February 17, 2004

Gay Marriage Sophistry II

Evan Kirchhoff's toed the line and the bell's rung. None of this Queensbury rules sissy stuff, this is going 'old style' so hold on to your hats folks, this may take awhile.

[For the humor impaired, I'm not mad, and I suspect neither is Kirchoff]

First, let's lay out the terrain. There are two types of sovereign governing structures in the US governmental system, the federal government and the state governments. Notice what's not there. There are no counties, municipalities, special districts of any sort, parishes, or boroughs. None of these other entities are privileged as sovereign. They are created, and may be destroyed by the sovereign government that created them. Most of these are created by the states but the District of Columbia is created by the Federal Government.

Now such wholesale rearrangement is not very comfortable so it doesn't happen very often but that does not affect the Federal Government's ability to give Maryland back it's land and move the capital to North Dakota if it can persuade ND to give up some of its territory for the purpose (no more that 10 sq miles, by law (Art I Sec 8)). Similarly, if Gov. Schwarzenegger could persuade enough of the State Legislature, he could take over San Francisco and run it directly until it was reorganized to his liking.

County and city governments are subordinate creatures of the governments of the state they exist in. So, strictly speaking, the State of California lets the people play with a local budget and a local government as a convenience. They do so in the knowledge that most of the time things are run better locally. That most of the time is generally considered 6 '9s' reliable (99.9999%) but there are lots of cases where a city goes broke or the local government goes completely bonkers and the state steps in, sometimes with troops, other times with accountants.

Why is this relevant? It goes to the heart of the suit challenging the actions:

If the plaintiffs in the pending cases are allowed to sue, city attorneys predict that the centerpiece of the argument will focus on an obscure section of the state constitution that bars administrative agencies from declaring a statute unconstitutional.

Chief Deputy City Attorney Therese Stewart said that they would argue that the provision doesn't apply to local governments or Newsom's decision to defy the state laws governing marriage.

Essentially, the government of San Francisco is making the argument that it could not simply be dissolved by act of the legislature like any other administrative creation. It, in essence, is arguing that it has some form of sovereignty. Now isn't that a nice power grab!

Now that we've laid out the ring, the first question is whether this is serious or a joke. Kerchoff seems to be of two minds on the question.

Is it a symbol of no real significance, a joke of a license that only has symbolic effect?

Well, I don't know, but I hadn't realized that when the mayor turns up at a ribbon-cutting or declares National Pug Day or issues a giant golden "key to the city" that (shh, don't tell anyone) does not actually open any doors in the city, the Republic teeters on a greasy incline to hell.

Or is this something serious that could have legal effect, being enforced in San Francisco and elsewhere?

Now, I admit that I'm laboring under the handicap of reading local papers that aren't calling me an idiot, but I note today that my interpretation of Prop 22 seems to be shared by at least one member of the state legislature:

So, I guess in the metaphor of the first quote, the legislation would mandate changing all the locks so that the key to the city actually would open up all the doors. But looking further at the legislation, it becomes even clearer that we're in rarified insanity land.

The legislation (according to the linked article) is introduced by a state legislator to the state legislature but gives people federal rights. Do I need to say how stupid this is? It also gives people rights to have their marriages recognized in other states which should make the legislatures of the 49 other states sit up and notice as they, I'm sure, didn't realize that you could do that sort of thing.

It would be kind to limit legislative commentary to three words, moon bat city.

So, what do we have here, a city official deciding the constitutionality of settled state law, raising executive supremacy in a particularly stupid way. Proposition 22 is no mere judicial order and Newsom is no Andrew Jackson. Standing against a referendum like this is entirely undemocratic governance.

Now, the major power of legislatures is the power of the purse. If you're not allowed to do something like spend money on gay marriage licenses, it doesn't matter whether you shift funds around and pull it out of contingency funds, you're not allowed to spend money on it. The spending of that first dollar is a defiance of the law. Recently, the DoD was barred from spending any money on the Total Information Awareness initiative. If Evan Kirchoff's loose accounting rules would apply, DoD could simply cut down on magazine subscriptions and fund it anyway.

Fortunately, if people did that sort of thing, they would end up in jail. In fact, the large bulk of the Iran/Contra scandal was a question of whether or not that is exactly what the Reagan administration did. Now Reagan actually had serious lawyers on his staff and he skirted the prohibitions sufficiently so that, at least on appeal, nobody ended up in the big house but this particular case isn't even close. It's government personnel using government resources in a government office to provide a service that they are barred from doing by California law.

There seems to be a gay marriage fever epidemic breaking out across the land. The infected lose all sense of proportion and are prepared to rip apart all precedent, all protections, all legality just to get what they want enshrined in law. But what will be left of the law after they're done?

Posted by TMLutas at February 17, 2004 08:23 PM