Lots of criticism of S.F. Mayor Gavin Newsom today, from the usual suspects (the American Family Association want to send him to prison for “up to 300 years”–though at the rate of 3 years per marriage poor Gavin is up to 7500 years in the slammer by now), and at least one not-so-usual suspect:
“I was sorry to see the San Francisco thing go forward,” said Frank, a gay congressman from Massachusetts who shared his concerns with San Francisco Mayor Gavin Newsom as the city prepared to begin marrying gays and lesbians last week.
In an interview with The Associated Press, Frank also expressed concern that the image of lawlessness and civil disobedience in San Francisco would pressure some in Congress to support a federal constitutional amendment banning gay unions.
Frank said he and other gay marriage advocates had hoped that the Massachusetts Supreme Judicial Court’s ruling that same-sex couples have the right to marry would serve as a national model for orderly, legal protection of gay marriage.
I think Frank has a very specific fear in mind. Governor Romney has started making noises about finding a way to defy the Supreme Judicial Court’s order to issue marriage licenses to gay couples in…I don’t know how many days, now.
My guess is that there are too many parallels, in Frank’s eyes, between what Newsom is doing and what Romney may do.
Now, I can make several distinctions here:
1. Newsom’s decision harms no one, except psychologically. Romney’s does.
2. Newsom is defending a disadvantaged minorities’ rights; Romney is attacking them.
3. Newsom (I think) will not defy a direct court order. Romney seems to be considering just that.
4. Newsom has a serious constitutional argument to make. Romney has none that I can think of–he talks about “legal limbo” but that’s based on a constitutional amendment that will still need to clear the legislature once more, and then go before the voters–there’s a very good chance it will never pass at all. I don’t think you can defy orders from the Supreme Judicial Court based on hypothetical conflicts in laws that don’t exist yet.
5. Newsom is not an ordinary citizen defying an unjust law, but neither is he the chief executive of a state. He has no ability to create a constitutional crisis. If he defies a direct court order, he will be held in contempt. He might very well go to jail, or at least pay a large fine. If Romney defies a direct court order….nobody is sure what will happen. I don’t know if the Supreme Judicial Court can hold the governor in contempt, and I doubt they’re going to test it. I also don’t know what state officials–including the police–do when faced with direct and contradictory orders from the governor and the Supreme Judicial Court, or what the consequences would be. And just as conservatives have correctly pointed out that there’s more danger in a mayor doing this than an ordinary citizen–there’s more danger in a governor doing this than a mayor, and more danger still in a president doing it*.
But obviously this list of reasons comes partly from my belief that Newsom is right, and Romney would be wrong. I don’t think that’s avoidable, or that there’s anything wrong with it, but it means that list reasons will probably not convince people who oppose gay marriage. (Volokh might have a better shot). So Frank definitely has a point.
And yet….when I look at those pictures, I can’t hold it against him. How often does a politician take a risk like this, to defend the rights of an unpopular minority & to make a genuine difference for the better in a lot of people’s lives?
Yeah, it’s San Francisco, but I live in Massachusetts. Of the four people here who have the most influence on this issue, two are doing everything in their power to fight gay marriage (Finneran and Romney) and the other two will not risk anything to support it (Kerry and Travaglini.) No disrespect to Representative Malia, Senator Barrios, Representative Kelly, former Senate President Birimingham, or the rest of the people doing their best, but–no one here has taken a risk like Newsom.
This is an emotional issue. If we are going to defeat the marriage amendment, it won’t be on the principles of federalism alone. More than we need internally consistent arguments, we need some leadership. We won’t get it from Kerry, and I doubt we’ll get it from Congress. Someone–and it really had to be a straight and married someone–needed to step forward. Now someone has. He’s been in office 12 days. He’s 35 years old, and ambitious, but there is a very high risk that he’s just shot his future in state or national politics all to hell. People are issuing public demands for his arrest, and God knows what kinds of hate mail and death threats he’s getting in private. In light of all that–to some extent I can understand the criticisms of Newsom, but I won’t add to them.
(I bet some of you will, though).
*or, say, claiming sweeping powers to indefinitely detain U.S. citizens, and “render” suspects to countries that practice torture, by executive order without approval from Congress. I’m just sayin’.
Oh dear, almost a duplicate post. This is why I really ought not to post when there are two other liberal bloggers doing a good job filling in.
Sorry, my brain was fried from Con Law and this is how I relax. (I’m sick like that.)
You did fine, and you hit several points that I missed — my legal credentials are nonexistent, and I was coming from a practical and political point of view. As long as you have the time to post, keep it up!
I still think this is being underestimated. As more stuff like SF happens, and as the backlash gains momentum, I think this is going to explode.
Yes, bad stuff is gonna happen, in Mass and in DC. The FMA will be brought up. Politicians will cringe and cower.
And there may a hundred thousand people marching every weekend this summer. It is the big coming out party, and everyone has got their invitation.
Katherine, you and Barney Frank aren’t the only ones fretting about this angle. A few days ago I made a blog post expressing almost identical concerns, and then reassuring myself in pretty much the same manner. Massachusetts minds think alike, I suppose!
There’s never a good time for a fight like this, and we in Mass. didn’t really choose the timing, so I’m not in the camp of people trying to squelch it for strategic reasons. But I’m still more freaked out than you are. Friends of mine are predicting mass rioting, killings and destruction in Boston over the summer. The real nightmare scenario, which I admit does not have better than even odds but still robs me of some sleep, is that the Democratic National Convention in August turns into a violent 1968-level disaster, or worse, and the Democrats end up associated with images of a burning city in the final stretch. (Which would be a slam dunk for Bush, since he can spin both parties in the fight as the enemy: gays on one side, terrorists on the other!) The decision to have the convention in Boston may be regarded in hindsight as a bigger mistake than anything having to do with the candidates.
“The decision to have the convention in Boston may be regarded in hindsight as a bigger mistake than anything having to do with the candidates….”
My own suspicion is that the Republicans will come to have cause to deeply regret having chosen NYC for their convention. But we’ll see.