group of his peers).
Should the courts in California rule against San Francisco’s right to grant marriage licenses to Ryan and his future husband(s)… and should Newsome THEN ignore the Court order, you’d have a comparable situation. And rest assured, I will join both Shawn’s criticism of his behavior AND his comparison of Newsome to Moore.
In the meantime, the only comparison I’d make is between Shawn’s argument and the Rush Limbaugh show—inaccurate :). (Shawn, please don’t take this as anything more than friendly banter–tone does not always come across in text).
I read an interesting comment from The Gubenator’s staff today, the governor, “feels that we’ve come to a point where we’re starting down a dangerous path and it leads to anarchy at some point”
Someone missed English class the day they talked about redundancy and run-on sentences. At least it wasn’t a comma splice. I’m really not going to comment on it, but leave it for reflection. I will however attempt to respond to Josh without sticking my foot in my fingers (typing??) through grammatical embarrasment of my own.
I am an engineer, not a political or legal majored individual, so my ability to cite court cases and clauses is certainly limited. But I do think I base my arguments off of logic.
There is plenty of religion in our government that is strongly defended, and other times just overlooked. “In God We Trust” being one. And of course, “one nation, under God” added via the zealous conservatism of the early 50s. Should they be there? I’m sure you and I agree that with all do respect, they do not. It will be an interesting day on wall street when Mr. Greenspan says, “The economy? Don’t worry about it boys, Our Trust’s In God”.
Clearly no offense in the following remarks (referencing your comment on tone), but I really don’t see what the holocaust connection has to do with this discussion other than as a debate tactic to undermine my likelihood of challenging your subsequently presented position. First you compared Moore with Noriega, and now he’s up to Hilter’s level? Way to throw objectivity out of your argument. I’d personally avoid starting an argument by saying, “I’m a victim so I’m right.”
I am not familiar with the cases you mentioned, though I will try to read up on them. To me, the problem with regulating religious displays is a matter of where to draw the line. Clearly the only appropriate place to draw that line is such that NO religious groups are allowed access to public (meaning civic) forums for display/propaganda. Before the courts ruled, some public schools drew the line raised by bible study groups through simply banning all extracurricular activities. Court rulings banning displays by any and all religious groups are analogus.
But let’s look at the issue of church and state in a hypothetical public school through the San Francisco lens. In Friday’s ruling, Judge Ronald Evans Quidachay denied the Campaign for California Families’ request for a temporary restraining order, saying conservative groups failed to prove same-sex weddings would cause irreparable harm.
Perhaps liberal (or constitutionalists?) groups were able to prove irreparable harm to atheist children exposed to bible study groups in public schools. But I would contend that were a ruling made on the public school issue based upon the precedent of Friday’s decision, that a temporary order would have been passed to reinstate ALL groups, including the bible study group, on the grounds that irreparable harm was being done by denying extracurricular activities to all students. Who were the commandments harming?
In fact, French students are now banned from wearing any religious indentifying clothing or jewelry to school. It started with head scarves worn by 10 year old girls, but now it is crosses, stars of david and any other symbol. Is that your separation of church and state? A denuding of individuality in public arenas based on religion? Yet isn’t the expression of individuality based on sexuality a goal of the liberal agenda? I hope you see what I am getting at, and it is not a legal argument. It is a social statement.
Josh, you say I am missing a “key point.” Well, Newsom didn’t court challenge. He ordered the city to disobey the law (Prop 22) and it was the conservative groups that took this to court. Though perhaps in the end it is the same result. The problem is, he is stealing the show from Massachussetts, as Rep. Barney Frank has expressed concern over. Two months from now, Newsom’s move would be moot. Same sex marriage will be legal in Mass. (for Massachussetts citizens), and efforts to draft a state constitutional amendment for the 2006 ballot have already failed. Newsom’s anarchial stunt (which came AFTER and overshadowed the legislative failure) could taint a legitimate legal process (a parallel of which is occuring in Rhode Island) and result in a backlash in public opinion in those and other states.
I apologize for the ballooning of this discussion into other topics. I felt it necessary to provide my response, and that required a broader look at the issues. Despite being an engineer, I do understand the concepts of republican democracy (small r, small d). Not to open a new can of worms but one of my main concerns with the FMA isn’t even its content, but frankly I’m more concered over its impact on federalism, the Tenth Amendent and the ability for legitimate legal processes like those in Massachussetts and Rhode Island to unfold. I’m going to go back to ceramic research now, as I do not wish to get entrapped in a circular discussion in an area I am obviously not trained to visit beyond and elementary level.
just a quick follow up to Ryan’s original (and great!) post…
“James Taranto believes that Newsom should be held to the same scrutiny, and therefore the same punishment.”
Moore’s punishment elevates him to martyr status for the right to display religiously originating materials. Were Newsom to be punished in the same way, he’d STILL achieve the same status!!! Anyone who knows the name Matthew Shepard knows about the power of symoblic martyrdom
Forget about testing the waters in one city… The waters have already been drained and the boat is ready to set sail in an entire state! In none of my arguments am I saying Newsom is wrong. I’m as thrilled as anyone. His argument has a chance and I have my fingers crossed. It’s got to be one state at a time and we need 13 to defeat the FMA. (Whoa.. ironic how defending freedom comes down to 13 states…) The boldness of his move is like that of the Democratic legislators from Texas who fled the state to prevent redistricting. It’s Rosa Parksian (a new word?) and it will be remembered for a very long time.
haha.. stuck that foot in my fingers all right… i did a sh*^^y job editing that last one (thus it not making a lot of sense) It’s late. And I’m gonna stop posting now
This post is not about gay marriage, except for the last bit.
I think Shawn’s arguments about the freedom of religious expression are flawed and show a lack of understanding of the Ten Commandments and the interpretation thereof.
Commandment 1: Thou shalt have no other gods before me.
Commandment 2: Thou shalt not make unto thee any graven image…. Thou shalt not bow down thyself to them, nor serve them: for I the Lord thy God am a jealous God, … etc. etc.
Commandment 3: Thou shalt not take the name of the Lord thy God in vain ….
Commandment 4: Remember the Sabbath Day, to keep it holy….
I hear people say, “What’s so wrong posting a religious document that commands us not to kill, commit adultery, and lie?” and I have to laugh. Those people have obviously not internalized the first four commandments, which give instruction on how to relate to “God”, an uppercase, personal, singular God.
It is perfectly acceptable for Roy Moore to plaster his pickup truck with Jesus stickers, participate actively in his church, and each day pray for the strength needed to perform his duties. It is an entirely different thing to place a religious document specific to only two religions within the halls of a branch of government for the purpose of evangelizing.
I believe that teaching religion in schools is very important, as long as the purpose is to provide a framework wherein students can understand all major religions. Teaching that “Jesus Christ is our Lord and Saviour” is not acceptable when a student is compelled under threat of force to attend public school.
The same is true of the three branches of government. How does a Hindu, Buddhist, or athiest in Roy Moore’s district feel when they are required to be on a jury, and those in power have plastered an alien religious doctrine on the walls of the judiciary? What would happen, really, if they stood up and asked to post their own set of beliefs on the wall? Do you think Roy Moore would say, “Sure, we celebrate the freedom of all religions here.” I doubt it.
The founding fathers included the establishment clause because many were not even Christian. They understood what it was like to be a minority living amongst a religious majority and that no good can come when religion controls the police power of the state.
Some loose ends….
1) Yes, it is complete coincidence that we have ten amendments in the Bill of Rights and Ten Commandments. They have nothing to do with each other.
2)”The Constitution … shall be the supreme law of the land ….” (Article VI)
3) The Constitution does not mention God, god, Creator, or creator. The Declaration of Independence mentions “their Creator”, and the “Laws of Nature and of Nature’s God.” This is hardly the language used in Judeo-Christian circles to describe “God.” It is an acknowledgement of some higher power, but they choose specifically not to identify that power.
4) Great post Ryan. The only way to change the law is to challenge the law. I agree that the government should recognize a civil marriage contract between two individuals committed to each other for life. In the end, there are really no non-religious arguments against gay marriage. The government can’t argue against it on religious grounds, and religious groups are free to choose what types of marriages they will or will not perform. I agree that this is one more baby step, but it opened the door to court challenges that have no where to go but the Supreme Court.
Well, I am never sure how to respond when my arguments are challenged by criticisms of my use of run-on sentences. I will do my best to keep my sentences shorter in this post.
My Holocaust reference was not meant to poison the well. It was not meant to be a comparision. It was merely an explaination of me — someone that you don’t know personally — and explain where my personal views came from on Church and State. Just trying to give some background.
On the real point—which again Shawn poopoos:
Newsome is exercising a challenge to the law. You do not do that by going to court and suing to have the law overturned. Newsome, a straight man with no ostensible interest in marrying another male, would have no standing. He could show no injury that would meet the “distinct and palpable” test.
His oath of office was to uphold the CONSTITUTION of the United States and California. I believe that he was perfectly within his rights to ignore a law he believes to be unconstitutional (and I too believe to be so) until a court tells him otherwise.
That is the real difference. Moore tested the law by putting up the monument. His action was challenged. The court heard arguments, the court agreed with the challenge, the court issued an injunction. He disobeyed AFTER his “test” was handed back to him with a big F at the top.
Newsome tested the law by issuing marriage licenses. He action too is being challenged. The court heard arguments, and gave back the test marked “incomplete.” He can keep doing what he’s doing until they tell him otherwise.
And unlike Moore, I have no doubt that Newsome will respect the law of the land.
josh..
sorry.. i was poking fun at the Schwarzenegger run-on. Your grammar is great!
I have to take responsibility for going off on loose tangents the other night. Being exhausted and having some aggravating room mate issues over the weekend didn’t make for the best post.
I haven’t been arguing that Moore was right. And please don’t think I’m arguing that Newsom is wrong. All I’ve been interested in is expressing that fundamentally, their actions were similar and that comparing Moore to a drug trafficking dictator is disrespectful and unprofessional. No matter what context Rush made his comparison (i assume it wasn’t favorably) I still think the comparison was fair/ok. Josh and Paul, I totally understand and for the most part agree with what you guys are saying. I’m not arguing for or against, or even over the meaning of the establishment clause or religious affiliation and intent of founding fathers. (though I think that would be an interesting bit to look up for trivia! Paul, if you have something on that, i’d be interested to check it out.) I’ll just add that it’s my view - considering the 600 years or so leading up to the American Revolution - that the clause put the new government’s foot down on the same bitter religious divisions in the US (mostly papist/anglican/protestant at the time) that caused so much bloodshed in Europe and abroad (crusades, Roman Catholic church, Henry VIII and his daugher Queen Mary, we could make the list pages long!) Whatever reason(s) they added it, times change and today’s interpertation is the same as ever.. keep religion out of state affairs. What is different (and maybe it’s really not all the different. i don’t know.) is how the extent of enforcement of that clause is interperted.
I’m just arguing for Moore’s (and yours and my) right to dissent. But I’m not arguing over the establishment clause. And hell yes I’m defending that right even after a Supreme court ruling against Moore. I am NOT arguing that HE was right. But I got into this whole discussion because I was really appalled that that Josh directly compared him to a criminal dictator like Noriega. The comparison is an unfair attack on Moore.
My own opinion is that the display had no place as the centerpiece of the courthouse lobby. Frankly I think Moore was a little nuts about it. From what I remember reading in the news, no one ever ordered the display to be entirely removed from the courthouse (P&J, if I’m citing misinformation, please correct me). All he had to do was move it to a less conspicuous place. It could have been placed in a hallway somewhere else in the building and there would have been no more issue. Why didn’t he? I certainly don’t understand it. But as a private citizen (haha.
with a judge’s authority… ok, so not the average Joe.), he used his power and chose to dissent. In doing so, he chose his issue over his career.
Was it madness or something to respect? The man is going to be remembered as visionary by some, mad by others, but no matter what he deserves some respect for standing firm in his cause (Remember I’m NOT talking about the constitutionality of his cause!!) And maybe for Moore, he can sleep at night because he (in his own belief) sacrificed himself for his faith. The big social (not legal) issue that folks like Moore and many who are far more moderate, is that they are living in a time when the law of the land (which some of them are sworn to uphold) is coming into contradiction with what their faith tells them is a higher law. It’s not that hard for people to see that and think of historical (forget the religious part.. it’s what these people DID) figures who did the same thing like Abraham, Jesus, Mohammed, or Ghandi. They all challenged the law of the land, and at least in the beginning.. the law won. I’m not trying to compare Moore to those men. But to point out the internalized struggle for religious people when approached by changes and restrictions in the law of the land that contradict the higher law they follow. Just consider that social aspect and then argue that Moore deserves the comparison with Noriega. It’s my bad that my early on character defense of Moore was misinterperted as a legal defense.
Seeing I was claiming to be all about logic the other day, applying my above argument to oh… let’s say.. suicide bombers.. could seem to work as a justification of their actions. It’s a big flaw in my own argument.. but it’s also like the Noriega comparison. Moore is more like old ladies who chained themselves across the road in Little Valley NY to block the trucks carrying radioactive material to a state approved dumpsite in the early 90s. He was civilly disobedient. Not violently disobedient - and that’s the difference. He’s got all the piss and vinegar of those grandmothers (i’m not calling him a gandhi here lol but he’s got an activist spirit), but no ambition to cause pain and suffering.
Dissent might be our most important freedom. I think of state sodomy laws. The court ruled in favor of the states in the 80s. (was the tenth amendment used for upholding the laws then?) It didn’t mean that the dissenting losers (mainly the ACLU and various gay rights groups) just laid down and gave up… or the case that lead to last year’s landmark decision might never have succeeded. Isn’t that even remotely like Moore… testing… failing… and testing again? That’s all I’ve been saying. I’d really like to see your feedback on that Josh.
Shawn, I’m confused as to why you are so hung up on the notion that I compared Moore to Noreiga. If you refer back up to what I said it was:
[Referring to right-wingers comparing Moore to Newsome]
“Their logic is along the lines of comparing Martin Luther King to Manuel Noreiga on the grounds that they both broke US laws and served time in American prisons.”
I neither meant to suggest that Moore is into drug traffic nor that Mayor Newsome ought to win a Pulitzer Peace Prize. I just suggested that while many of those convicted of crimes in US courts did indeed break a law, we ought to draw a distinction between protesting without a parade permit and dealing narcotics. Similarly, we ought to draw a distinction between testing a law and continuing to violate a court order afterwards.
I agree with your general sentiment—but I also believe that one must face the consequences of one’s civil disobedience. Moore is, in my view, nuts. My biggest issue with him is that, as Chief Justice of the Alabama Supreme Court, he took an oath to uphold man-made laws… and then he clearly decided that he was NOT bound to follow those laws — and was ONLY bound by “God’s law.” If you want to judge by “God’s law,” apply to Him or Her for a judicial appointment. He didn’t–and in my view, he took a false oath–making him both a lawbreaker and a hypocrite.
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