Obedience to a government
is maintained by two methods: Force, and Tradition. Force need not
be elaborated upon. Tradition exerts its influence through the respect
and deference that men give to long established habits. Governments
that lack the supporting power of Tradition struggle in maintaining their
authority. Such is the current situation in both Iraq and Haiti, or
in any country whose government has not been long established.
that allows the flaunting of its traditional authority will soon find that
it has lost that authority. Recently, judges have ignored the traditional
deference of the judiciary to the legislature. This has directly led
to tyrannical decisions: For example, the Massachusetts Supreme Court legalizing
same-sex marriage, despite vocal opposition from both the legislature and
the populace. The current action of the mayor of San Francisco has
taken this disrespect of the traditional divisions of power to a new and
more dangerous level.
Separations of Powers in American Government are of two kinds: Horizontal,
and Vertical. Horizontally, power is divided between the legislative,
executive, and judicial branches. Much has been written concerning
the dangers of judicial tyranny, and I shall not duplicate it here.
The founding fathers were more concerned with the dangers of a tyranny by
the executive, because the executive held control of the governmental instruments
of Force: the police, and the army. When the possibility of a judicial
tyranny was raised, Madison dismissed it, arguing that if a judge dared to
defy the will of the people, the people could just ignore him.
in the United States is also divided vertically. We operate under shared
sovereignty. The Federal Government has specific delegated powers.
According to the 10th Amendment, other powers are reserved for the States.
The Constitution establishes the supremacy of federal law over state law
when the two are in conflict. These divisions of power were established
to provide checks and balances that protect us from tyrannical government.
The mayor of San Francisco has violated both horizontal and vertical separations
passed a law that prohibits same-sex marriage by the method of voter initiative,
a democratic process that is recognized by the California Constitution as
a legitimate method of creating law. One man does not have the authority
to repeal this law. Not even the Governor of California has this authority.
The California Constitution does provide several methods to change this law.
A majority of the legislature with the approval of the governor, or a two-thirds
majority of the legislature, may repeal this law. These methods retain
appropriate checks and balances. California’s Supreme Court might also
subject the law to judicial review. Although doing so would continue
to erode the tradition of judicial restraint, the California Supreme Court
does hold authority over all of California.
this with the mayor of San Francisco, who has no authority of any kind in
this matter. He was not elected by the voters of the entire state.
Yet he presumes to appoint himself dictator in deciding the definition of
marriage for all of California. Nay, if one listens to his statements,
he wishes to define marriage for the entire country. Municipalities
can regulate commerce within their own city limits, states within their state
boundaries, and the federal government regulates interstate commerce.
Can one imagine the chaos that would ensure if cities attempted to regulated
commerce throughout the United States? The Civil War was triggered
by the Southern States insisting that they had authority to dictate to the
federal government how to treat slavery in federal territories.
the mayor of San Francisco belongs to the executive branch, not the legislature.
It has always been the legislative branch which has authority to make or
repeal laws. Executives have the authority to implement the laws which
the legislature has approved, not to make new ones. During the Civil
War, President Lincoln’s emancipation proclamation was only effective in
states that were rebelling, and derived its authority from the President’s
war-making powers. Freeing the slaves in other states required a Constitutional
Amendment, approved by both Congress and the voters. Despite the horrific
evils of slavery, abolitionists did not circumvent established Constitutional
methods of achieving political change.
accurate way of describing the mayor of San Francisco’s behavior is rebellion.
Those supporting him are supporting the rebellion of a self-appointed dictator.
I do not believe this is the intent of the mayor or his supporters, but that
does not change the true nature of his actions. Extend the mayor’s
actions to their logical conclusions: If a city mayor can determine
who to issue marriage licenses to, why not driver’s licenses? What
if a mayor decides to ignore California law and issue driver’s licenses to
illegal aliens? Could a county poll worker decide to allow non-citizens
to vote? This is bigger than same-sex marriage. At its heart,
this issue is over authority. Who has it? If authority is not
determined by Constitutional provisions, then what separates us from anarchy?
If the will of the people can be overturned by one, unelected, self-appointed
man -- can we truly claim to be a democracy?
and his supporters make the claim of Moral Authority, drawing comparisons
with the Civil Rights movement. Even setting aside the incongruity
of a group claiming Moral Authority while promoting approval of a lifestyle
denounced by all major religions as immoral, the comparison is fallacious.
The Jim Crow laws in the South, and the behavior of her elected officials
were in direct defiance of civil rights laws that had been on the books for
over fifty years. The Civil Rights movement was not only protesting
immoral laws, they were protesting illegal laws. The federal government
had simply declined to exercise its power, and allowed the Southern Sates
to usurp its authority, thus betraying the Black People, and the promise
of Reconstruction. The power of the Civil Rights movement was that
it shamed the country into enforcing its own laws.
Rights movement did not circumvent established Constitutional methods of
achieving political change. However the gay rights movement has
willingly circumvented democratic methods of change: First, by convincing
courts to reinterpret civil rights laws prohibiting racial discrimination
into laws prohibiting moral discrimination, and now by convincing executives
to ignore their constitutional limitations. Both of these methods ignore
the will of the American public and dismiss democracy as being less important
the sale of illegitimate marriage licenses is a form of fraud. The
city of San Francisco has reaped financial gain from the influx of same-sex
couples purchasing marriage licenses that have no legal value.
will not hold, Force must be used or a Government will lose all credibility.
The first check on rebellions like the mayor’s is the State Executive, who
should zealously guard the supremacy of State authority over the city of
San Francisco. Just as President Eisenhower used the military to force
Southern States to recognize the authority of the Supreme Court and the Federal
government by integrating schools, Governor Schwarzenegger must force the
mayor of San Francisco to recognize the authority of the people of California
be whatever means necessary.
has only worsened the situation. When a similar incident occurred in
New Mexico, an immediate, sharp, verbal correction from the Governor was
sufficient. Though unlikely to be effective in California now, the
same method should be attempted. If, as is probable, the mayor of San
Francisco ignores this warning, Governor Schwarzenegger should have him arrested
for fraud. I recommend this course rather then a direct confrontation
over the mayor’s rebellion, because I believe it is less likely to inflame
the passions of the factions in the debate over same-sex marriage, and thus
more likely to lead to a peaceful conclusion. I know that all good
men must hesitate at the use of Force, but if the Governor does not act he
invites a perception of powerlessness which will encourage similar rebellions
by other groups promoting other agendas. Every day the Governor does
not act is a step closer to anarchy.
Daniel Oaks is a History teacher in Washington State with degrees in both History and Economics.