IS A BLATANT VIOLATION OF LAW CONSIDERED “HARM”?
Interesting. Two judges now have refused to halt marriages of gays. Their reasoning? (Put to one side, for the moment, the all-important semicolon issues.) Apparently, the reasoning is not that the laws preventing such marriages violate the state Constitution (the legal fig leaf that S.F. mayor Gavin Newsom is using to justify the marriages). Instead, the reasoning is: even if state law is being violated, who is really hurt by that?
Interesting viewpoint. We can all violate state laws to our heart’s content, and no judge can stop us, as long as he/she feels that our violation of law is not causing anyone harm.
It seems to me that the same logic would justify ignoring state law requirements that law-abiding citizens obtain permits to carry concealed weapons. Such requirements arguably violate the Second Amendment. Sure, abolishing such requirements would clearly violate state law. But who would be harmed? Actually, research indicates that bearers of concealed weapons would actually be better off.
Hmmm. Maybe I’ll trash my federal judicial application form and run for mayor of Los Angeles. May I count on your vote?
You know that the best part is still coming. When they get around to finally ruling on this, they’ll cite not the few hundred who got “married” before the first injunction was denied, but the multiple thousands afterwards as weighing against it.
Comment by The Angry Clam — 2/20/2004 @ 10:34 pm
Would the fact that it is a penal violation get in the way of an injunction? I vaguely recall, as a general rule, that equity will not enjoin a crime.
Comment by Xrlq — 2/21/2004 @ 9:18 am
Hey, Patterico — the judge seems to have said that there was not a sufficient showing of “immediate and irreparable” harm to justify a preliminary injunction pending trial, which appears to be scheduled for next month. That’s a bit different from saying that there was no harm. Let’s hope the Senate Judiciary Committee doesn’t catch you on this one!
Comment by Jackie — 2/21/2004 @ 10:57 am
I would be interested in your thoughts on what the California Supreme Court will do with this issue.
Comment by Jackie — 2/21/2004 @ 11:18 am
Lockyer, Arnold and SF
According to Saturday’s LA Times, the Governor “directed the state Attorney General Friday to take immediate action to stop San Francisco’s parade of same-sex marriages…”In a strongly worded letter to Bill Lockyer, the governor said that because San …
Trackback by The Interocitor — 2/21/2004 @ 12:17 pm
The harm, as Patterico points out, is NOT the marriages per se. It’s the flouting of the state law by city officials, and purposeful inaction by state officals and judges.
What happened to the “rule of law and not of men”?
Comment by Kevin Murphy — 2/21/2004 @ 12:29 pm
I suggest that at the next injuction hearing, the audience all light up cigarettes when the judge gets to the “harmless civil disobedience” part. Of course, a night in jail might be a bit much to pay for demonstrating irony.
Comment by Kevin Murphy — 2/21/2004 @ 12:31 pm
Jackie,
I haven’t seen the judges’ rulings. The SF Deputy City Attorney said: “Both judges recognize that there’s no one who’s hurt by allowing gay people to be married.” I think it’s likely that the paper’s characterization is how the court stated its findings, since that is the standard for an injunction. However:
Even assuming your tweaking to be correct, I find it astounding that a judge can refuse to stop a municipality from engaging in a blatant violation of law on the basis that nobody is being harmed, whether irreparably, immediately, or otherwise. If the law is unconsitutional, that’s one thing — but that’s not what I’m hearing the judges saying. What I’m hearing is: maybe SF is blatantly violating the law, but if I as judge think that nobody is (even irreparably and immediately) harmed, then that’s fine. We’ll let it go for now.
That’s not how I view the law. It seems to me that a violation of the law is harm enough.
What about my analogy? Let’s say that I can convince a judge that preventing people from carrying concealed weapons causes more harm than allowing them to do so. Do I get to ignore state and local laws against carrying concealed weapons without a permit, and upset the considered judgments of lawmakers on the issue, because I can get a single judge to agree with my view of what is and isn’t harmful?
That doesn’t seem like the rule of law to me.
Thanks for commenting.
Comment by Patterico — 2/21/2004 @ 1:37 pm
I’ve barely begun to tweak. In the alternate universe that is San Francisco, the judge apparently does indeed think that there is a real issue about the constitutionality of the law, as I had assumed (per news reports, the judge said that “If the court has to weigh rights here, on the one hand you are talking about voting rights, and on the other you are talking about equal rights”). (Perhaps this was more lucid in the context of his entire decision.) If that’s the case, then he did need to look at whether the harm was immediate and irreparable. For the immediate and irreparable harm element in a preliminary injunction, I don’t think it is sufficient to show simply that a written law is being violated, if the judge finds that there is an issue about the validity of that law. He’s probably assuming that if the marriages licenses are ultimately found to be invalid, they can simply be nullified later. It seems to me that the judge decided everything incorrectly, but on the irreparable harm element, he just seems wrong, not completely crazy.
As to your analogy, wouldn’t the harm be the supposed increased danger if concealed weapons were allowed, which could result in consequences to others that were both “immediate” and “irreparable”? Would it be appropriate in that instance for a judge to substitute his or her own judgment for that of the legislature on the harm involved in carrying concealed weapons? I agree that it probably would not be.
Comment by Jackie — 2/21/2004 @ 7:03 pm
Well, the calculus does change if the law is truly unconstitutional. Which it is not.
I am glad that you agree a judge should not substitute his/her judgment for that of the legislature regarding whether there is any harm in violating a law.
I also think it is always dangerous to form opinions about judicial decisions (or anything else) based on news reports — especially those contained in the Los Angeles Dog Trainer.
Comment by Patterico — 2/21/2004 @ 8:06 pm
Submitted for Your Approval
First off…  any spambots reading this should immediately go here, here, here, and here.  Die spambots, die!  And now…  here are all the links submitted by members of the Watcher’s Council for this week’s vote. Council links:Dr. Cann…
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First off…  any spambots reading this should immediately go here, here, here, and here.  Die spambots, die!  And now…  the winning entries in the Watcher’s Council vote for this week are Doggie Weddings in Frisco by Damnum Absque In…
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