an icepick through the keyhole

Aside from the malformed sentence, surely you can see that he's exaggerating in order to make a point. I actually admire him for doing this as it shows that he's not letting the specifics of a topic affect his opinion that said topic is directly against the law. Personally, I am all for the state allowing same-sex marriage and I don't believe that Arnold really thinks that same-sex marriage is wrong either, but he is 100% accurate that California took a direct vote on the matter in question and the not-at-all-by-single-digits majority of the electorate said "no". I would think that Arnold was spitting in the very face of the law if he were to just ignore this direct violation of the law passed into effect not by the Legislature but by the People. I've no doubt that he, like myself, would much rather see the people involved in this (as the media seems to enjoy terming it) civil disobedience work collectively to change the law rather than blatantly defy it. If I were the presiding officer of a smaller group that had passed a bylaw in their governing documents and then the minority that disagreed with the bylaw just went ahead and did what they wanted any way in direct violation of the bylaws you had better believe that I would have a serious problem with it. You simply don't have to agree with the law to follow it, your honor. Surely you've hard at least one instance on the bench where you had to enforce the law even if you didn't agree with the very law you were enforcing?

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Firstly, I have never been fond of slippery slope arguments. They are generally disingenous, and hyperbole of this particular sort is inanity of the first order as you're not just comparing apples to oranges, but making an association that is in extremely poor taste. To even attempt to connect gay marriage to drug peddling is just plain offensive.

Secondly, Schwarzenegger is not an enforcer of the law. He has no constitutional authority to order the mayor of San Francisco to do anything, and despite his attempt to do so, he also has no constitutional authority to tell the Attorney-General of California to enforce the law either.

Yes, Proposition 22 was voted on, and passed. Yes, as it stands, the licensing of gay marriage is ultra vires according to state law. However, the legal issues are far from settled. The law may be unconstitutional. Because of it's federal implications, it may have to go as far as the Supreme Court.

Schwarzeneggar is only right in one thing - it's up to the courts. And a challenge is being mounted in the courts as to the legality of the licenses. It's just that the court, in its wisdom, has also refused to issue an injunction to stop the issuing of such licenses until the final determination of the issue. Why? Because it was unconvinced that allowing the marriages to continue would cause irreparable harm, which is the standard required in such injunctions.

Schwarzenegger's justification for being involved in this is tenuous at best - it's not a legal one, not a gubernatorial one. It's political. It's not a question of ignoring - he just has no jurisdiction. A more sensible answer would have been, "Well, it's being decided by the courts, and I have every confidence that the will of the people of California will be eventually upheld." But no, he had to take a particular stand because he wanted to pander to the Republican crowd. He can urge all he likes - he's about as impotent as a 85-year-old who had his supply of Viagara cut off by Medicare cuts.

He has no official influence on what is about to happen. He's getting involved in something he has no business being involved in purely for political capital. That is why he deserves ridicule, and contempt.

As for enforcing a law I didn't agree with - that's a whole different context, and a whole different justification. As a prosecutor, it was my job to enforce the law. As a judge, it was my job to decide the law. In both cases, I was involved directly with the system. Der Gropenführer cannot say the same.

P.S. You planning to drop by anytime soon? :(

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mgrasso.livejournal.com

Secondly, Schwarzenegger is not an enforcer of the law. He has no constitutional authority to order the mayor of San Francisco to do anything, and despite his attempt to do so, he also has no constitutional authority to tell the Attorney-General of California to enforce the law either.

Wait, I'm confused: is the role of the executive branch in California different from the role of the executive branch everywhere else? Because unless my junior high social studies teachers were lying to me, it's precisely the role of the executive branch to enforce the laws passed by the legislative branch, or, in this case, by referendum.

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The executive has many components - it's not a monolithic entity. A component of the executive is the Attorney-General, and I am presuming, from remarks made by Bill Lockyer, the California State Attorney-General, that the AG's office has sole discretion as to determine legal action.

This is not unusual. Even the Office of the President, for example, cannot direct the Justice Department who to prosecute or not. Sure, the Governator can suggest, he can urge, he can request - but what he cannot do, legally, is order the AG to exercise his discretion a particular way.

As Lockyer says, "The governor can direct the Highway Patrol. He can direct the next 'Terminator 4' movie if he chooses. But he can't direct the attorney general in the way he's attempted to do."

So to answer your question - while it's the AG's role to enforce the law, and the AG is part of the executive, it's not quite the same as saying the executive enforces the law.

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mgrasso.livejournal.com

Interesting distinction. I wouldn't have necessarily made that division in my own head, because I pretty much equate the entire executive branch with enforcement of existing laws. But it also sounds like the separately-elected nature of state government (Lockyer's a Democrat, I assume?) is creating a conflict between components of the executive. Which seems weird and illogical in some ways.

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Yes, Lockyer's a Democrat, but there's really no conflict here, because the AG is defending Prop 22 in the lawsuit - he's said as much himself. Also, that's his job, and no-one should fault him for that.

(even Thurgood Marshall, as Solicitor General during the Supreme Court hearing of Miranda v. Arizona had to argue against the civil rights of Ernest Miranda - something that was really contrary to his own feelings - because that was the position of the US Attorney General at the time)

What Lockyer is saying, though, is just that Schwarzenegger has done something he has no authority to - direct the AG to a particular course of action, and that the "directive" by Schwarzenegger is an empty gesture for political consumption rather than an exercise of any real legal authority.

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Here's the source:
The Governor is vested under the California Constitution with the supreme executive power of the state and has the duty to ensure that the laws of the state are faithfully executed.

In the oath of office for a state's Executive, they all swear to uphold and defend the Constitution of their respective states. From that Constitution springs the authority of the Legislature and the electorate to pass laws into effect that inherit their legitimacy from the Constitution. I agree that the law in question of this situation is subject to judicial review in potential violation of the equal protection law of California, it still does not make Proposition 22 and less of a legally binding document. To my knowledge, no judge has issued a stay of enforcement to Proposition 22 so this makes the actions of Gavin Newsom in direct and unambiguous violation of California law.

Now I'll certainly agree that the legal challenge is legitimate here but I would seriously question the legitimacy of the actions of direct violation of the law in order to make one's actions supported by the law. You can't flaunt it one minute and cower behind it's protections the next (assuming Proposition 22 were to be overturned).

As to the political issue, it's just the same on Newsom's side. If you don't think that San Francisco started doing this prior to Massachusetts for political reasons then you're fooling yourself. Newsom wanted to be the first kid on the block with the proverbial new toy but he lacks one extremely important component that any official in Mass has: Legal authority.

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You can't cower behind a law that has been overturned - got to be careful about the phrasing there - but I know what you're trying to say. The tension between working outside the law to restore the law is a question that has persisted throughout history. Take the entire idea of "regulation" (or, as another era called it, "vigilantism") to begin with. But the argument itself is not as simple as it may appear, primarily because the law itself is not monolithic - violating part of it does not necessarily render the rest of it invalid. To paraphrase Gary Trudeau, the rule of law is not like virgnity - it does not vanish at the first violation. But that's a whole other discussion.

Schwarzenneger, despite what the web page might say, does not have the constitutional authority to direct the AG to do anything. The page may say he has the duty to ensure the laws of the state are upheld, but it says nothing about the mechanisms that allow him to do that. The constitution gives the governor very specific executive powers. To go beyond those is just as ultra vires as the actions of the mayor.

I agree entirely that as it is now, the issuing of licenses is against Prop 22. But sadly, aside from being a concerned citizen, the machinations of the mayor and the actions of the City of San Francisco in suing the state over the constitutionality of Prop 22 and its flaunting of its violations of the same, it's just none of his beeswax. It's between the City and the law enforcement system of the state.

The original point of my commentary was to pour scorn on Schwarzenneger and his attempt to associate gay marriage with drug dealing and deadly weaponry. I stand by that comment.

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I feel that Schwarzenegger is the only Republican not making a slippery slope argument. He is, however, using hyperbole. He is comparing the not-quite-legal marriage licenses in San Francisco to the hypothetical not-quite-legal assault weapon licenses. And he's right that it's a similar thing. What he forgets, though, is that there are precisely three ways to change a law.

1. You force the legislature to change it for you.
2. You take it to court and force them to change it for you.
3. You ignore it completely and the legislature or courts changes the law for you.

Numer three is the most politically inconvenient, but it is sometimes the only one that works.

I also disagree with any argument that states the law should be one way because the majority wishes it so. The law does not exist to protect the majority, it exists to protect the minority. It does not exist to protect the strong, it exists to protect the weak. It does not exist to protect the wise, it exists to protect the foolish. I could go on, but I'm sure you get what I'm saying. Even if every single person in California was heterosexual and no gay people were ever born or moved there, discrimination based on sex is still wrong.

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I'd like to strike that last paragraph from the record. I couldn't read Jost's post when I was replying and notice now that he was commenting on the existence, not the rightness of the marriage discrimination.

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I could never argue that discrimination is right, but I sure as heck can argue about the duty of civil servants to uphold their oath of office. }:-)

I would be the first person to vote for the state (in my case Alabama, not California) to remove any boundaries on gender in marriage certificates, but that's got to be done in a legal manner. When our elected official just pick and choose which laws to follow erodes the very foundation of our society; that we abide by the laws that govern us. You've noted further down that the upholding of law by civil servants is their duty and I agree with that. I also agree that until such time as the law is changed that anybody who deliberately violates the law for whatever reason is guilty of breaking said law; regardless of the just or unjust nature of that law. Perhaps I'm just a person who feels the need to work within the system to affect real change in the system itself.

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The second tenet of Civil Disobedience is to take the punishment for disobeying the law.

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A slippery slope argument is, "If A happens now, then inevitably B, the next worse thing will happen next." This is exactly what he's saying.

"If we issue gay marriage licenses in violation of the law now, then inevitably we will issue licenses for assault weapons and drug dealing in violation of the law next." As if one had anything to do with the other.

That is disingenous, to say the least. It's also as offensive as saying, "If we let blacks into the neighborhood now, we'll be letting convicted child molesters into the neighborhood next." As if one had anything to do with the other.

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elf

agree, agree.

Blacks didn't get the right to sit at the front of the bus by petitioning the legislature to change an unjust law. They got it by *breaking* the law, and by convincing enough people, in court, that the law was unfair.

This is civil disobediance on a scale we've never seen before. Mayors have just as much right as everyone else to decide a law is unconstitutional, and they're going to ignore it.

And I firmly believe that if he didn't have the support of thousands of civil servants in SF, his decision to issue marriage licences to same-sex couples would've fallen flat.

(Note: not "gay marriage licences." Sexual orientation is not part of our marriage licencing system. This may be an important piece of semantics at some point.... like when some 87-year-old invalid decides to marry her 32-year-old female nurse, in order to assure her inheritance rights, and because they both love & care for each other, without any sexual attraction.)

I also disagree with any argument that states the law should be one way because the majority wishes it so.

Yeah, the majority has always been so good about assuring the civil rights of minorities... notice how they jumped to integrate schools without any help from the courts. ;/

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This is civil disobediance on a scale we've never seen before. Mayors have just as much right as everyone else to decide a law is unconstitutional, and they're going to ignore it.

Private Citizens have a duty to disobey unjust laws. Civil servants, as has been argued repeatedly on this thread, have a duty to uphold them. I'm not sure where to draw the line in the case of mayors, but I feel this is merely an attempt by San Francisco to steal our thunder.

like when some 87-year-old invalid decides to marry her 32-year-old female nurse, in order to assure her inheritance rights, and because they both love & care for each other.

This I feel is an abuse of marriage laws. There are situations where it is simply a hell of a lot easier to get married than to hire lawyers, but Marriage is more than inheritance + love + care.

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elf

I think that SF's gay marriages are indeed a direct response to the Mass. ruling... that the activists here said, "no way are the first gay marriages in the US gonna be in Boston" and went from there. :/

That said, I'm not unhappy about it (and I like to think that's not just 'cos I live across the bay from SF.) I think it might need to happen this way: one place goes through the hassles of getting it legitimized in court, and someone else tackles the actually handing out the first licenses part--I hope this will distract the anti-gay crowd so they can't do a full assault on the legal system in Massachusetts.

I know several legislators in Mass are extremely unhappy with the ruling, and will do everything they can to avoid actually handing out the licenses. They've got until early May to re-write the appropriate laws... but what happens if they just drag their feet? Do they go to jail (become "martyrs" to the cause of marriage), or get thrown out of office... or do the same-sex couples just wait a bit long while the courts issue proclamations that the legislators refuse to uphold?

This way, there's a new problem: laws being ignored without judicial sanction, and legislators split on the issue of what to do about it.

It's creating a tangled mess. I *like* tangled messes. I think it's got a much stronger hold by showing up in several areas with different legal statuses.

(I dunno what exactly I think about civil servants doing civil disobedience. But AFAIK the mayor doesn't issue the licenses, the courthouse does, and that's much farther down on the chain--I think it'd be pointless to say that county clerks can't disobey laws that pertain to their jobs.)

Marriage is more than inheritance + love + care.

I sort-of agree... but legally, I don't think we have a definition of "marriage." We don't have a way of claiming "this relationship is eligible for marriage" and "that one is not" (except for the current gender/age/consanguinity standards). The only time I've ever seen a marriage challenged from the outside is in the case of immigration (although I know I could be missing something).

Sidetrack: so what *is* a marriage? What's required for it, and what shouldn't be allowed in one?

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I don't know precisely what it is. No one really does. That's why the law usually requires 2 witnesses. You don't have to convince your parents or some representative of the state, or even a bunch of people. Just 2 people to stand and watch. It is an act of faith on the part of the state that your civil marriage is a spiritual one, and it is an abuse of that faith to enter into civil marriage without the spiritual backing.

I don't know what it is, but I know what it isn't. True Spiritual Marriage is not something that any mortal man or woman has any say over. It is not something you create just to make it easier to pass on your worldy posessions.

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No, two witnesses are required because it's a serious contract, and serious contracts generally require witnesses. In this case, one reason for the witnesses is to avoid fraud - such as, say, a man giving a fake name to get a woman into the sack, as used to be not terribly uncommon.

There is no "spiritual" requirement for civil marriage; any such requirement would be blatantly unconstitutional.

Keep your religion at home folks, or in your church. It doesn't belong in our courthouse.

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Like I said, Just 2 people to stand and watch.

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"True spiritual marriage." What does that mean?

Historically speaking, marriage has been about cementing diplomatic relationships, ensuring continuity and certainty of succession, and generally the passing of property.

Ideas of love and romance have been generally peripheral and have come and gone, and as recently as the last couple of hundred years, in America, marriage was seen as a business/economic partnership with some affection involved.

There is no spiritual backing to a civil marriage - that's why it's called a civil marriage. It's a convenient way for the state to keep track of unions so that they can settle disputes as to property and/or benefits. That's why you register at City Hall. That's why you need 2 witnesse - it's a legal requirement. The state doesn't assume spirtuality. How can it if the parties aren't spiritual to begin with?

Both secular and religious marriages have the same purpose - it is a commitment before a higher authority: secular or otherwise. In the days when the Church was the State, and religion not just a choice but a culture, it was the same thing. Now, it's somewhat different, because not everyone shares the same set of religious beliefs or even religion to begin with. It's a practical distinction to recognize both a secular and a multicultural society.

The underlying reasons behind marriage have always been legal. Everything else, really, is just gravy. It makes it feel ood, but it's not really necessary.

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elf

>>It is an act of faith on the part of the state that your civil marriage is a spiritual one, and it is an abuse of that faith to enter into civil marriage without the spiritual backing.>>

Interesting theory. Which faith would that be?

There is no required spiritual component to marriage, not even an implied one. If there were, some types of atheists wouldn't be allowed to marry.

It would be an abuse of a religion to convince a pastor or priest to officiate at a wedding where the participants don't believe in that church's definition of marriage--but a that's got nothing to do with the legal contract involved.
Also, "caring & inheritance" has been a valid reason for marriage for thousands of years. In fact, "caring" is pretty optional; marriages have been done for the sole purpose of securing an inheritance (with full agreement by both parties; I'm not talking about scams) for a very long time.

>>I don't know what it is, but I know what it isn't.<<

Ah, something like porn then? "I can't define it, but I know it when I see it." This will not stand up in court; we're soon going to need either an actual definition of the requirements to enter a "marriage," or an open-door, anything-two-people-want-to-say-is-marriage policy.

The problem with defining it is that any definition will nullify plenty of straight, ordinary marriages.

>>True Spiritual Marriage is not something that any mortal man or woman has any say over<<

Then it would be pointless to have laws about it. Are you advocating an end to all laws pertaining to marriage, and moving it into the same legal void as "baptism?"--a ritual done by a religious institution in accordance with their beliefs, which has no legal status.

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Even in the case of immigration, all that is required is that one prove that the suspect couple is living together as a couple.

Motives don't enter into it. How could they? Would you want to give our government the power to decide whether your motives were good enough or appropriate enough?

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Yes, it's an abuse of marriage laws.
It's also not at all uncommon, and is considered legally acceptable and socially ... well, not totally beyond the pale ... so long as the parties involved are of opposite genders.

Why should the right to abuse marriage laws be reserved to opposing-sex couples?

That's blatant discrimination.

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shannachie.livejournal.com

Oh dear. You know, his German isn't much to write home about either. He has never lost his very local Austrian accent. Slightly rural.
Such a shame. One would think the electricity lobby that financed this entire election thing would have made sure he got a real good language teacher. Maybe he has the excuse that he was drunk? I always lose bits of my English grammar all over the place when I am under the affluence of incohol. Buy me a drink at the next con and watch me drop my articles...
And I am so glad I did not know about the potential danger or I might have been really worried about the two simply wonderful married (to one another) gentlemen who celebrated my birthday with me yesterday. So glad they never held anything more dangerous than my harp.

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figmo.livejournal.com

Thank you!!!

We have snarky things to say about his English, but it sounds much better when coming from non-native speakers of the language.

Ahnold has bigger fish to fry, though. To quote another non-native English speaker, he's got "a lot of 'splainin' to do" as to why California was given less money than last year by the Federal government even though he and the President are both Republicans.

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teddywolf.livejournal.com

What annoys me is that IIRC (and my brain might just be full o holes on this, so I could easily be wrong) Der Gropenfuhrer had said during campaigning that he was pro-gay civil rights.

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You can be pro-civil rights without being pro-civil disobedience.

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teddywolf.livejournal.com

Well, this is true. At the same time, chief executives are the ones who direct their chief enforcement officers on whom to go after and what to go after. This is why, for example, the IRS is much more likely to audit a poor person now than a rich person; or why certain Blue Laws still on the books aren't ever enforced anymore; or why back in the first half of the 20th Century it was very hard to convict somebody of being part of a lynching if you were in the South.

Besides, if Der Gropenfuhrer wants the laws changed so maybe he could run for President of the US - and let's face it, he's one a very tiny handful of foreigners who could possibly benefit from such a change - you have to wonder why he is against a peaceful attempt to change the laws of his state that would benefit easily half a million people if not more.

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you have to wonder why he is against a peaceful attempt to change the laws of his state that would benefit easily half a million people if not more

I've not seen a single reference from him that suggests he is against same-sex marriages. Everything that I've seen has been that he is upset that Mayor Newsom would knowingly violate an unambiguous law that was overwhelmingly approved by the electorate of California. It's very dangerous ground to assume that people who want to see the same-sex marriage licenses stopped are against same-sex marriage. I would be one of the counterpoints to that view; wanting to see the law breaking stop and yet still supporting the removal of gender from marriage licenses. In my point of view, we have Gavin Newsom knowing exactly what the law says and yet he has, by choice, decided that he's not going to abide by that law. In my mind it's identical to him knowing the posted speed limit and choosing to speed anyway; then saying it's unjust to have such a ludicrous speed limit. Or even knowing that filing income taxes is a legal requirement and just decided to not file them. Oaths of office almost always contain a "protect and defend" clause to the laws of their respective regions and this type of action is diametrically opposed to that oath. This makes for bad ju-ju.

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Ah, but they almost always include an overriding obligation to defend and protect the constitutions of the state and the nation. Which is, arguably, exactly what the mayor of San Francisco is doing.

Knowingly enforcing an unconstitutional law? Now that would be a violation of his oath of office.

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No law is unconstitutional until a court in position to say so rules that it is. Until such a ruling occurs, the law is the law, no matter how much prognostication goes into attemping to divine what a court might say in the future.

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In which case, the appropriate thing to do would be to lobby for the swift overturning of the (almost certainly going to be ruled) unconstitutional state law, no?

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But the "they're not ready" argument is a good one. Do I think that California is emotionally ready allow Equal Marriage? Yes.

But if you were in a stereotypical southern state (or, oddly enough, Alaska), it would likely be counterproductive to do so.

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Do you really believe that?

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