Although this blog is generally concerned with technology, law and policy, it is, in fact, most concerned about our civil liberties. I emphasize technology and the digital age in my postings because that is what I best know. However, I feel remiss in not addressing one of the most important civil rights battles of our time, that for gay rights. So, while there are many important things happening with regard to copyright and etc. right now, I'm going to spend some time addressing the gay marriage issue.

Prof. Richard Thompson Ford of Stanford Law School has written a critique of the city of San Francisco's issuance of marriage licenses in Slate (Civic Disobedience: San Francisco chooses the wrong way to flout the state).

Ford's first arguments are non sequiturs, pointing out the limited circumstances that normally permit local jurisdictions to defy state or federal law and how they do not apply. However, as Ford notes these are not the arguments San Francisco is making. The reference to federal law is entirely out of place, as San Francisco is not making a federal law claim and no one is arguing that San Francisco is violating federal law at all.

The argument San Francisco is making is that the law prohibiting same-sex marriage is unconstitutional as a matter of California law. Ford treats this argument condescendingly,

Proving that it is indeed "The City That Knows How," San Francisco thus found a different argument to justify licensing same-sex marriages....[The constitional argument is] a clever argument but not clever enough.

Since when has choosing not to enforce unconstititutional law merely "clever"? Call me crazy, but non-frivolous arguments based on constitutional rights should hardly be dealt with contemptuously.

Ford then goes on to the core of his argument:

Even if the courts ultimately were to agree with the city on the merits, the issue is for the courts to decide, not local officials. It's simple black-letter law that otherwise valid legislation is presumed to be constitutional until and unless judicially invalidated. Until a court decides otherwise, then, local officials are bound to uphold state law.

Ford claims it is "simple black-letter law" that unconstitutional laws should be upheld until a court decides otherwise, but it does not seem to me all that clear. For example, two separate courts have so far failed to put a stop to the practice. If the issue were as simple and clear cut as Prof. Ford would have us believe, one would expect an injunction forthwith. Courts normally don't allow litigants to continue to flout well-established black letter law once a case has been brought before them.

There is also a claim that even if the courts uphold San Francisco's interpretation of the law, what San Francisco is doing is nevertheless illegal. This seems rather unlikely to me. This would have to mean that the marriage licenses already issued are invalid regardless of the outcome. And don't think that this will not be tested.

Assume that Ford is correct and San Francisco doesn't have the authority to issue same-sex marriage licenses until a court decides the issue. Subsequent to a ruling that the anti-gay marriage statute is unconstitutional, one of the 3,000+ already married same-sex couples will attempt a divorce. One of the parties will then claim that divorce is unncessary as the marriage was invalid in the first place. If Ford is correct, then the court will have to accept that argument. I think this unlikely.

This is why Ford's argument that SF lacks authority is also false:

it's that they [SF authorities] exceeded their authority (just as I would if I were to print up "marriage licenses" and start issuing them out of my back door). In purporting to license same-sex marriages, the city is less scofflaw than charlatan.

However, is it? Ironically, it is in divorce that most of the benefits of pre-court-decision marriage will accrue, such as property acquired during the marriage. When a divorce among the SF newlyweds occurs and it comes time for property division, will a court declare that property was only accrued after the court decision? This seems unlikely, in which case the city was not acting as a charlatan, as would be the case if Ford were to issue the licenses.

Why is it unlikely? Because after a court decision that the anti-gay marriage law is unconstitional, there is nothing than can be used in court to show that gay marriage licenses were not validly issued:

The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted....

A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it.

16 Am Jur 2d, Sec 177 late 2d, Sec 256

The city has the authority to issue marriage licenses, period. If the anti-gay marriage statute is unconstitional, it is unconstitional now. Which means that SF does have the authority to issue the licenses. The city is either issuing invalid license now (if the statute is constitional), or we will know at some point in the future, that the marriage licenses are, in fact, valid as of the time they were issued.

Yes, "the city's argument—that local officials can act in contravention of state law based on their own untested interpretation of the constitution—is dangerous." Local officials should tread with extreme caution in this area. However, the parade of horribles Ford musters is singularly unconvincing: local officials permitting prayer in schools or declaring affirmative action unconstitional. In both these cases, there is well-settled law on the issue, which is not the case with same-sex marriage. If there were existing precedent opposing the issuing of such licenses, such as a court order, then I would be entirely opposed to violating the court order. There is a difference between thumbing one's nose at well-established law and not enforcing a recently passed and arguably unconstitutional statute.

In any case, there are other differences with regard to the horribles Ford cites. For example, in the case of teacher-led prayer, one would be infringing the rights of those not religious or of a different religion. In the case of affirmative action, one would be denying benefits to a proper recipient. Where is the harm in the SF decision to issue licenses? Are other marriage licenses somehow less valid? Are any benefits being denied anyone? Will any benefits other than a paper certificate be granted until the courts have made a decision? Where no harm can accrue in issuing licenses and there would be benefit in so doing (see divorce issue above), prudence would seem to favor issuing licenses in case of significant doubt.

Which is precisely why Ford's final argument lacks persuasive power. Ford argues that the city could refuse to issue any licenses, rather than participate in discrimination. However, as he points out, this would be mostly a symbolic act and a mere inconvenience to heterosexuals desiring to marry. What he doesn't point out is that a failure to issue licenses due to an unconstitional law would be a serious harm to gays desiring to marry. The balance of equities (as the courts have so far recognized) seems to weigh heavily in favor of issuing licenses to gays until the issues can be resolved with finality.