I don’t know. Certainly the happy couples are not, by getting licenses and then marrying, breaking the law. They know that the licenses, and the marriages, will almost certainly be invalidated; they are in some measure doing it as a political act. On the other hand, they aren’t disobeying anything or anybody (with appropriate jurisdiction).
Digression: If the happy couple goes home and files federal and state tax returns as a married couple—today, before the judges rule again—can they be held guilty of fraud if the licenses are revoked before April 15? Presumably, it’s a felony to file as married when you are not legally married; I haven’t checked that, but it stands to reason. Are they legally married? Yes? No? Temporarily? I wouldn’t do it; I savor the vote too much, but I expect somebody will, and I’d be curious to hear how it plays out.
Anyway, it’s a strange thing. The demonstration is made powerful by the couples actually marrying; they do so knowing that they are defying state and federal law (as currently defined by precedent). They aren’t breaking that law (can people break the law in that sense? Without engaging in fraud, which is a different law?). Mayor Newsom has allowed them to defy the law without breaking it; from his direction, he clearly isn’t breaking any laws either. If the courts are allowed to decide, and their decisions stand, one way or the other, the defiance will have been made public without any lawbreaking at all. Federalism is weird.
It’s also not clear, at the moment, how effective the whole thing is as political theater. I know, it’s not only political theater, but political theater it certainly is. I believe it will fire up the base; I’m willing at the moment to donate plenty of time and money to fighting some federal constitutional amendment that would prevent those sweet pictures. Would those pictures convince, say, Bill Clinton, who favored civil union but not ‘marriage’, that he should fight such an amendment, or at least vote against it? We’ll see. I suspect this will act as a nice balance to the ‘judicial activism’ in Massachusetts to remind people that what’s at stake is, on the one hand, the happiness of a few hundred thousand people, and on the other, well, nothing.
Redintegro Iraq,
-Vardibidian.
There was a question on NPR last night about the tax thing; if I’m remember right (which I may not be), it goes something like this: According to the federal government (DOMA), these folks aren’t legally married; however, the IRS apparently usually goes by state law in determining marriage status. (On the other hand, adds Jed, by state law these folks aren’t legally married; there’s just some question as to whether that state law is in accordance with the state constitution. So I suspect that the IRS would be rather unhappy about a same-sex couple filing as married regardless of whether the licenses are revoked by 4/15.)
…I think Mayor Newsom probably is breaking state law, at least in a contributory sort of way, as (I suspect) are all the clerks and such who issued marriage licenses to couples who cannot be legally married under California law. Again, it may turn out that the California constitution invalidates that law, but it is the current law. But I could be wrong.
As for convincing people, hard to say. Some conservatives who have spoken out against the current situation have done so pretty strongly; but yeah, I guess the real question is how the vast middle ground of the American people is reacting. Are they saying “Hey, that’s cool, and maybe it’s not so bad after all”? Or are they saying “I was fine with the way things were going, but this is going too far—they’re flaunting it”? I haven’t seen any polls; would be very curious about same.
� “…by state law these folks aren’t legally married…”
well, I’m not sure about that. They received a license from the state, via the city; that license may have been issued in error, and may be revoked, but unless and until it is, I think they are married. That is, if the license is revoked (and I’m pretty sure it will be), they will never have been legally married, but if the license is upheld, they will have been legally married since the ceremony. In the meantime, they are both single and married (and cats, to boot), aren’t they?
� “I think Mayor Newsom probably is breaking state law, at least in a contributory sort of way, as (I suspect) are all the clerks and such…”
Again, I’m not sure. What law would he be breaking? It seems to me that the mayor’s job includes being a first-line interpreter of the law for the purpose of enforcement; after he does that first-line approximation, it’s up to the courts to tell him is if he’s correct. In this case, he sees the laws as being contradictory, so he made a judgment. There’s nothing illegal as such in making a reckless judgment in such a case, I think, so long as he follows the order of the court, once a court gives an order.
Now, he may well be in contempt of the state assembly; the legislature could well throw him in jail for that. But he isn’t yet, not until they tell him he is.
The thing is, I don’t quite see how the state can make it illegal to marry someone of the same sex. They can refuse to recognize such marriages, and make it illegal (that is, fraudulent) to claim benefits of such an unrecognized marriages. But that doesn’t make the marriage a criminal act.
I mean, the state could, I suppose, make filling out a state license application with two members of the same sex some sort of misdemeanor, or even a felony. But I don’t think they have, and I can’t imagine they will.
That’s the thing that I was marveling at: I don’t think any crimes are being committed in that action. Of course, I haven’t read the act that was passed, so very likely I’m wrong about the whole thing.
Redintegro Iraq,
-Vardibidian.