Must California City Officials Follow Statutes They Believe To Be Unconstitutional?
More on the San Francisco Gay Marriage Controversy

My last column focused on San Francisco's decision to disregard California statutes in order to recognize same-sex marriages. Since then, much has happened.

The California Supreme Court has -- for the moment, anyway -- enjoined San Francisco officials from issuing any more same-sex marriage licenses. In addition, it has asked for briefing on the narrow question whether a Mayor has the power to disregard and decline to follow state marriage statutes when he believes them to be unconstitutional.

In today's column, I will analyze San Francisco Mayor Gavin Newsom's evolving legal position on this question, and the responses to it. I will contend that, ultimately, Mayor Newsom's position is incorrect.

However, I will also argue that several of the responses that have been offered are incorrect, or at least incomplete, as well. They lead to the right conclusion: that Newsom must abide by the state marriage states pending an appellate judicial decision. But they give the wrong route for getting there.

To understand the governing law, some background is necessary.

Article III, section 3.5 of the California Constitution says that an "administrative agency has no power to refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional." As I argued in my previous column, it seems clear that San Francisco counts, for these purposes, as an "administrative agency."

Thus, Section 3.5 and related state constitutional principles appear to compel city officials (like Newsom) who are implementing a statewide legal scheme -- like the marriage statutes -- to follow those statutes, despite the fact that they may be unconstitutional, until a court of appeals has rendered them invalid.

No appellate court has effectively ruled on California's opposite-sex-only marriage statutes. Thus, Section 3.5 suggests San Francisco must enforce the marriage laws as they currently exist -- until an appellate court does rule on them.

One of Mayor Newsom's more forceful claims, however, is that complying with the California constitution here would compel him to violate the U.S. Constitution -- which trumps the state constitution, according to the U.S. Constitution's Supremacy Clause.

In addition to the Supremacy Clause, the Mayor also points to the U.S Constitution's Oath Clause. The Oath Clause says that "all executive officers [including mayors] . . . of the several states . . . shall be bound by oath or affirmation to support this Constitution." Mayor Newsom points out that he himself took such an oath, and must abide by it.

Mayor Newsom furthers notes that he holds the good faith belief that supporting the U.S. Constitution's Equal Protection and Due Process Clauses requires him to support equal marriage rights for same-sex couples. And, conversely, he argues that he also holds the good faith belief that refusing equal marriage rights to same-sex couples would violate the federal Constitution, and therefore violate the oath he took.

In sum, Mayor Newsom argues that the U.S. Constitution's Supremacy Clause and its Oath Clause override California constitution Section 3.5 -- which asks him to keep enforcing marriage laws he believes are discriminatory, until an appellate court has a chance to rule on them.

Some opponents have suggested that Mayor Newsom has no business making constitutional judgments in the first place; that is for the courts, and only courts, to do. But that argument defies both the oath he took, and history.

Mayor Newsom is right that in some circumstances, executive officers are entitled to make independent constitutional judgments. Or, put another way, it is not the case that only courts can undertake constitutional review - it is not true that other branches of government always need to wait for, and defer to, the judiciary's determinations of which statutes are constitutional and which are not.

As the California Attorney General's brief points out, Marbury v. Madison does say that "it is emphatically the province and duty of the judicial department to say what the law is." But "emphatically" is not "exclusively," and history suggests that sometimes the Executive -- and not just the Judiciary -- has also pronounced on the constitutionality of laws.

Indeed, many a President has historically, and I think properly, asserted a power to decline to enforce a Congressional statute that he believes is unconstitutional -- a power deriving from both the oath he takes to support the U.S. Constitution, and his duty to see that the law, especially the Constitution, is "faithfully executed."

For example, in the 1798 Alien and Sedition Acts, Congress sought to outlaw criticism of incumbents -- an obvious First Amendment violation. The federal courts, however, held otherwise.

Thomas Jefferson pardoned all those who had been convicted under the old Act, despite these court decisions. To Jefferson, the question was not simply what courts had done or might do, but what his own independent constitutional conscience dictated.

In 1832, President Andrew Jackson he vetoed a bill on constitutional grounds -- again, using independent judgment despite a prior court ruling. There, the Supreme Court had already upheld a similar bill against constitutional challenge. But Jackson wrote:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.

Even the Supreme Court itself agrees to some extent: As Walter Dellinger observed when he served in the Office of Legal Counsel during the Clinton administration, the Court has "endorsed" the practice of a President's declining to enforce statutory requirements he views as unconstitutional.

Opponents also claim that Newsom's position is inherently unworkable: Allowing a Mayor to follow his own constitutional conscience would lead to chaos.

But that's simply not the case. As a general matter, allowing local officials to disregard state statutes they think are unconstitutional would hardly lead to anarchy -- for there are relatively few instances where an official in good faith can allege he believes a statute is unconstitutional. A state could, if it wanted, choose not to have a section 3.5 analogue in its state constitution.

Opponents' more specific predictions of how Mayoral exercise of constitutional conscience would lead to chaos are also overstated. For instance, they suggest that, according to
Newsom's logic, a pro-life Mayor could order prosecutors to criminally charge doctors who perform abortions, despite Planned Parenthood v. Casey's affirmation of the basic principles behind Roe v. Wade.

But that's not correct. Newsom's position allows Mayors to protect federal constitutional rights more broadly than courts have yet protected them, but not more narrowly.

Consistent with his position, Mayor Newsom's expansive interpretive of federal equal protection would allow him to authorize same-sex marriage. In so doing, he would be thwarting California statutes to be sure -- but not violating anyone's constitutional rights. There is no federal constitutional right of heterosexuals to enjoy the exclusive protection and benefit of the marriage laws, and no one -- given the state of American law -- could believe in good faith that there might be such a right.

If Mayor Newsom is right that sometimes there is room for independent executive judgments on constitutionality, and right that his position won't lead to chaos, then why -- in my view -- is he still wrong in the bottom-line position he has taken?

For one simple reason: California has the right to choose -- and has apparently chosen, in Section 3.5 -- to have a uniform position within the state executive branch concerning the constitutionality of state statutes. And that position, according to California's choice, is the Governor's position in defense of all statutes that haven't yet been struck down -- not the Mayor's.

When disagreements within an Executive Branch as to what is constitutional arise, they must be settled. In the federal system, the President has the last word -- and that word need not always agree with that of the courts. But all others within the Executive must agree with the President; an agency head (despite his or her oath) cannot contravene the President's view. (A regional EPA official or a regional federal prosecutor could not, relying on his oath, defy the President's directive to enforce a Congressional statute.) The alternative would be inefficient -- with regional agency representatives refusing to follow D.C.'s decrees.

If the federal system can opt, in this way, for a "unitary executive," certainly California can, too. And in Section 3.5 and the California cases that seem to recognize the Governor and the Attorney General as the State's chief law enforcement officers, California seems to have done just that in this setting.

Section 3.5 suggests that Mayors must fall in line with the Governor when it comes to law enforcement, just as, on the federal level, regional representatives, and agency heads, must fall in line with the President. Whether or not a Governor or an Attorney General could have a decent federal claim to be free of section 3.5's constraints (just as a President might have a right to disregard Congressional enactments), a lower level state executive official, like a Mayor, simply cannot make such a claim. (I think it would be an interesting case if a Governor or an elected Attorney General asserted a right to decline to enforce state statutes he thought unworthy of defending.)

Of course, none of this necessarily means the Mayor must fall in line if the Governor continues to enforce state statutes that are clearly unconstitutional under existing precedents. But that's not what Section 3.5 asks of Mayors. Instead, it asks them to wait for an appeals decision on the relevant issue before acting when reasonable people can disagree about what courts will do.

Thus, suppose the U.S. Supreme Court had already held, in a case from another state, that the federal Constitution's Equal Protection Clause requires that same-sex couples have equal access to marriage. Suppose further that Governor Schwarzenegger issued a directive telling local officials to continue to honor heterosexual but not homosexual marriages. That directive could be ignored.

Under such circumstances, the state could not defend its position, of attempting to compel mayors to comply, on the ground of promoting intra-executive stability and good order. It would be plain that instead, the state was simply trying to frustrate federal rights and nothing more. Such an obvious intent to disregard federal rights might be a direct violation of the federal Supremacy Clause.

But that issue isn't presented by the present case, for no one argues that federal constitutional precedents clearly prohibit discrimination against same-sex couples in marriage. Whether or not the principles of Lawrence v. Texas will ultimately be extended to cover marriage, the question under federal caselaw is, at a minimum, an open one right now. Thus, the federal Constitution provides Mayor Newsom little cover for flouting state statutes.