"They don’t like our Constitution," asserted Gavin Newsom, Mayor of San Francisco. That incredible remark, uttered on television the other day by the chief executive of "Baghdad by the Bay," referred to the supporters of real marriage, who qualified a constitutional amendment for this November’s general election ballot to reaffirm what the voters decided with Proposition 22 in 2000. Suddenly, the California Constitution that never—repeat, never—protected any "right" by persons of the same sex to marry each other becomes "our Constitution." How did this happen and what does it mean? There are no more intense and full-fledged opponents of constitutional government than liberal politicians like Gavin Newsom. The purpose of a written constitution is to check the exercise of political power by the government and the abuse of liberty by the citizens. Just as every legislator, executive and judge is obliged to uphold our Constitution and laws, so too is every citizen. Constitutional government is all about restraining passions.
But there is no evidence that Mayor Newsom believes this. The same man who solemnly intones that "our Constitution" is not liked by those who disagree with him about marriage, has publicly stated that he will not comply with any federal legislation that criminalizes efforts to help illegal immigrants.
Such defiance is not out of character for Newsom, who began the campaign to legalize same-sex marriage by defying openly state laws which restricted marriage to one man and one woman. Remember all those "gay marriages" at San Francisco City Hall that had to be nullified because they were illegal? "Our Constitution" then had not the slightest connection with same-sex marriage, but somehow the Mayor knew all along that it did.
The question for us is whether Newsom "knew"—in a theoretical or a practical sense—that the ultimate outcome of his then lawless actions would be a State Supreme Court decision giving a fantastical interpretation of the Constitution’s equal protection clause. That is, was he merely another "idealist" who believed so strongly in his judgment that he was willing to defy the law? Or did he have inside knowledge of the Court’s deliberations and intended decision?
One difficulty with the first possibility is that Newsom is a government official, just like those southern politicians who appealed to "states’ rights" for 60 years before the Civil War to defend slavery, or to impose racial segregation for a century afterwards. The claim of civil disobedience seems a sham when one government official is simply defying another set of government officials.
The merits of civil disobedience aside, the only proper name for Mayor Newsom’s planned defiance of federal laws on illegal immigration, and his already demonstrated disregard for state laws on marriage, is lawlessness. For the same man piously to invoke "our Constitution" now that the state’s highest court has reached the same pernicious decision that he has, is enough to engender outrage in any law-abiding citizen.
Newsom’s public embrace of "our Constitution" following a history of lawless behavior should also make us very suspicious. What does "our Constitution" really mean? The old one that upholds the rights of all citizens to do what the law permits or does not forbid? Or is it the new one that invents rights whenever a majority of the Supreme Court reaches that conclusion? What did Newsom know and when did he know it? We are unlikely ever to know.
Our republican government is as wary of judicial tyranny as it is of legislative or judicial tyranny. Abraham Lincoln was severely critical of a United States Supreme Court decision which held that Congress had no power to restrict slavery in federal territories and that black persons had no rights which white persons were bound to respect. While not challenging the ruling between the parties in Dred Scott v. Sanford, (1857) Lincoln refused to accept the Court’s ruling as the last word on the subject. As he said in his First Inaugural Address (1861):
"[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
The citizens of this state who seek to overturn the decision of our highest court to defy thousands of years of sound practice, based on "the laws of nature and of nature’s God," are acting in the spirit and following the good example of our nation’s sixteenth president. They understand, as he did, that the people—not the mayors, not the judges, not even the legislators—are the sovereign rulers.
Unlike Mayor Newsom or the California Supreme Court, these citizens understand that the Constitution is based on what Thomas Jefferson correctly referred to as the "moral law." The whims of mayors and judges cannot be permitted to corrupt marriages and families.