I don’t know about you, but my initial reaction the decision by Mayor Gavin Newsom of San Francisco to allow same-sex couples to marry, in the face of a recent voter-passed statute forbidding it, was to put it in the “dumb politicians’ tricks” category. The comparison to Judge Moore’s antics with the Ten Commandments didn’t occur to me immediately, but it seemed valid when Glenn Reynolds and others raised it.
But Eugene Volokh argues — convincingly, at least to my eyes — that a public official asked to enforce a law that he deems unconstitutional is entitled, and perhaps morally required, to refuse, until a court tells him otherwise, and that the Mayor’s belief that the California law violates the California constitution may be wrong but isn’t unreasonable on its face. On this interpretation, Newsom isn’t engaging in “civil disobedience;” he is merely obeying the state constitution he is sworn to uphold in the face of a law that (in his view) conflicts with that constitution.
In this case, I’m grateful to Eugene for freeing me from the incorrect belief that an official taking my side of an issue was acting like a jackass in his manner of doing so. That does not, however, change my annoyance at Eugene’s persistent and apparently incorrigible habit of being right where I was wrong.