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That Strange Sound of Silence

I'm a bit astounded at the shocking silence of the Left at the moment, at least as it's embodied in the New York Times. When (justifiably former) Judge Moore decided to put a chunk of rock heavier than my first car in his courtroom with the text of the ten commandments, they were all up in arms about a state official acting solely on his own authority, in defiance of higher powers. But at least he had some (very tepid) federalism and separation of powers arguments on his side.

So where are these pious guardians of the rule of law now, when Mayor Newsom and Mabel Teng unilaterally issued marriage licenses, in violation of California law? Not even a peep out of the New York Times editorial page. Apparently one-man justice is just fine, provided you don't mind the result...

I should offer a bounty for the first person who can find me a left-wing editorial being consistent about this issue.


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» Silence from Letters of Marque
Over at Three Years of Hell, Anthony points out an apparent contradiction:When (justifiably former) Judge Moore decided to put a chunk of rock heavier than my first car in his courtroom with the text of the ten commandments, they were... [Read More]

» Silence from Letters of Marque
Over at Three Years of Hell, Anthony points out an apparent contradiction:When (justifiably former) Judge Moore decided to put a chunk of rock heavier than my first car in his courtroom with the text of the ten commandments, they were... [Read More]

» Silence from Letters of Marque
Over at Three Years of Hell, Anthony points out an apparent contradiction:When (justifiably former) Judge Moore decided to put a chunk of rock heavier than my first car in his courtroom with the text of the ten commandments, they were... [Read More]

» Rule of BadLaw from ambivalent imbroglio
There's a fascinating discussion going on over at Letters of Marque in response to Anthony's complaint: The "pious guardians of the rule of law" (Anthony targets the NY Times as an example) complained about former Judge Roy Moore's fight to keep the Te... [Read More]


"Apparently one-man justice is just fine, provided you don't mind the result..." And you don't mind the man. Getting rid of the Taliban, which should have been a good thing for (along with all other groups) world peace activists and feminists, wasn't good when coming from the "one man" of W. (I know it wasn't one man, but that's the characterizations you get :) I agreed with removing Moore, once the appeals court order had been handed down and he continued to act in violation of that stated law. Similarly, I believe Mayor Newsom's action is wrong for a government official. The "conservative" candidate in the mayoral election, indeed...
On the comparison of Newsom to Moore... That line was on the O'Reilly show a couple of nights ago. If you're going to rip off terrible arguments from shrill hacks, you should at least... well, I don't know how to... rescue you if you're willing to... do that. Let me rephrase: Do not rip off terrible arguments from shrill hacks. On the substance... Sorry, no. Mr. Moore disobeyed an injunction and final disposition on the merits. Mayor Newsom's actions went against the text of the statute only. Any law student worth her salt can tell you there's a very critical element present in the former but missing the latter---namely, full adjudication of the law, as applied to the present facts, with opportunities for both sides to present their case. You go against the rule after that point, it's called contempt. You go against the rule before, however, and it's called a test case. In terms of the rule of law, the difference in treatment can be identical (you can get punished for either), but in principle the difference is as wide as the world. Look, there's no mystery here (except to those like Mr. O'Reilly): They're going to challenge the constitutionality of the California rule defining marriage as heterosexual only, and this is the way to present a litigable claim to the courts. You give them a certificate, no one thinks it actually entails legal rights, and when the state authorities try to take it away, you raise constitutional claims as a defense, and all of a sudden you've gotten standing, ripeness, injury in fact, etc. Come on---this is an easy one. And to anyone who thinks that feminists and peace activists were opposed to removing the Taliban, you gotta get off college campuses once in a while.
TtP: First, it would be very, very difficult for me to rip of O'Reilly. I don't have cable, and if I did I don't watch Fox News. But the argument is hardly limited to O'Reilly. Indeed, I got scooped by Instapundit this time, although I didn't read him before writing this piece. Think twice before you accuse. Secondly, perhaps you'd like to look at the record of the New York Times, the body to whom I'm referring. Would you care to put money on the idea that they refrained from criticizing Judge Moore until after a court handed down a decision? I didn't think that it was generally required, even of news outlets you don't consider to be 'shrill hacks,' that they wait for a court decision before they publish an opinion on a matter. Thirdly, perhaps you should be careful before slinging around words like 'any law student worth his salt?' The world is not a courtroom, and the world of politics, or indeed political theory, are not limited by civil procedure. A commentator, political theorist, or indeed, just Joe Q. Public can answer that it's a usurpation of power, without waiting for a (probably friendly) court to overrule his opinion. It certainly didn't stop people with Judge Moore. While I'm aware that they might be setting up a test case in California, that's a legal difference, not a difference in how the punditry of America reacts. Further, it was not necessary for an officer of the state to deliberately violate a law before all those elements were present in Massachusetts. The point, DAT, is that 'when the state tries to take it away,' what they're taking away is something that the state, acting through Newsom, has given. He's not acting in his private capacity.
Surely our concept of law is not so impoverished that we cannot distinguish between Roy Moore (he who know longer deserves the title of 'judge') and Mayor Newsom . . .. Cf. Williams v. Wallace, 240 F. Supp. 100, 108 (D.C. Ala. 1965)("the extent of a group's constitutional right [must be] commensurate with the enormity of the wrongs being protested and petitioned against."). It isn't always about process. Sometimes it's about results.
Tony, I'm not about to defend the NY Times, but I do think the distinction drawn by Tony the Pony is valid. I didn't start criticizing Roy Moore until after he began defying the injunction issued against him. What Mayor Newsom is doing is perhaps analogous to the Reagan Administration's repeated challenges to Roe v. Wade. None of those cases was actual defiance of a court order, but all defied the rule established by Roe.
Tung Yin: Do you see no difference, however, between violating a rule announced in a decree from the court, and from violating the plain language of a statute as a mayor? One of the things that made Moore's action particularly reprehensible was that he was a judge violating a court order. In this case, Newsome's an executive charged with failure to carry out a law that's pretty explicit. As David Codrea asks, would we be so sanguine about this is Newsom was handing out gun licenses in violation of state law?
As David Codrea asks, would we be so sanguine about this is Newsom was handing out gun licenses in violation of state law? Those in the pro-gun lobby would be. That's the way it goes in politics, right ? People get technical when it suits them !
But isn't that exactly the point? The danger to other people of handing out gun licenses improperly is fairly obvious. The danger to other people of the state endorsing a particular branch of Christianity (remember, we all don't follow the same 10 Commandments) is less physical, but still well-recognized. Who exactly is endangered by Mayor Newsom's actions? To put it another way: if the law in question were federal, not state, and the lawsuit filed in federal district court, who would have standing to sue? (Hint, if you haven't gotten that far in conlaw yet: people can't sue for 'generalized greviences' or to 'promote general enforcement of the law.') And what does this all tell us?
Tony's points are well made. I would add to TtP that while there is something to the idea of creating a justiciable claim (for standing, ripeness, etc.), the way to create such a claim would be to have people go to the courthouse, get denied a marriage license under the law as it stands, and then petition for redress in the courts. If I'm not mistaken, that is precisely what the petitioners in Goodridge did. But Mayor Newsome threw open the clerk's office, directly instructing them to violate the law, and created a spectacle of people lining up for days to participate in a very public violation of the law. It may be a technical distinction (suing for nonrecognition of a granted document, instead of suing for non-granting of the document), but it matters. The mayor's job was not to creatively interpret the law - he's sworn to uphold and enforce it. He was not acting as a private citizen here, but as a public official. Who's endangered? The majority of voters statewide who recently chose, democratically, to specifically define marriage as between a man and a woman. The democratic process and rule of law are hurt. And Bateleur, not everyone gets technical when it suits them. As has been pointed out, many conservatives agreed with the removal of Judge Moore.
Tony: Again, I think Mayor Newsom is doing something futile and questionable. However, I do think there is a difference between being an executive who acts counter to a statute, versus a litigant (especially one who is a judge) who defies a court order directed at him. The first person has a colorable separation of powers argument -- one that will almost certainly lose. The second person has no such argument.
I also think it is important to keep the larger context in mind: in Mayor Newsom, we have a city executive running counter to a state law which may or may not be unconstitutional per the state constitution, in a state without significant precedent for these types of actions (at least as far as I know). On the other hand, in Roy Moore we have a "judge" who is also the head of a branch of state government who is ignoring the direct lawful order (not to mention decades of precedenet) of a federal court, all in a state with a rather nasty history of state officials ignoring unquestionably lawful orders by federal courts. Does the distinction make a difference? Maybe, ultimately, not. But the decision by many people to criticize one while celebrating has some support, and is not, as you suggest, pure hypocrisy.
Simon: So you and Professor Yin get to fight it out--was Moore a mere 'litigant' (who thus has no colorable argument) or a 'head of a branch of a state government' (who thus had a federalism argument to match Newsom's separation of powers one)? And incidentally, while a mayor is an executive power in his own right, is a mayor (the head of an entity incorporated by a state legislature) actually a member of the executive in terms of a separation of powers argument? I honestly don't know this, but my instinct had always been that any separation of powers would involve Newsom and his City Council, but that mayors are not officers of the state executive? After all, the state of California could abolish the charter of the city of San Francisco, thus eliminating his position, couldn't it? In this sense, his argument would be more a federalism one than separation of powers, except that cities do not sit in a federal relationship to their states. (These are slightly unformed thoughts--information is welcome here.)
I've only skimmed the Comments, so I'm not sure if this was mentioned... What about the fact that both the outrage over the Ten Commandments debacle and this new challenge to marriage are cnosistent in that they both protest the involvement of religion with civil affairs? The reason so many have a problem with homosexual marriage is because of ingrained religious morals. The reason Moore wanted the Ten Commandments in his courthouse was because of ingrained religious morals. Neither have a place in deciding what is the best law. At most, they can be admirable guidelines, but challenging Moore and condoning Newsom seem to be in line on a conceptual basis.
The reason so many have a problem with homosexual marriage is because of ingrained religious morals. This is true - many people dislike homosexual marriage because of religious morals - but not apposite to your point for two reasons. One, the law of California is that marriage is between a man and a woman. It is a democratically enacted law, passed very recently by a clear majority of the people. It's not some abstract principle out there, which might be appropriate for the mayor to contest. It's an actual law. So the mayor is not protesting religious involvement in civil affairs, he's going against a law. And outrage should be directed at Newsome's actions because the law he's breaking isn't necessarily an example of "religion in public life", it's the enacted law. Unless he knows the motives behind every person who voted to pass the law? Which I don't think would be appropriate to make a judgment on anyway. Roemer struck down a law based purely on "animus", but it's not at all clear this law was based on animus, or religious beliefs. But it doesn't matter. Two, even if the rule is based on religious morals, I don't think it's obvious that religion should have no place in the best law. Laws against murder no doubt were passed in part based on a religious belief that murder is wrong. Would such laws be invalid because religious considerations played a role in their passage? The point is, ultimately, in both cases (Moore and Newsome) laws - democratically enacted or judicially ruled - were being violated. The outcomes are irrelevant to evaluating whether the actions are right or wrong. Because when it comes to the law, either the process has meaning, or it doesn't. In which case, how are we to be governed?
Tony (I hope it's o.k. I call you that) -- I don't think that Tung Yin and my arguments are necessarily in conflict, although, of course, he may think otherwise. Why? Because the federalism/head of branch of state government angle makes Moore's argument weaker, not stronger, and surely not akin to Mayor Newsom's. Whatever the provence of the states and federalism, it is well-settled that state officials cannot interpose themselves between the Bill of Rights and the citizens of their states. Especially in the face of a direct federal court order, and most especially on something concerning the rights of a "distinct and insular" minority. Mayor Newsom, on the other hand, is engaged in a much more straight-forward act of civil disobedience (again, assuming the law is constitutional under CA's state constitution), or, perhaps, even peaceable insurrection against CA state government. We may not want to encourage that, or hold it up as a model for other mayors to follow, but I still don't see it as in any way equal to what Roy Moore attempted. Probably in the end any act of civil disobedience or insurrection has to be judged after the fact in light of the principle it sought to vindicate. (Compare the American Revolution, Abraham Lincoln, and Rosa Parks with the Whiskey Rebellion, 1880s KKK, and Timothy McVeigh.) Framed that way: Roy Moore sought to vindicate endorsement of a particular branch of Christianity by the government; Mayor Newsom sought to vindicate the right of two adults to the full equal protection under the laws. Similar in form -- perhaps. Similar in substance -- not in a million years.
Simon: Civil disobedience is generally an act of an individual: you could see Judge Moore as performing an act of civil disobedience as well. There's no real difference between refusing to execute a law if you're responsible for executing the laws, or refusing to follow a court order if you're responsible for making them. Newsom's not acting in his individual capacity. Sure, you can differentiate between 'good' and 'bad' civil disobedience, but I didn't complain about the NYT saying Moore was wrong in his actions. I objected to the fact that they worried about him acting against his responsibilities in an official capacity, when they don't care in Newsom's case. Last I knew, mayors aren't allowed to contradict the laws of state legislators either.
Tony- First, I'm not sure you're right when you say that there is "no real difference between refusing to execute a law if you're responsible for executing the laws, or refusing to follow a court order if you're responsible for making them." There are all sorts of situations where there is actual or arguable authority for an executive's failure to enforce (execute) the law, see, e.g., prosecutorial discretion; cf. debates about impoundment. I'm not sure one could find similar support for the proposition that a litigant -- even if one litigating in the guise as the head of a branch of state government -- can ignore not only a direct court order but reams and reams of directly-on-point precedent. Part of the theory behind this, of course, is that an executive's ultimate bosses, the electorate, have a remedy for correcting his or her choices about which laws to execute and how he or she chose to execute them. Roy Moore, on the other hand, should have been fined and/or jailed, because those are the remedies available to a court being disobeyed. Second, while you are correct that civil disobedience is generally the act of an individual acting in his or her individual capacity, it does not follow that it must always so be. One rather promiment example of civil disobedience by a group of officials acting in their official capacity would be the Continental Congress circa 1776. There the participants in Congress -- not to mention their allies in the colonies' legislatures and executives -- were even more contrarian than Mayor Newsom. Finally, I'll concede you're right when you say "you could see [Roy] Moore as performing an act of civil disobedience as well." That's how I see him. It doesn't stand to reason, however, that all acts of civil disobedience are created equal. To make that determination would require you to start defending the substance of Roy Moore's actions, which I sense is a path you do not wish to trod.
I'm not sure that Simon and I are in disagreement. A few thoughts: 1) I don't find the standing argument a particularly persuasive reason for the Mayor to have issued the licenses. If a gay couple wanted to challenge the California statute, all they had to do was apply for a license and be denied because they were gay. They would have standing. 2) Although I went to law school in California and practiced there, I actually don't know whether there are standing requirements. Standing is a federal doctrine arising out of Article III, so state courts may or may not have an equivalent doctrine. (This might also explain why those challenging the marriage licenses issued to gay couples don't have a standing problem of their own.) 3) I don't think there's a strong argument to state categorically that what Mayor Newsom did is legitimate and that what former Justice Moore did was illegitimate. Rather, it's on a spectrum, and some historical arguments (such as those Simon raised) may affect where we place the two cases on the spectrum. 4) Indeed, the separation of powers argument I threw out might not even be a very good one for the reasons Tony raises. --> Still, whatever way we draw the spectrum, I think it fairly clear that Roy Moore's actions were worse than Mayor Newsom's. By criticizing Roy Moore for defying a court order directed at him, am I therefore obligated out of a sense of consistency to criticize Mayor Newsom? Perhaps, perhaps not. Still, if it will make Tony happy, I'll go ahead and criticize Mayor Newsom: I think this is a silly move, one that clearly violates the state law, and one that is unnecessary to present a justiciable case for the courts to rule on the constitutionality of the California DOMA. It smacks of political opportunism. I don't think it's as bad as the position Roy Moore took, but it's still the wrong way to go about addressing the issue. [I wonder, however, if I qualify as a "left-wing editorial" . . . .]
Prof. Yin, to clear up one thing unequivocally: You don't :)
Worth looking at Jacob Levy's argument over on the Conspiracy...
Well, perhaps I can still get the bounty if I am the closest to left-wing among those who criticize the Mayor . . . .
I am wracking my mind for any way to portray myself as a left-winger so I can win the bounty. I think I may be to the left of....ummm ....well, maybe I better wait for the next constest. A couple of substantive points; There is nothing lawful about a test case. There may be a tradition of winking at them but I think that had Miranda lost in the Supreme court he would have gone to jail. I don't think a "test case" needs 2,300 seperate tests of the law. And finally, Anthony, I think the reason why Judge Moore was treated so harshly by the left-wing editorials is because the right has always stood for respect for the rule of law, as opposed to the left's legal realist point of view. Judge Moore was being hypocritical. Mayor Newsom's actions are acceptable to those who believe that unjust laws have no moral weight. Judge Moore should have known better.
Joel- You wrote: "the right has always stood for respect for the rule of law." I think you left out a couple words. Didn't you mean to write "the right has always said that it stood for respect for the rule of law" ? Because if you really want to frame the formalist v. realist debate as one of "right" v. "left" or "liberal" v. "conservative," methinks you will lose. A pox on all houses claiming the formalist mantle.
Simon- I proudly wear the formalist mantle. At least those on the right say they stand for the rule of law.
Joel- Saying that people say that they follow a particular mode of legal thought that they in fact do not makes them nothing more than raging hypocrites. (Speaking not of you, of course, but of "conservatives" who claim to be "formalists" in general. I'm looking in particular at 'Nino.') Personally, I'd rather laugh with the sinners than cry with the saints. And besides, I think you'll have a tough time convincing anyone that legal realism is inimical to the rule of law. Karl Llewellyn, among others, would be surprised to hear it.
"they were all up in arms about a state official acting solely on his own authority, in defiance of higher powers." No, that's not quite why WE were up in arms. What we were up in arms about was a state official using government time, government space, and his official capactiy to spread a certain religious doctrine. His violation of the court order provided support and validation for the lefty outrage, but was not the root cause. The outrage was due to the meshing of church and state. Newsom, on the other hand, is attempting to divorce the state and religious meanings of marriage. One involves tax brackets and child custody, the other involves ceremony and the book of Genesis. While his actions may turn out to be illegal, he will be seen as an elected official who stood up and did the right thing. On the other hand Judge Moore was a bully trying to curtail the liberty of others. At least that's this left-winger's view of how everyone thinks of it.
"Compare the American Revolution, Abraham Lincoln, and Rosa Parks with the Whiskey Rebellion, 1880s KKK, and Timothy McVeigh." I think the main the reason the first three are judged more positively by history is that they were successful.
A. Rickey--- Terribly sorry if I was taken as being ... too critical. To rephrase (pretty belated, but I don't use computers so much): 1) I shall indeed think twice before I accuse. But if you'll look at what I wrote, it was a pretty thin accusation, indeed almost a parody of one. The point---drawn out---is that if you can't come up with a better argument than what people who don't/can't think very hard have come up with... well, maybe you're right, and maybe you're wrong. But you should be a little concerned that maybe you haven't thought it through sufficiently. No implicit criticism other than a "please be more careful." 2) No, I wouldn't care to put money on it, but that's a consequence of being religiously committed not to gambling. So I'll have to take you less than literally, at least when the clear implication of what I'm saying calls for it. (Would that you would do _me_ the same favor.) Whether or not the New York Times answered this before or after final adjudication isn't my central concern. And it shouldn't be yours, if you believe: 1) The constitutionality of the 10 Commandments, posted in a public forum, at public expense, and with a clear official imprimatur & endorsement, was not an open legal question, and any lawyer who made the step Judge Moore made was deliberately contravening known law; and 2) the constitutionality of laws restricting marriage to heterosexuals after Lawrence and the Massachusetts case is unclear. But never mind that: As a lawyer, don't you have a duty to inquire into legal questions? I don't mean an ethical duty, I don't mean a duty as to a client---I just mean the kind of duty that comes with a mind capable of thinking about questions. One of my favorite writers said this once, about distinctions that are hard to be made: But they must be made, for judging is what minds do. (That may be extraneous.) 3) "Any law student worth his salt." I don't see how your objection follows, but perhaps I'm not thinking hard enough about it. (I'm aware of the irony and beg your forgiveness.) It seems to track the objection to thinking about legal issues as legal issues. To which I would direct you to 2), supra. And remind you that even though the world is not a courtroom, for better or for worse for the remainder of the three years, _your_ world is a law school. Look, if it's about an objection to my phrasing, I'd advise you to toughen up. It's probably not, though, so onward. But as to your point that "what they're taking away is something that the state, acting through Newsom, has given"---well, nothing follows from that, either. I'm sorry if they're legal questions. But you're supposed to be able to answer legal questions. TtP

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