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February 18, 2004

Comments

I completely agree with your sentiment, but might I gently suggest that use of "shut their pie holes" goes a bit incongrously when discussing "excessive rhetoric"?

On another question, has the AFA or anyone actually suggested this? "Go ahead, AFA, make those nice lesbian grandmothers who just wanted to solemnize their love for each other into martyrs. Get great video of them holding hands as the police slap the cuffs on them."

I thought they were on about arresting the elected officials, not the people taking out the offered licenses. Did I miss that?

Gary Faber wrote:

I completely agree with your sentiment, but might I gently suggest that use of "shut their pie holes" goes a bit incongrously when discussing "excessive rhetoric"?

Actually “excessive rhetoric devoid of both logical reasoning or an understanding of the facts” would seem to be a pretty accurate description of the entire post.

Comparing people who disagree with you to the Ku Klux Klan? Please, that’s as silly as the often-ridiculed “Nazi” smear.

I thought they were on about arresting the elected officials, not the people taking out the offered licenses. Did I miss that?

Nope you read it correctly even if Michael N did not. The officials who are knowingly accepting fraudulent “marriage certificates” may be committing a felony under California law punishable by up to three years of prison per offense. There was no mention in any of the AFA letters of anyone calling for the prosecution of the couples in question since it appears to be the mayor who obtained the fraudulent licenses and may be guilty of multiple felonies.

Your post has a similar subject to, and much better title than mine; I really should leave this place in your guys' capable hands for the sake of fairness, balance, and not annoying our conservative posters too much.

The AFA is not the KKK. But they're not adding much to their legal credibility, either. I am no expert on California penal code, but I would guess that intent to defraud is probably an essential element of the crime AFA is talking about. Even if I'm wrong about that, telling the governor whom to arrest and how many hundreds of years they should be locked up for suggests the AFA is not actually so concerned about executive abuse of power.

But I don't think we need to worry about our boy Gavin. Can you imagine the political reaction if Schwarzanegger had him arrested
on flimsy charges? And he'd better hope he can get the trial moved far, far away from San Francisco. (If Newsom's in contempt of court and violating a court order and it's local authorities who make the call, it's a totally different story.)

"...may be guilty of multiple felonies."

From what I've read, and what expert professors of Constitutional Law have written, these seems extremely unlikely. The worst that's likely to happen is that on March 29th, the judge will issue a writ to show cause why the licences shouldn't not be issued. And then that would likely be appealed, and at the end, if ultimately upheld, the city would have to stop issuing licences. If they failed to comply, they would be held in contempt of court, and punished by the judge.

The whole "felony" thing seems to be the product of over-heated rhetoric from those panting for such an outcome.

I might be wrong, of course, and Eugene Volokh might be wrong. The former is more likely than the latter.

For the record, I think the AFA are kooks. Not the KKK, which indulged in hundreds, possibly a few thousand, of murders, bombings, and the like. But kooks.

Gary Farber wrote:

From what I've read, and what expert professors of Constitutional Law have written, these seems extremely unlikely. The worst that's likely to happen is that on March 29th, the judge will issue a writ to show cause why the licences shouldn't not be issued. And then that would likely be appealed, and at the end, if ultimately upheld, the city would have to stop issuing licences. If they failed to comply, they would be held in contempt of court, and punished by the judge.

The whole "felony" thing seems to be the product of over-heated rhetoric from those panting for such an outcome.

That could be the case if the only charge is of violating the injunction. However the actual complaint (layman’s use of the term) by the AFA seems to be that the act of procuring the fraudulent licenses themselves is a crime.

Mayor Gavin not only acted in violation of the civil law, he apparently violated the criminal law as well. California Penal Code section 115 prohibits the knowing procurement of any false or forged instrument to be filed or recorded in any public office, making such an act a felony punishable by up to three (3) years in prison. Since Mayor Newsom has procured approximately 96 such false certificates, he may face up to 288 years in prison.

In which case that seems to be a separate matter from what you are referring to and a possible felony in its own right, if they are reading the law correctly(1). I have not seen that specific issue addressed by Volokh on his site, although Jacob Leavy does seem to address the other issue you are referring to. Does anyone know how similar cases have been dealt with in the past?

Also I am assuming that the licenses are put out by the State of California as opposed to the State of San Francisco. In which case, how does a mere city get to decide whether it will follow the statutory guidelines for who may be issued a State license without running afoul of what would to me at least seem to be black latter law?

You may not care much for the AFA or like myself have never heard of them until just recently, but I do not think their concerns about the problems of letting city officials arbitrarily decide when they do and do not want to follow the rules is an unreasonable one.

TW

(1) I have no doubt they have their own ideological blinders on, but so it seems to be the case for pretty much everyone who has commented on this issue on this forum as the concern seems to be whether we redefine civil marriage to include two members of the same sex. My own concerns is pretty much that the proponents of this silliness have demonstrated in MA and SF that they are willing to twist and throw out the rule of law whenever it suits their agenda. If they like the decision of the MA courts, then they demand the legislature follow it. If they object to the law in CA, go ahead and defy it. I ally myself with the opponents largely because they at least seem to want to follow the Constitution and the structure of federalism it establishes.

Oh, Thorley, enuf of the long (super long) rhetorical wind. I'm curious. Do you believe gay men and women have the right to marry? Forget framing this as a constitutional matter, or a legal matter, or whatever. How about an unvarnished opinion?

I was perhaps a bit intemperate in my language, but you'll note, Gary, that the AFA letters specifically say that the mayor "may face up to 288 years in prison", which is pretty intemperate language as well.

Let me make a second stab at my overall point here, since it hasn't come across as clearly as I meant for it to. Your objections to post as written have merit, but I would like to clarify and revise.

Calling for the arrest and removal from office of all public officials involved in this matter is so far out of line that it crosses into ridiculousness. It wouldn't make any sense to arrest the officials involved on felony charges and then just let the applicants off free as a bird -- after all, they were the ones who applied for the license, no? (Then again, the AFA appeals aren't exactly models of lucidity, either.)

We're also talking about a politically-active, highly-committed, well-connected community that has extensive experience with both civil disobedience and street theater.

If the AFA starts this... they won't like the way it ends up, and some of us will be looking at them and shaking our heads, saying "We told you not to go there." Their actions will wind up backfiring against them in nasty ways, and will do significant damage to both their own cause and the political landscape. Their political capital will be gone, and their political credibility will be approximately zilch anywhere more than fifty miles from AFA headquarters in Tupelo, MS.

If an actual court order gets produced, then Newsom will stop issuing licenses quickly. However, it's plain that the courts don't want to rule against him, and are dragging their feet in order to not have to do so.

Resisting gay marriage is a political loser, in the long run. There are too many parts of our lives that imply its acceptability, and too much precedent that argues against ultimately restraining it. This is a fight that can't be won, and as the old Klingon proverb goes, "Only a fool fights in a burning house."

"That could be the case if the only charge is of violating the injunction. However the actual complaint (layman’s use of the term) by the AFA seems to be that the act of procuring the fraudulent licenses themselves is a crime."

Yes, that's nice. And when the AFA is elected or appointed to office as the District Attorney of San Francisco, their opinion and complaint will actually be relevant. Until then, it has the same legal bearing and effect as me pronouncing that I'm "charging" the AFA with criminal noodlehood, and they potentially face thirty-gazillion years as noodles. I imagine they are scrambling to get lawyers even as you read this.

"...I would like to clarify and revise...."

That's always acceptable, and often wise.

"Calling for the arrest and removal from office of all public officials involved in this matter is so far out of line that it crosses into ridiculousness."

Pretty much; it's typical Donald Wildmon, so this is a redundant observation.

"It wouldn't make any sense to arrest the officials involved on felony charges and then just let the applicants off free as a bird -- after all, they were the ones who applied for the license, no?"

Well, yes, it would, if you grant their logic. They claim that the Mayor and his agents are engaged in a felony by issuing those licenses. Their claim has no legal effect, as I've pointed out to Thorley Winston. However, they are, at least, pointing to a specific law. It's perfectly possible for a prosecuting authority with legal jurisdiction to file such charges, and let the legal system deal with said charges. Highly unlikely, in practice, but perfectly possible.

However, there is no such possibility of such charges being filed against those taking out such licences, since no one has yet even hallucinated a statute that said folk can be thought to be said to be violating.

Really, this isn't very complicated. Do you have a legal cite for the statute you think might be put forth that the licensees might be charged with violating? If not, why do you assert that it doesn't make "any sense" to "let them off" under the claim the AFA is making?

"Do you believe gay men and women have the right to marry?"

I'm not clear anyone has a "right" to marry. Although I just briefly discussed the 9th Amendment in my blog today, I'm not clear there's precedent for a "right to marry" by anyone. Not being a lawyer, and not being paid to do so, I'm not inclined to do a major search on case law on this, but I have the rather vague idea that some people in some circumstances have been legally prevented from being married in the past. I may be misremembering, however, or they might be on quite specfic grounds, in any case.

Obviously, there is a "equal protection" case, so long as anyone does indeed have a "right" to marry, but is there such a basic "right"? (As opposed to something I, myself, heartily approve of; as I've said many times, I think people should have be able to write any sort of marriage contract they want between themselves and other people, so long as it does not violate contract or other law.)

I'm not aware of the Constitution addressing marriage.

Do you have a bit of the Constitution in mind that a "right" to marry is grounded in, Harley? Or later precedent?

"I was perhaps a bit intemperate in my language, but you'll note, Gary, that the AFA letters specifically say that the mayor 'may face up to 288 years in prison', which is pretty intemperate language as well."

Incidentally, Michael, what would your mother say to "but he was intemperate first!"?

I'm also less than clear how your response speaks to my point that your comment was incongruous with criticism of "excessive rhetoric."

Are you suggesting that the AFA used "excessive rhetoric," and that therefore it is appropriate to criticize them for use of "excessive rhetoric," by using excessive, "intemperate," rhetoric? Because I don't see another reading of your comments, and yet I'm not following your logic. It's possible I'm just being slow.

I'll consolidate several responses to Gary here to keep the threads of response together.


Do you have a legal cite for the statute you think might be put forth that the licensees might be charged with violating? If not, why do you assert that it doesn't make "any sense" to "let them off" under the claim the AFA is making?

I'm not a lawyer, by any means, nor am I conversant with the California penal code, but I'm sure that there are penalties for fraud, which would seem to be the next step along the path that the AFA is recommending. I don't think their argument makes any sense from a legal point of view, but it isn't the law they're playing to here -- it's their political base. I'm leaving the legalities alone (although I think it would be legally flawed), but I am saying that what seems to me to be their plan of attack is a political mistake.


Obviously, there is a "equal protection" case, so long as anyone does indeed have a "right" to marry, but is there such a basic "right"?

One cite, among others, would be Loving v. Virginia, 388 U.S. 1 (1967), where the Supreme Court said:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.


Incidentally, Michael, what would your mother say to "but he was intemperate first!"?

If she has anything to say on this issue, I'll be very surprised to hear it, as she's been dead for going on six years now. :)

Back when she was alive, though, she was a firm believer in making allowances for less-than-ideal behavior in the face of provocation. She'd look at both sides and say things like, "Maybe you were a little out of line, but he was waaaay out of line. Don't let him take advantage of you." She was scrappy. :)

I will concede your basic point, though, that I went a little over-the-top, and I shouldn't have. Mea culpa.

Gary Faber wrote:

Yes, that's nice. And when the AFA is elected or appointed to office as the District Attorney of San Francisco, their opinion and complaint will actually be relevant.

Actually, they directed one of their three letters to the city attorney (the others going to the governor and attorney general) who would have the authority to act on a citizen complaint.

BTW: do you have any sources (Volokh doesn’t address the issue, at least not on his blog that I have seen) to support your earlier contention that it would be unlikely that the officials who procured false marriage licenses would not be prosecutable under California Penal Code Section 115?

Well, I looked up the relevant statute, and it doesn't seem to have any bearing on this case -- It's concerned with forgeries. The text reads:

Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony.

Note the second clause -- it says that to fall under this statute, the document must be legitimate on its face. In the case of the marriage licenses, either they're not legitimate, in which case the second clause fails, or they are, in which case they can't be considered "false" and the first clause fails.

Ken B,

Thanks for looking up the statute, I used the text you provided to find and read the entire text of the statute and at this point*, I agree with your interpretation. I don’t think that getting a marriage license to get a marriage which is not legally recognized as valid in the State of California would be covered under this statute.

TW

* If it comes out that there is case law or information to the contrary, I reserve the right to revise my opinion.

"Gary Faber wrote...."

I do believe it was someone else.

On the other hand, anyone who solemnizes a gay marriage in California may run afoul of section 359 -- see Volokh on this subject.

I look forward to the A.F.A.'s reaction when they realize that Judge James L. Warren is:
1. gay (according to an Oakland Tribune article).
2. Earl Warren's grandson.

Actually, my guess is that on March 29 we'll see the gay grandson of the most famous "judicial activist" in American history order the straight, married mayor of San Francisco to stop issuing these licenses because he is beyond his authority in interpreting the California constitution. Which would be an illustration, on several levels, of what is right about this country.

Katherine,

can you give a layman's explanation for why Newsom won't win this.

Gary Faber wrote...." I do believe it was someone else.

Which text was it that you believe was misattributed to you?

I can't speak for "Gary Faber," myself. I rather doubt anyone reading here can.

Not a big deal, Tholey. I didn't mention it the first time; it's only upon the repetitions. No hu-hu.

Sorry, long day, too much contract drafting. ;)

I posted another Angel item yesterday, by the way. :-)

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