Arguments were made on Tuesday at the California Supreme Court over the mayor of San Francisco issuing just over 4,000 marriage licenses to same-sex couples. First, what this argument was not: This was not the argument over whether the state law that says marriage should be between only a man and a woman is unconstitutional. Today there are all of these programs and debates on whether it should be constitutional to define marriage in that way, as well as discussions about how the ban on interracial marriages in the 60s is not comparable to this situation. Well all of that may be taken up by the court in the next year or so, but it’s not the point today.
Today the question was an easier one. Did the mayor have the authority to issue the licenses in direct violation of state law because he deemed the law to be unconstitutional? And so are the licenses invalid? The answer to that one seems easy to me. Of course, he didn’t have that authority. The state law is crystal clear: “Marriage is a personal relation arising out of a civil contract between a man and a woman.” The city should have first challenged the law’s constitutionality in the courts, not first ignore the law and let it be challenged later. As the justices pointed out in their questions, using that logic, a police chief who thinks assault weapon laws or certain gun control laws violate the Second Amendment could just ignore them.
On the other side, one justice said, Don’t cities make these kind of preliminary constitutional determinations all the time, with respect to the issuance of, say, parade licenses? Yes, except that has nothing to with determinations that are direct violations of state law. The debate over the law’s constitutionality is still to come. But until then, I like Mayor Gavin Newsom. Mayor Gavin Newsom is a friend of mine. But on today’s issue, he’s on the wrong end of the law.
Dan Abrams is the host of 'The Abrams Report.' The show airs weeknights, 6 p.m. ET on MSNBC.