Why the California Supreme Court Repudiated San Francisco's Issuance of Same-Sex Marriage Licenses

By VIKRAM DAVID AMAR
Tuesday, Aug. 17, 2004

Last Thursday, August 12, the California Supreme Court issued a ruling rebuffing San Francisco Mayor Gavin Newsom's efforts to authorize same-sex marriages in California. The outcome came as no surprise. Virtually every legal commentator had predicted that the court would reject the position Newsom has been taking.

Newsom contended that a Mayor in California has the power -- indeed, the duty -- to disregard state statutes that he believes violate the state or federal constitutions, even when those statutes have not been tested and invalidated by any court. But as I noted in a prior column, Newsom's broad claim is not very convincing.

What was less foreseeable than the high court's decision itself, however, was its reasoning. Exactly how would the California Supreme court explain its result? And exactly what - if anything - would the court say and do about the 4,000 or so marriage licenses that San Francisco had already issued to gay couples?

We now have the answers to those questions, and they provide some interesting food for thought.

An Abundance of Caution: Avoiding Certain Disputed Legal Questions

Overall, the court's opinion was an unusual mixture of cautious disinclination to decide certain disputed legal questions on the one hand, and broad rhetoric, reasoning and action on the other. Let us first analyze the careful aspects of the ruling.

To begin with, the court repeatedly and explicitly steered well clear of expressing any views on the "ultimate" question in the California gay marriage controversy -- whether the statutes that define marriage as only between a man and a woman are consistent with California's constitution.

In addition, the court made clear that the meaning -- as distinguished from the validity -- of various of the key statutes would also have to remain in dispute until another day. For example, one such statute is so-called Proposition 22 - a popularly-adopted initiative passed by California voters in 2000. Proposition 22 provides that "[o]nly marriage between a man and a woman is valid or recognized in California." And under California law, popularly-enacted initiative statutes ordinarily cannot be substantively amended by the legislature. So it becomes important to know exactly what Proposition 22 means to know exactly what the legislature cannot tinker with.

Right now, various legislators in the state are trying to rewrite the California family law code to allow same-sex marriage licenses to be issued within the State. They argue that such amendments do not interfere with Proposition 22, insofar as that measure was - notwithstanding its broad text - designed to deal only with California's recognition of marriages entered into in other states, and not intended to govern marriage licenses issued in-state. (For more on this issue, readers can refer to one of my earlier columns.)

The California court did not interpret Proposition 22 so as to either embrace or reject that reading. Instead, it left Proposition 22 out of its analysis altogether - on the ground that other California statutes clearly limit marriage in California to heterosexual couples only. These other statutes, because they do not take the form of initiatives, can be amended by the legislature at its will. We thus have no guidance on whether the current legislative proposals are prohibited by Proposition 22 - the key legal roadblock in their path.

Broad Rhetoric and Action: The Court Is Clear on the Limits of Mayoral Power

In contrast to its careful avoidance of the issues described above, the court said a lot - perhaps too much - about the limits on executive power that made Mayor Newsom's actions in directing the issuance of same-sex marriage licenses untenable. Again, Newsom claimed he had the power to disregard state statutes he believed to be unconstitutional under the state and/or federal constitutions.

In rejecting Newsom's claim, the court might have said simply that local executive officials - such as mayors -- who are part of a statewide hierarchical system lack such power. But at times in its opinion, the court went further to suggest that

no executive official - local or supreme - could ever have such a power.

Was this broad rejection of all executive power to decline to enforce based on constitutional objections sound? Dissenting Justice Kathryn Werdegar thought not - criticizing in particular a passage in which the majority intimates that even the President lacks the power to decline to enforce a ministerial law on the ground that he thinks it is unconstitutional. The court quotes an 1838 United States Supreme Court case for the proposition that "to contend that the obligation imposed on the president to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the constitution, and entirely inadmissible."

But more recent authority from the U.S. Supreme Court indicates that the President may indeed sometimes have that power. For instance, as then-Assistant Attorney General (and later acting Solicitor General) Walter Dellinger observed in a 1994 memo, "Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. . . . More recently, in Freytag v. Commissioner, all four of the Justices who addressed the issue agreed that the President has 'the power to veto encroaching laws. . . or even to disregard them when they are unconstitutional.'"

Are Executive Officers Competent to Make Constitutional Judgments?

The California court's broad rejection of executive power here seems to rest in part on a practical assessment of the aptitude of executive officers to make constitutional judgments without the benefit of prior judicial guidance. The court remarked, "Certainly attorneys have no monopoly on wisdom, but a person trained for three years or more in a college of law and then tempered with at least a decade of experience within the judicial system is likely to be far better equipped to make difficult constitutional judgments than a lay administrator with no background in the law."

But the comparison between the aptitude of courts and the aptitude of executive officials is a false one. The real comparison ought to be between the aptitude of the legislature that passed the statute in question, and the executive official who wants not to enforce it. Legislators are no more likely than are executive officials to be learned lawyers. Yet the California court's broad holding is that all executive officials must obey statutes that legislatures (apparently) think are constitutional, even though no court has yet validated them.

To put the point another way, the "presumption of constitutionality" that attaches to each legislative statute - and which does much work in the court's analysis - is itself undermined by the court's functional analysis of the legal sophistication of the relevant actors. There is no reason to believe that a legislature's instincts about what is constitutional are likely to be any better than an executive official's.

Indeed, many executive officers throughout American history have been among the most talented and insightful of constitutional lawyers. Perhaps the best example of this is President Abraham Lincoln, who - I daresay - was a more sophisticated constitutional lawyer and thinker than anyone on the U.S. Supreme Court during his day.

Why does the California Supreme court's disparagement of the capacities of all executive officials to make constitutional judgments matter? Because it is but one part of a pervasive court-centric perspective that has been repeatedly reinforced by the U.S. Supreme Court, and that is now internalized by all the key institutional actors, including high-level executive officials themselves.

Similar rhetoric and reasoning - when extrapolated -- leads to things like President George W. Bush signing a bill (the McCain-Feingold campaign finance reform proposal) into law even though he says (in his signing message, no less) that he thinks the bill is unconstitutional, but that this question is for the courts rather than the executive branch.

Nor was this broad repudiation of executive power necessary to resolve the Newsom case. As I have explained in an earlier column, a local California Mayor simply does not have the power to independently disregard statewide statutes, even if higher level executive officials - like a Governor - might. The court could easily have rested its opinion on this far narrower ground.

A Broad Rejection of the Marriage Licenses Already Issued

The California Supreme court also ruled quite broadly on another question: Do - or did

-- the licenses already issued by San Francisco to same-sex couples have any legal force and effect? The majority offer a blunt "No": Because the licenses were issued unlawfully, they never have had, and never will have, any effect at all.

To some extent, the majority's instinct is right: Until and unless California statutes defining marriage as between only men and women have been judicially invalidated, the San Francisco same-sex licenses cannot have any legal force - the persons who hold them cannot now enjoy any of the legal benefits distinctive to the institution of marriage. So couples possessing these licenses should know - and the California Supreme court was right to remind them - that these licenses should not currently be relied upon.

But the court went a step further. It said that even in the event that California marriage statutes are later invalidated by appellate courts, same sex couples would have to go through the marriage process (again) in order to obtain marital benefits. As the court put it: "[S]hould the current California statutes limiting marriage to a man and a woman ultimately be repealed or be held unconstitutional, the affected couples then would be free to obtain lawfully authorized marriage licenses." (Emphasis added.)

Analogies, however, suggest this is not necessarily such an obvious conclusion. Suppose, for example, a woman applied for admission to a public military university but was ineligible notwithstanding great grades and test scores, simply because state statutes prohibited women from attending. Suppose further that a courageous admissions officer nonetheless processed her application and sent her a letter of admission indicating that she qualified based on her grades and scores compared to those of other applicants that year, and based on his view that gender cannot be a ground for exclusion.

Such action by the admissions officer - in direct violation of state law - would not be "authorized." And yet after a suit challenging his action resulted in the invalidation of the gender-based admissions statute, would it be clear to everyone that the woman student would now need to reapply? I don't know.

Justice Werdegar's dissent invokes an even more powerful analogy. She observes that "interracial marriages that were void under antimiscegeny statutes at the time they were solemnized were nonetheless recognized as valid after the high court rejected those laws in Loving v. Virginia."

This analogy seems right on the money. At the time the interracial marriages were voided, no court had yet held the statutes banning interracial marriage to be unconstitutional. Yet after the Supreme Court so held, interracial marriages, suggests Werdegar, were recognized automatically. Why should same-sex marriages be treated differently?

The majority gave no adequate answer to Justice Werdegar's powerful analogy. And that is a bit of a shame, because breadth in an opinion is always most satisfying when accompanied by corresponding depth.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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