LAW FROM THE CENTER

Professor Eugene Volokh gives a reserved defense to Mayor Newsom's defiant order to issue marriage licenses to gay couples in violation of California law. The mayor's position

is that California's male-female-only marriage law -- which is only a statute, albeit one that was implemented by a voter initiative -- violates the California Constitution. If he's right, then refusing to marry same-sex couples (thus complying with the invalid state statute) would be violating the law, because it would be denying people the equal treatment that the constitution allows them; agreeing to marry same-sex couples (thus violating the invalid state statute) would be upholding the law, because it would be complying with the constitutional command.

I fully disagree. If the Mayor is truly justified in his interpretation of the Constitution, then the most law-abiding course of action would not be to issue gay licenses, but to STOP ISSUING MARRIAGE LICENSES altogether. You can't protest a method of issuing licenses by making your own one up. If you want to stop discriminating, then stop discriminating. Shut down the license office until the legislature makes a change you're happy with. But don't encourage lawlessness in the highest levels of government.