The Pursuit of Lawlessness
by Matt Kinnaman
March 1, 2004

    San Francisco Mayor Gavin Newsom has decided he is above the rule of law, and no judge is willing to challenge him. Since February 12, when Mayor Newsom directed his city's leadership to disobey California law, and grant marriage licenses to same-sex couples, nearly 2,500 same-sex weddings have been performed in San Francisco.

   Astoundingly, even though every one of these weddings is against California law, California Superior Court Judge James Warren declined to issue a temporary restraining order to stop the weddings. The Alliance Defense Fund had asked the judge to uphold the law, but the court refused. Six days of law breaking have ensued, with more to come. It is uncertain whether a court will enforce the rule of law this week, next month, or at all.

   Same-sex marriage is illegal in California. The people of California established this in 2000, when they approved Proposition 22, by a vote of 61.4% to 38.6%. The proposition won in 52 of 58 counties statewide. Proposition 22 reads "Only marriage between a man and a woman is valid or recognized in California."

   But Mayor Newsom regards his voice as more important than that of California's majority, who exercised their democratic will by lawful means. Ironically, San Francisco's mayor justified his defiance of the law by appealing to the state's equal protection clause, although he is unwilling to regard equally those who's protection under the law—those who actually obey it—has been stripped away.

   A further irony: When President Bush signed The Partial-Birth Abortion Ban Act of 2003 on November 6 of last year, a judge almost instantly invalidated the new law. In that instance, when a law was passed—not defied—a district court judge in Nebraska imposed a temporary injunction on the law within one hour of the bill-signing ceremony, banning the protections of the law in 13 states in which the injunction had jurisdiction. The next day a federal judge in New York judge went even further. In that ruling, US District Court Judge Richard Casey found in favor of the National Abortion Federation, effectively blocking the new pro-life law nationwide, while simultaneously blocking the will of the President, the US Congress, and the majority of Americans, who favor a partial-birth abortion ban.

   It is important to remember: The Senate passed the partial birth abortion ban by 64-34. The House vote was 281-142. These are nearly 2-1 majorities, even larger than the large California majority that voted to protect traditional marriage through Proposition 22.

   In both cases, involving issues that comprise the very fabric of our lives and our moral meaning, the people passed laws, overwhelmingly, through the constitutional measures provided to them. In both cases, their will has been overridden, seemingly without recourse, once by a scofflaw mayor, and twice by imperial courts.

   In the first case, two federal courts immediately invalidated a law that was duly passed by the will of the people. Then, in the second case, when a court was asked simply to stop an outburst of disobedience against the rule of law, it refused. The people of a free nation must wonder what will become of their freedom in the midst of such incomprehensible absurdity and lawlessness.

   On March 11 the Massachusetts legislature will reconvene a constitutional convention to decide whether its citizens deserve a chance to vote on the future of marriage. In San Francisco, chaos reigns. In Massachusetts, the legislature has not yet allowed the people to speak. Neither Massachusetts nor the nation can afford another act of arrogance, from any branch of government.