Bad city.

Bad city.

Bad city.

The law, lawyers, and the court.
Feb. 23 2004 7:32 PM

Bad City

What's an attorney general to do?

One needn't tread too far into the blogosphere to find comparisons between San Francisco's outrageous new mayor, Gavin Newsom, and Alabama's outrageous former chief justice, Roy Moore. Some commentators have urged that there is no difference between the demagoguery and lawlessness in the two men's actions—Moore's refusal to remove a washing-machine sized-monument to the Ten Commandments from his courthouse rotunda, and Newsom's spontaneous unilateral decision to issue marriage licenses to gay couples. Others argue that there are, at least for now, principled differences between the two men's actions. As Eugene Volokh points out, Justice Moore chose to flout a federal court's order to remove the tablets, as well as settled case law in the area. Thus far, Newsom can still argue that he is merely refusing to adhere to a state law (banning gay marriage) that violates the California constitution's equal protection guarantee. Moore had sped miles beyond Rosa Parks and mere civil disobedience when he was removed from office; he had crashed head-on into sheer lawlessness. Newsom is still on the bus, although whether public officials should generally find less aggressive and disruptive ways to test novel legal theories remains an open question.

One comparison that will soon be made is between the conduct of the respective state attorneys general in the two cases. Alabama's AG, Bill Pryor—who was just elevated to the 11th Circuit Court of Appeals in a recess appointment by President Bush—is coming out looking pretty good compared to California's Bill Lockyer. Pryor, an outspoken and often controversial conservative, agreed with Moore's view of the Establishment Clause and had even defended that interpretation in court, yet he personally prosecuted Moore at his November trial. Conservative commentators will rush to suggest this makes him nothing short of saintly. Lockyer, a Democrat, has not only refused thus far to act against Newsom, but he's also used the opportunity to publicly dis the governor, Arnold Schwarzenegger, who demanded last Friday that he "take immediate steps to obtain a definitive judicial resolution of this controversy."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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Lockyer's response? "The governor can direct the Highway Patrol. He can direct the next Terminator 4 movie if he chooses. But he can't direct the attorney general in the way he's attempted to do," he told the San Francisco Chronicle. Already his conservative critics are threatening to take action against Lockyer for "not doing his job."

Bracket for a moment the politics in both cases—Pryor, who was at the time seeking judicial confirmation to an appeals court, needed to show that he was above partisan politics and behind the rule of law. Lockyer, a likely Democratic challenger to Schwarzenegger in 2006, wants to show not only that he will uphold California's Proposition 22—the mini-DOMA that defines marriage as exclusively between a man and a woman—but also that a few gay marriages in the meantime are not going to whip him into a frenzy of hate and intolerance.

Bracket, also, the timing. Pryor took a good while to come out vigorously against Moore; indeed he initially offered to argue on Moore's behalf—saying that the federal interpretation of the ban on religious symbols in state buildings was incorrect. So, while Lockyer seems to be dragging his feet in California, Pryor was not exactly Speedy Gonzales when it came to ousting Moore. Moreover, by the time Pryor went after him, Moore was already in contempt of a federal court order. Pryor's only choice was to remove him or advocate Alabama's secession from the United States.

Although his critics are vague on what laws have been broken, Lockyer is only partly correct in saying that there just isn't much more he can do about the goings on in San Francisco. He is correct that the governor does not have the power to order him to simply stop the weddings, and he is also correct that Schwarzenegger's claims of riots and deaths—cats sleeping with dogs in the Presidio—are absurdly hyperbolic. Until last week, Lockyer contended that no one had asked his office to weigh in on the issue at all; that there was no affront to state law yet. That was somewhat disingenuous. Lockyer now argues that he is doing what his office permits him to do—filing a reply brief in the city's case against the state, and doing that on an expedited basis. He also says that he is soon planning to seek a court judgment declaring San Francisco's action in violation of state law. Since several previous attempts by gay-marriage opponents have already failed to produce an injunction—local judges have not bought the argument that allowing these weddings to proceed will cause irreparable hardship—it's not clear that he can prevail here, either.

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But just as the value of these licenses is largely symbolic, Lockyer's relative silence is also symbolic. In New Mexico last week the power of a swift and vigorous condemnation by the AG was made pretty clear. The Sandoval County clerk's office granted licenses to 26 gay couples before New Mexico's Attorney General Patricia Madrid issued an opinion saying the licenses were "invalid under state law." That was enough to stop the festivities. A similarly strong, if legally meaningless, statement from Lockyer should have issued immediately as the licenses started to flow.

Unlike Pryor, who really had to enforce the law where Moore was concerned, it's not yet clear what Lockyer ought to enforce, or how he ought to do so. As Richard Ford argues today, what Newsom has done isn't so much a violation of the law as a legal impossibility. It's hard for the state to argue that the San Francisco licenses are both meaningless paper and illegal.

It will take a while for the California courts to sort out what's happened in San Francisco and what needs to be done about it. Let's give Lockyer the chance to be a Pryor and do the right thing.