Topic: Government & Politics

San Francisco: The Limits of Civil Disobedience, and a Test for the Media
(3/3/2004; 3/12/2004)

As we all know, San Francisco Mayor Gavin Newsom directed the city to issue marriage licenses to gay couples in defiance of state law. Encouraged by theCalifornia courts taking a month to force the city to obey the state's laws, other cities across the country have taken the same course. The press called this "municipal disobedience;" but it is really an act of anarchy, and an example of wholly unethical conduct for elected officials.

This has nothing to do with the worthiness of Gavin's cause. As discussed elsewhere on this site, the movement, spawned by recent Massachusetts court rulings, to legalize gay marriage is in keeping with basic Constitutional principles. But democracy requires citizens to let the democratic process and the rule of law work, infuriatingly slow as it sometimes is, and not to hijack controversies by taking the law into their own hands. This is even more emphatically so for elected officials.

Civil disobedience, Henry Thoreau's favored device that requires one to violate an unjust law and pay the penalty for doing so, can be a courageous and principled act. But it is an act that is in the social arsenal of citizens, not elected officials, who are pledged to uphold the laws of their governmental units and the country as a whole.

When Newsome became mayor, he swore to uphold the laws of the city, county, state and nation as laid out in San Francisco's municipal code:

SEC. 3.100. POWERS AND RESPONSIBILITIES.

The Mayor shall be the chief executive officer and the official representative of the City and County, and shall serve full time in that capacity. The Mayor shall devote his or her entire time and attention to the duties of the office, and shall not devote time or attention to any other occupation or business activity. The Mayor shall enforce all laws relating to the City and County, and accept service of process on its behalf.

He didn't just pledge to uphold those laws that he liked, or agreed with, or thought were fair. His job, as defined by statute and as agreed to by him, is to enforce all laws "relating to the City and County." Those laws, as currently enacted by democratic processes (including a 2000 state referendum), prohibit gay marriage.

If the mayor, in his conscience, cannot bring himself to do his job, he has one honorable option: resign, and then protest the objectionable laws as a citizen. What he is doing instead is willful misconduct. Back to the Code:

e) OFFICIAL MISCONDUCT. Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law, or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law.  When any City law provides that a violation of the law constitutes or is deemed official misconduct, the conduct is covered by this definition and may subject the person to discipline and/or removal from office

As new court battles loom, the greater issue is being lost. The irresponsible behavior of San Francisco's mayor doesn't simply address (for a while anyway) a perceived injustice in the law. It sets a dangerous precedent that threatens the democratic system. Democracy is based on respect for differing points of view, accepting the will of the majority as expressed through democratic means, and working within the system for change. If a mayor can use a city to over-ride this law, all laws, wise and just, flawed and ill-considered, are at risk. Ethical conduct requires due consideration of the scope and long-term results of one's actions. This action risks organic harm to the nation that goes far beyond the stakes of gay marriage.

The ethical murkiness of San Francisco's rebellion shines through in the statement of Chief Deputy City Attorney Therese Stewart, whose law school should demand her diploma back, after state judges refused to stay the marriages.

"Both judges recognize that there's no one who's hurt by allowing gay people to be married," she said. Uh, Theresa, since when was the standard of law enforcement based on whether anyone was "hurt?" And isn't obvious that allowing cities and public officials to ignore any law they don't like threatens the rule of law, hurting every citizen? Theresa, being on a roll, continued her assault on logic with this gem: "The anti-gay groups say we've violated the rule of law. Obviously, their law books don't include the state Constitution." No, Theresa, just about anybody who can read says you've violated the rule of law. Your equating an accurate description of events with being "anti-gay" is intellectually dishonest and unethical. Moreover, neither you, madam, nor your boss the mayor, are the ones charged with determining what the state Constitution says. When you jump past the courts to make your own constitutional calls, you are violating the rule of law.

The Ethics Scoreboard isn't anti-gay, but it is anti-arrogant, pledge-violating, law-breaking public official.

And now for the media test!

The manner in which the San Francisco mayor has chosen to defy the laws of his state in order to champion gay marriages is exactly equivalent to Alabama Chief Justice Roy Moore's action in placing a monument to the Ten Commandments in the state judicial building. Both were engaged in official misconduct under the justification of civil disobedience. Both based their actions on a theory that the law they were violating was unconstitutional.

Both actions are wrong, regardless of the legal merit of their arguments. Moore, of course, has been impeached and removed from office. The test, however, is this:

How many newspapers, editorial pages, talk show hosts and commentators have reported on the San Francisco story in the same approving or disapproving terms that they applied to Judge Moore? Take note of this, and you will have some excellent and useful data to evaluate, among other things, the ethical consistency of pundits and the real status of bias in the media.

Media Test Update….It took about a month, but Washington Post media commentator Howard Kurtz became the first to notice the similarities between the conduct of Justice Moore and Mayor Gavin, and the disparity in the media's treatment of the two.

 

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