Extended Phenotype

Gavin Newsom’s move in San Francisco to issue same-sex marriage licenses is turning out to be quite interesting – it’s not every day that we get to watch a debate over the constitutionality of a statute driven by the calculated civil disobedience of a public official.  

Since I posted my previous comments on the subject, at least two readers have picked up on my statement that Newsom is technically violating his oath of office.  I still believe this is the case, and I think it raises interesting questions.  Fried Man (although I don’t necessarily agree with his politics) makes a good point – if we applaud Newsom’s civil disobedience, how can we condemn Alabama judge Roy Moore’s refusal to obey the courts and remove his Ten Commandments statue?   (Population:One and Kalblog also discuss the parallel between the two situations as well).

This is a fascinating point, because situations like this force me to think about the consistency of my beliefs.  If I believe that our elected officials are responsible for “upholding the law,” but then go on to approve of Gavin Newsom and disapprove of Roy Moore – because I believe in Newsom’s stance but not Moore’s – then I’m inconsistent.  Fried Man would (rightly) call this hypocrisy. 

The problem here is not the civil disobedience.  CD is an effective form of public protest, and when private individuals engage in it, they do so with the knowledge that they may be subject to consequences for breaking specific laws (e.g., trespassing, etc).  That’s an individual decision, and as such, it doesn’t have implications for our constitutional system.  

Refusal by elected officials to uphold laws, however they feel about those laws, does have implications for constitutional government and the rule of law.  Normally, the path to challenging Prop 22 would involve a private individual or group filing suit against the city for not issuing a marriage license.  Then, perhaps the ACLU or other groups would get involved by filing an amicus brief, the case would claim that Prop 22 is non-applicable due to conflict with Article I, Section 7 of the CA Constitution, and so on.  It’s a time-honored way of creating “test cases” that generate opportunities for judicial review.  In a way, Newsom is trying to “jump the gun” and generate such a challenge, but he’s the wrong guy to initiate the challenge.  

The nut of the issue is:  if we allow elected officials to get away with not upholding the law in situations where we sympathize, how can we condemn Bush, Rumsfeld, and others for their transgressions?  How, for example, can we condemn the Administration’s holding of prisoners without due process at Guantanamo?  How can we condemn the Patriot Act and repeated attempts by Ashcroft to abridge our constitutional freedoms?  We can’t have it both ways.  

And I’m not willing to give up my ability to condemn these things, just to support Newsom’s actions in SFO.  I believe in equal rights and protection for all – including marriage and its civil privileges – but there are other ways to win this battle.  Demographically, those who oppose the FMA or state constitutional amendments are slightly in the minority now, but this trend is changing because of population growth in urban areas and the opinions of younger voters.  As several folks have pointed out, one strategy is to wait this out:  it’s virtually a certainty that support for the FMA will wane over time, given the vast difference in polling numbers between young and older voters.   An immediate challenge is also possible:  if Californians want to overturn Prop 22 now, then perhaps Newsom should revoke the licenses, and the 1700+ folks who received them should file suit as co-plaintiffs challenging the constitutionality of the proposition.  Unless Rehnquist has a lot of friends on the bench in California, there’s a good chance the law could be struck down through judicial review.

By yesterday afternoon, 665 same-sex marriages occurred in San Francisco’s City Hall, with still more licenses issued.  This morning, 300+ people were apparently lined up to secure marriage licenses.   Of course, it’s unclear whether these marriages will “stick” because of Proposition 22, passed by a wide margin (63%) in 2000.  Prop 22 changes California law to read:  “Only marriage between a man and a woman is valid or recognized in California.”  

As Kevin Drum pointed out this morning, the law is crystal clear on this point, and at the current time, all of the marriage licenses being issued by Gavin Newsom in SFO are technically in violation of Prop 22.  Clearly, this event is a move on the part of Newsom and the SFO community to challenge the constitutionality of Prop 22.  

A constitutional challenge shouldn’t be too difficult, given the following from California’s Constitution:

ARTICLE 1 Section 7:
(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

Of course, there’s nothing that says the State Supreme Court will exercise judicial review and declare Prop 22 void.  And this is a pretty dangerous move for Newsom, since although his motives are laudable, he’s technically violating his oath of office to uphold the law.  Civil disobedience is great, but our elected officials practicing CD is a stickier issue.  The counter-attack, when it comes, may focus considerable wrath on Newsom, costing him his job.  

One also wonders how this situation will affect the chances of a Federal amendment.  As I’ve previously written, demographics would seem to suggest that a Federal amendment wouldn’t find enough support to pass, but I have to wonder if enough publicity might stir the hornet’s nest and cause folks who oppose same-sex marriage but don’t feel strongly to mobilize.  

I strongly oppose constitutional or statutory bans on same-sex marriages.  Equal protection means that the same privileges and responsibilities have to apply to everyone.  But I think we need to be careful with strategy, careful with tactics, in fighting to preserve equal protection.  Constitutions are hard to change, but not impossible.  And while the repeal of Prohibition demonstrates that the damage is reversible, it’s even harder.  While I support the folks in SFO that are making a dramatic statement about equal protections and personal freedoms, I’m really hoping this doesn’t backfire.  

In front of the
Miami Chamber of Commerce, Rummy defended the Administration’s policy on
Guantanamo Bay prisoners.  We’re holding roughly 650 prisoners at
our naval base in Cuba, without access to lawyers, without trials, essentially
without civil rights.  Some are (or have been) U.S. citizens, but most are
not.  Some have been held for two years.  All are classified as
“enemy combatants” rather than criminals or POWs.  Naturally,
a host of folks – including human rights groups, the ACLU, and many
citizens – have spoken out against the denial of due process and civil
rights.  But nobody’s listening.  Keeping the prisoners for
intelligence (i.e., interrogation) and eventual use in highly publicized
“tribunals” apparently outweighs our cherished adherence to the
rule of law.  

Here’s a few
choice Rumsfeld words on the subject:

“I
recognize that in our society the idea of detaining people without lawyers
seems unusual, detaining people without trials seems unusual.  After all,
our country stands for freedom and it stands for the protection of
rights.”

But I’m
sorry, Rummy…this isn’t a debate.

Detaining people
without lawyers isn’t “unusual.”

Detaining people
without lawyers is a direct
violation of the Fifth Amendment to the U.S.
Constitution, which says quite plainly:

No
person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a grand jury, except in cases arising
in the land or naval forces, or in the militia, when in actual service in time
of war or public danger; nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.

The final clause,
“nor be deprived of life, liberty or property, without due process of
law” is the kicker.  The amendment extends this right to “everyone”
– see the first two words.  It doesn’t say “except enemy
combatants” or “except in time of war”, it says
everyone gets due process.  It doesn’t even say
“citizens.”  It says everyone.

Naturally, this has
to be part of the reason for holding the detainees in Cuba, at Guantanamo Bay.
 The appellate court in Washington, D.C. has ruled that the Guantanamo
prison camp is part of the “sovereign territory of Cuba” and thus
is outside the jurisdiction of U.S. laws.  I’m sure this will
continue to hold up, given the Rehnquist Court, but the ACLU is assisting with
an amicus brief in Rasul v. Bush, which hasn’t been decided yet but was
accepted for the Court’s 2003 term.    

Notice, too, that
the Fifth Amendment doesn’t say “on American soil.”  No
geographic limitations are given.  The Administration will likely win on
the territorial “technicality.”  They’re saying, in
effect, “yes, we’re violating the
Constitution, but not on American soil.”  And
they’ll get away with it.  Rehnquist has a 5-4 majority on the
Court, and has an incredibly poor record of upholding the civil rights of
criminals who are U.S. citizens.  The folks at Guantanamo have zero chance
of bucking this trend.

And interestingly, if we set aside
the U.S. Constitution, there’s always the Geneva Convention, which is supposed to govern how
we treat enemy combatants and prisoners of war. And Rummy’s got that covered. Paul Butler,
principal deputy assistant secretary of defense for special operations and
low intensity conflict, has said
that the detainees are not entitled to Geneva Convention
protection because al-Qaeda and the Taliban never signed the Convention, that they
fight without a clear chain of command, and because they’re not civilians. Butler
then goes on to talk about the “message” we’d be sending by giving detainees
“full treatment” under the Convention. And a terrible message it would be, too:
American honors civil rights and its treaty commitments, even if we’re fighting you. Hard to imagine how
that message could be detrimental to our national security, and hard to imagine how
it could be more beneficial to our perception worldwide.

But that’s
not the point.  

Where
we’re holding them does not change the fact that our Executive Branch
decided to take actions in direct violation of the Fifth Amendment. 

The Constitution,
including the Bill of Rights, is the supreme law of the land.  The
President, Vice President, and his cabinet all took an oath upon assuming
office to uphold it.

But even
that isn’t really the point.  

The point is our
credibility, and how to stem the tide of peoples and states in the world that
distrust and even hate the United States.  Because we’ll be
respected and secure when other people feel respected and secure.

If the
Administration wants credibility at home and abroad,
why not set a higher standard?  

If we want other
nations to adopt our political system,
why not practice it ourselves? 

If we want people
to respect us, why not stop breaking
our own laws?

If we want people
to trust us, why not stop acting
like those whom we claim we oppose?  

Interestingly, what I hoped would happen – Clark dropping out and joining the push to elect Kerry, has come to pass.  Clark appeared in Madison, WI with Kerry today, and offered both his endorsement and actual help campaigning.  This is great news, because it means that we’re starting the next phase of the campaign.  Apart from Dean and Edwards, Kerry’s efforts can now be focused where they should be – on building a coalition to beat Bush.  

I predict that Dean is going to hang in there, because there will undoubtedly be a contender all the way to the Boston convention.  What I hope is that Edwards sits down with Kerry and decides to also throw in his support, possibly with a tacit understanding that he’d be a good VP on the ticket.  Dean will then continue to marginalize himself by claiming that he won’t support Kerry, and by displaying more of his famous anger management abilities.  And the rest of us can get on with the serious business of ensuring electoral votes.  

By my count, if we start with the electoral map from 2000, we need 10 more electoral votes to win, due to changes in population.  I think Arizona is a possible state which might finally lean democratic, there’s a possibility (hard as it is to believe) in Florida, but a lot of our effort needs to be focused on Ohio, in my opinion.  A centrist candidate might be able to gain Ohio, especially if they’re good on the economy and credible in national security.  Getting Ohio, and no defections back to Bush from the 2000 “democratic” states, would win this election for Kerry, and allow us to send G.W. back where he belongs – writing his memoirs in Crawford.