Civic Disobedience

San Francisco chooses the wrong way to flout the state.

Illegal activity?

Not to be outdone by the Commonwealth of Massachusetts, the city and county of San Francisco began issuing marriage licenses to same sex couples just before Valentine’s Day. The move took by surprise those people who thought that marriage was a question of state, not local, law and who thought that San Francisco was part of the state of California. California has never recognized same-sex marriages and, in case anyone thought it was just an oversight, in the year 2000, the people of this state passed the California Defense of Marriage Act, a law rare in its economy of prose: “Only marriage between a man and a woman is valid or recognized in the State of California.”

So, how can San Francisco nevertheless license the marriage of same-sex couples? Is this another example of the “only in California” craziness that allowed us to recall our governor? Is there some quirk in the hierarchy of government out here on the Left Coast that allows the city to defy the state? Does love really conquer all, even countervailing state law? Or are San Francisco’s local officials all smoking a little more medicinal marijuana than the prescription calls for?

Actually, the city’s position isn’t as outrageous as it might first seem. There are some circumstances in which cities can defy state or federal law, but unfortunately for the city, none of them justify San Francisco’s decision to license same-sex marriage.

Under California’s constitution, cities enjoy a great deal of autonomy from state government over what are called “local affairs”—basically anything that only or primarily concerns the locality. When a local action or ordinance concerns a local affair it prevails, even if it’s in direct conflict with a state law. But marriage isn’t a local affair. It is, instead, a classic example of what government lawyers call a matter of statewide concern: A marriage performed anywhere in the state is valid statewide, so everyone in the state has a stake in the criteria for marriage. And if a local ordinance or action conflicts with a state law governing a matter of statewide concern, the state law prevails and the locality must yield.

Under the federal Constitution, cities can defy federal attempts to “commandeer” local officials for the purpose of implementing federal programs. For instance, a county sheriff in Montana balked when the feds tried to make him apply the Brady Act and enforce a waiting period and perform background checks for handgun purchases. The Supreme Court held that state and local officials could not be forced to implement that federal program. But “anti-commandeering” doctrine does not allow localities to opt out of federal law generally, it allows them only to refuse to actively enforce a federal scheme. The feds can still enforce federal law in the recalcitrant jurisdiction themselves—setting up a federal bureaucracy or sending in federal agents to administer the program. And the anti-commandeering doctrine applies to states against the federal government. Local governments are covered only because they are subdivisions of the states and enjoy the autonomy that the states enjoy by extension. The anti-commandeering doctrine lets localities resist the federal government, but it does not protect localities from the edicts of their own states.

Proving that it is indeed “The City That Knows How,” San Francisco thus found a different argument to justify licensing same-sex marriages. It didn’t claim that marriage is a local affair and it didn’t argue commandeering. And no, it did not declare independence from the state. Instead, the city pointed out that the California Constitution prohibits discrimination on the basis of sex and sexual orientation and argued that marrying male-female couples but refusing to marry otherwise eligible same-sex couples is discrimination on the basis of sex and sexual orientation. It concluded that the city is therefore obliged by the state’s constitution to put an end to the discrimination by licensing same-sex marriages.

It’s a clever argument but not clever enough. 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.

There’s a good reason that courts and not elected officials are in charge of invalidating legislation under constitutional norms. Not only are many local officials legally untrained and thus practically incompetent to make judgments on matters of constitutional law, but all local officials are subject to political pressures and thus likely to reach politically expedient conclusions about their constitutional duties. It’s no accident that the constitutional epiphany that allowed gay marriage took place in a city with a large and politically powerful gay community: This particular Damascus road was paved with votes.

And that’s why 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. My sympathies lie with the city—this time. But I worry about the types of constitutional revelations we might expect in other cities with different political constituencies. Employing San Francisco’s argument, a local school board official who personally believes that the constitutional right to religious freedom entitles teachers to lead their classes in prayer could order school principals to allow the practice. A local official who personally believes affirmative action is unconstitutional could refuse to implement a state law requiring it.

And there’s a more fundamental problem for the city’s position: Ultimately it’s the state and not the city that has the power to marry—the city performs marriages as an agent of the state. In the legal metaphysics of local power, the city simply doesn’t have any authority in this area that the state doesn’t give it. A city can’t license marriages that the state does not recognize. So the real problem for the city is not so much that local officials violated the law when they ordered the marriages (in the way that I violate the law when I double park in front of the dry cleaners); it’s that they 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.

So, if it cannot flout the state ban, is the city required by law to discriminate against same-sex couples? Maybe not. If the city believes that licensing male-female but not same-sex marriage is unconstitutional discrimination, it could borrow a page from the anti-commandeering book and refuse to participate in the state’s heterosexist marriage scheme; it could stop issuing marriage licenses altogether. This may sound spiteful (“If gay couples can’t get married, no one can!”), but a moratorium on marriage could be a responsible temporary measure that would avoid the discrimination, while waiting for the courts to settle the issue.

It would also jibe with an influential political theory of unconstitutional discrimination. The constitutional law scholar John Hart Ely argued that the U.S. Constitution should prohibit discrimination against minority groups because such discrimination is especially likely to be the result of a failure of the political process. Discriminatory laws that target well-defined minority groups do not affect the majority of the voting public, who could be said to pass laws under which they do not have to live. By refusing to issue any marriage licenses, the city could make the majority see what it’s like not to have marriage available at all.

Sure, the move largely would be symbolic. It would merely inconvenience heterosexual couples, who could go to a neighboring jurisdiction and have their marriages licensed. And it’s really people outside San Francisco who need to be convinced; most San Francisicans—straight and gay—support gay marriage already. But we’re dealing in symbolism here in any event—legally, the city’s gay marriages will last about as long as Dennis Rodman’s to Carmen Electra and almost everyone involved knows it. Even unequivocal supporters of the city’s actions defend it with phrases like “civil disobedience.” But purporting to license same-sex marriage is an odd form of civil disobedience: It has the look and feel of a lunch counter sit-in, but it replaces the elements of sacrifice and risk with what looks like political patronage. Shutting down the marriage shop altogether might send a more powerful message because it would involve a sacrifice for San Franciscans and (as a result) risk for local politicians.

Of course for many of the committed gay couples whom for the first time, if only for a few heady days, can claim to be “legally” married, none of this hand-wringing over doctrine and politics matters. To them, the only politics that matter are the politics of recognition—the city’s actions send out the message that there is at least one place where the body politic takes gay couples and their relationships seriously. That message is worth something. But whether it’s worth the litigation, political backlash, and stirring up of homophobia sure to follow is a matter of opinion, not of law.