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Memo to the New York governor:
Re: Your same-sex juggernaut.
Regarding your decree for New York to be same-sex-marriage friendly—my, you are quick—too quick. Thanks to thoughtful comments received to my earlier expressed concerns about your action, let me remind readers upfront that I filed on the side of traditional marriage in the California cases. While the California opinion is long (more than 170 pages and thoughtful in many ways, it managed not to fully discuss either the procreative importance or religious significance of the traditional family). But unless the court reconsiders, which I doubt, or the people overturn by constitutional amendment, which is too close to call, California by its regular legal process is marching ahead—hopefully—in a way that strengthens community and marriage and, most importantly, families upon which so much depends.
Your executive memorandum by these terms seems imprudent. Here's why:
Article IV of the U.S. Constitution provides that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state." It has been a much-debated question among legal scholars as to what exactly it means when one state—say, California—approves something highly controversial like same-sex marriage when another state—oh, say, New York—has strongly disapproved of the same issue in its highest court. You and your legal counsel have not, in my judgment, fully addressed either the meaning of Article IV against the backdrop of New York's public policy in your hasty directive, and, by your precipitous action, perhaps damaged your own position.
Of course, as a matter of precedent, I know you got zero help from Massachusetts. A quirky old Massachusetts law limited its same-sex ruling to itself—that is, residents of Massachusetts. Imagine stodgy old Massachusetts approving same-sex marriage, but then refusing to marry nonresidents.
California by contrast is made up of people who arrived here yesterday, so we are not that picky. No waiting periods, no residency requirement, and since we're not much bothered if others don't approve of us, no reciprocity required, either—that is, we're willing to issue same-sex licenses whether other states think them valid or not. California is thus hanging 10 on this surfboard all alone, so it's good of you to send us some New Yorkers to keep us company. But here's a question for you, governor, as you are welcoming back home your residents returning from Disneyland: Does your executive pronouncement also authorize New Yorkers who don't have the gas money for Route 66 or airfare to fly cross-country to Laguna Beach to get married in Massachusetts or not?
Oh, wait, that's really a question for the people of Massachusetts; indeed, the Legislature of Massachusetts. The Legislature actually still makes the laws in the Bay State. To someone, such as yourself, with rapid-fire executive pen, lawmaking by lawmakers may seem quaint, even retro. And get this, they are so into that John Adams HBO special, the tricorn-hatters in Massachusetts even have courts working out the kinky ambiguities in statutes. And kinks there can be, like whether the nonavailability of same-sex marriage in Massachusetts to nonresidents turns on whether the nonresident's state constitution does not mandate same-sex marriage (which is the view of the New York Court of Appeals about the New York constitution) or your rather unprecedented, if not unauthorized, order that out-of-state same-sex marriages simply be treated as valid. A single lower-court benefits decision that was not appealed is too slender a foundation for remaking the public policy of the state as it has existed, well, since the state has existed, and as recently confirmed by your high court.
At a minimum, you'll admit it's a question worthy of the final Jeopardy round. Oh, not perhaps for someone like yourself, governor, whose clairvoyant almost paranormal executive decision-making is, as we say in Malibu, way cool. By the way, just curious, but how exactly did you know to instruct New York on the need to handle California same-sex marriages the day before the case was decided?
But don't get us wrong—out here in "Cal-ee-for-nee-a," we like our action-figure governor (you two should "do lunch"), and of course, we're thrilled to be thrust into even an off-Broadway spotlight. We may complain about paparazzi and have Ken Starr drafting ordinances to keep ‘em edgy, but we actually crave the attention. (Who knew, right?)
This "speed racer" disposition of yours is particularly generous since the same-sex marriage licenses we're minting today may not be worth a postage stamp after next November if the people of California decide to amend the constitution and overturn our Supreme Court. As I say, the outcome of that is uncertain and worthy of intelligent debate, and so, as busy as you are making, interpreting, and enforcing laws—you might well hesitate on our ambivalent account. Moreover, governor, a few of your cranky bureaucrats may snipe at you for the massive administrative headache you may have just created in matters of tax, child custody, divorce, insurance, and such by giving full faith and credit to that which California may or may not decide in a few months is au passé. Trends are like that out here, so do try to keep up.
Or better yet, why not wait until the people of New York themselves can chat it up with those elected representatives in Albany? Way boring, I know—no carpe diem, no 15 minutes of fame. Nope, just listening to the people and governing in accordance with their usually sound inclinations. This won't get you Oprah—and definitely not Ellen. It will give you the satisfaction, however, that you kept your oath.
Sure, the niceties of lawmaking and law interpreting and law enforcing could all be done in your office. If democracy were premised upon efficiency, rather than representation and deliberation, this would be a salutary thing. As it is, Madison had a name for the usurpation of power and its unification in a single hand: tyranny.
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David, your point about home rule is well taken, but even in cities with broad home rule, local authority is often quite limited.
Two examples from the city that knows how (but still can’t, as it happens).
California cities have very broad home-rule powers—among the most generous in the nation. But the courts often interpret ambiguous state laws as implicitly preempting local ordinances. San Francisco voters passed a handgun ban by initiative in 2005. Unlike Washington, D.C., which is at least getting the chance to test its ban against the Second Amendment, San Francisco just has its ban invalidated in state court as preempted by a state firearms regulation. The state laws the court relied on are actually silent as to local regulation—they’re laws that establish statewide regulation of firearms. The courts found that these laws occupied the field and implicitly prohibited the local regulation.
Another example of aggressive preemption hobbling local government: San Francisco’s attempt to provide for universal health care for local residents has run into federal preemption problems in court. The city wants to extend its existing coverage provided through SF General Hospital and a network of local clinics to all residents who don’t already have coverage. But it also wants to be sure employers don’t just drop health insurance and dump their employees on the city in response. So it’s added a mandate that most employers either offer coverage or pay a fee to contribute to the city health-care plan. This is not a regulation of employee benefits—the city isn’t making anyone provide health-care benefits. It’s just making those who don’t offer coverage to pay the fee (or better put, it’s making every business pay a fee for local health care and exempting those business that provide coverage for their employees) in order to ward off the free-rider problem. But this initiative is being challenged as preempted by ERISA, which regulates employee benefits and preempts almost any state of local law in the field. Is San Francisco’s ordinance even within the field of employee benefits, or is it just a fee levied on local businesses (which the city is otherwise entitled to levy) coupled with a city-provided service? A broad interpretation of field preemption will kill the city’s health-care initiative.
Now you might think the city has no business trying to mandate universal health care—it’s not really a local issue, right? But consider this: The city already operates a large health-care system because, as a consolidated city and county, it’s responsible for public health care for the indigent. The city discovered that it spent a fortune treating poor people in the ER of SF General for conditions that really should be treated cheaply in routine doctor's-office visits. So it set up a network of free neighborhood clinics to provide preventative and routine care in order to keep those people out of the ER. At this point, the city already has a health-care network in place. But what about people who have jobs and aren’t indigent but who still don’t have health care? When they get really sick, they wind up at SF General, too. So the city wants to cover them in the clinics. This led to the push for universal health care and to the contested employer fees.
I’m not at all certain this is good policy. It’s possible that, as the small-business owners and restaurant owners argue, the mandate will put people out of business and make everyone worse off. Restaurants have gotten together and decided to tack a fee onto every bill to cover the costs of the new health coverage. They want the consumer to know why they’re paying extra for their five-course tasting menu and wine flight. Maybe the extra costs will drive away consumers and put the marginal restaurant out of business. Maybe it will even destroy the foodie culture here and consign us all to have to eat at Red Lobster and Outback. But isn’t this just the kind of local effect we should expect a city to be sensitive to and adjust to? And mightn’t it be a good idea to let a local government experiment with universal health care to give Hillary Clinton and Barack Obama some actual information to work with when they argue about it?
These aren’t home-rule issues, but they are examples of how we hobble our cities from doing what cities ought to do—experiment with new policy ideas that might not occur to legislators or bureaucrats at the state or national level—or might not get past the special interests there.