Civic disobedience
Newsom, gay marriage, and the politics of the revolutionary gesture.

By Tim Redmond

EARLY IN THE movie Star Trek VI, Captain Kirk, whose son was killed by the Klingons, is arguing against a Federation directive that he go on a peace mission to the Klingon Empire. In one of the great moments in Trekkie history, Mr. Spock looks at him calmly and notes, "There is an old Vulcan proverb: Only Nixon could go to China."

In (somewhat) the same vein, it's oddly appropriate that a straight, married, Roman Catholic mayor would be the one to make history by legalizing gay marriage in San Francisco. But Newsom has done more than that: a mayor who got elected by raising big money from powerful downtown businesses, who ran on a law-and-order platform, and who couldn't have taken office without the overwhelming support of Republican voters has vaulted himself into national prominence by committing an act of civil disobedience.

Newsom and City Attorney Dennis Herrera have all sorts of arguments to buttress the claim that Newsom had the legal right as mayor to order the city clerk to issue same-sex marriage licenses. They talk, for example, about the distinction between state agencies (which by statute are specifically required to follow state law unless directed by a court) and the chief executive of a charter city and county (which isn't mentioned in that statute). But that's just lawyer talk. When you get right down to it, even the city's own legal briefs in the case tacitly admit what's really going on here:

Newsom – to his immense credit – recognized that the state law limiting marriage to one man and one woman was, and is, unconscionable. So he decided not to obey it.

"Suppose the California Legislature, perhaps in an attempt to discourage gang activity – enacted a statute prohibiting any public school student from donning hats or other head attire," the city's response to Attorney General Bill Lockyer's lawsuit begins. "If the highest courts of several other states had already held ... that identical legislation could not constitutionally be applied to prevent Muslim girls from wearing head scarves or Jewish boys from wearing Yarmulkes in their states, would local school districts in California be required to enforce the statute?... Would it be shocking if officials in a disproportionately Muslim community were the first to stop enforcing these laws?"

Unfortunately, but not surprisingly, the state Supreme Court ruled unanimously and unequivocally that the schools would, indeed, have to ban the scarves and yarmulkes – until a judge had ruled the law unconstitutional. That's typically how these things go: courts like to retain to themselves the right to decide which laws are enforceable and which ones aren't.

But the entire argument is fascinating, because it puts Newsom, in his official role as the mayor of a city, in the same position that a sizable number of his constituents have been in over the years. Like AIDS activists who crashed meetings to demand action, pacifists who tried to shut down the war machine, and so many others who are part of San Francisco culture and history, Newsom is willfully refusing to go along with a situation that is so heinous it can't be tolerated – and is using his actions to make a political statement.

That is the essence of civil disobedience, which, of course, has a long and noble tradition in this country.

But most of the honorable lawbreaking we celebrate these days – whether it's the Boston Tea Party or the protests of Rosa Parks or Daniel Ellsberg or a thousand others – was the work of individuals or private groups. Newsom effectively created a new category – municipal civil disobedience – which puts the entire force of the (thankfully, united) government of this town behind his refusal to accept an unacceptable law.

In the end I'm convinced that, like so many other civil rights pioneers who defied the laws of the land, Newsom will wind up not only exonerated but also celebrated. The laws against gay marriage will never survive, and 20 years from now, refusing to accept those laws will seem so natural and obvious that people will wonder what all the fuss what about.

But on another level, Newsom's actions raise all sorts of fascinating questions. If San Francisco can legalize gay marriage, can the city legalize marijuana (say, by planting a municipal crop and selling it, openly, to people with medical needs)? Can the city refuse to enforce the USA PATRIOT Act? (Proposition E was a step in that direction.) Personally, I love this idea.

Of course, there's a flip side: can a conservative mayor in the Central Valley start issuing licenses for assault weapons? As the old legal saying goes, good people in good times shouldn't set precedents for bad people in bad times.

But beyond the specifics, the whole thing could be part of a profound change in the way this country is governed. At a time when the United States (and to a certain extent, California) is bitterly divided between liberals and conservatives, the whole concept of federal authority and even state authority – certainly on civil rights issues – may be giving way to cities. And if you live in San Francisco, maybe that's not such a bad way to go.

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March 17, 2004