Saturday, February 21, 2004

When is it OK to disobey the law? When you think you can get away with it?

Dear Kari:

In regards to your question about when is it okay to disobey the law, I too found Volokh's view persuasive.

I enjoy Volokh and his buddies over at Volokh Conspiracy. Pretty much any legal matter that makes the news will be dissected over at their blog in an intelligent and exhaustive fashion.

On this occasion, he has good points as usual, but, in my opinion, his argument's effectiveness is derived more from political practicalities rather than ironclad principles. His argument seems to come down to this: a government official can disobey the law if he thinks he can get away with it.

I agree that generally government officials ought to obey the law, even when they rightly believe that the law is wrong; that is part of what we think of as the Rule of Law.
But part of American law is the principle that unconstitutional laws are not laws at all. This principle isn't always taken to its logical conclusion, but generally it is understood to be the principle.
His actions are, I suspect, partly calculated to create a test case that would lead the California Supreme Court to decide the matter.
I would have to agree with this analysis. Government officials should abide by the rule of law. But, he rightly points out, civil disobedience is often the first step in changing a law that needs to be changed.

I would like to ask Volokh if his criteria for disobeying the law would be different for private citizens versus government officials. Would he have a stricter standard for government officials? I would think so from the way he approaches it but that is an inference on my part.

Volokh then explained why San Francisco Mayor Newsom's actions are defensible.
The matter is different, I think, when (1) there's a clear precedent squarely rejecting the government official's constitutional position, or (2) a court order to the government official requiring the official to act in a certain way (and the official has not appealed the order). Here, I think the rule of law arguments do cut very much in favor of requiring the official to comply with the legal rules, even ones with which he disagrees. That's why I think Justice Moore was acting wrongly, especially when he defied a federal court order; both factors (1) and (2) were present in his case.

Neither (1) nor (2) are present as to gay marriages in California
I'm a molecular biologist not a lawyer.

But Volokh's argument seems to be: you can disobey a law if it is probable that you will not suffer any consequences (factor #2).

And factor #1 doesn't apply in this case because this is the first time to my knowledge the marriage laws are being challenged in so public and large scale a fashion. Thus, there isn't a precedent against Newsom's actions?

Going back to Volokh, more excerpts:
But I don't think that one ought to also fault Newsom for usurpation, or departure from the rule of law, so long as his position is a legally plausible interpretation of the state constitution.
Still, I do think the basic point remains: A government official is entitled to -- and sometimes possibly even obligated to -- refuse to comply with laws that he thinks are unconstitutional, when there's a serious argument that they're unconstitutional, when there's no clear precedent that says they're constitutional, and when there's no court order ordering him to comply with the laws. That's Mayor Newsom's situation, at least right now. Such challenges to existing laws are part of our rule-of-law tradition. But when a government official (especially a judge) refuses to follow pretty clearly binding precedent, and also flouts a court order, then I do think the rule of law is jeopardized.
Volokh's argument seems to rest on two things: (1) Newson is not likely to suffer any consequences for his actions and (2) the law may be changed in the near future.

However, is this a local phenomena? Is this unique to California? Or Massachusettes?

I would like to ask Volokh how he thinks this scenario would play out in another city in another state where the Gay community is not as influential.

What if Mayor in hypothetical SmallTown USA were to start granting marriage licenses to same-sex couples and the Governor of hypothetical SmallState were to issue fines on that mayor and direct her Attorney General to obtain and successfully gains a court injunction against SmallTown mayor?

Factors #1 and #2 would apply? Would Volokh call for that Mayor to back off?

Did I just make a State's Rights argument against the Federal Marriage Amendment?


P.S. My personal view on the subject of gay marriage is unambiguous: marriage is between a man and a woman. However, I recognize that my personal ethics derived from a religious foundation may not necessarily be the proper basis for secular law. I'm still formulating my thoughts on the subject from a public policy stand-point. Perhaps, we will spend some bandwidth on that some time soon.

P.P.S. I'll email Volokh. He gets tons of email as his blog is so well known so I'm not likely to get a response but it will be fun to try anyway and if he replies, I'll post an update.

UPDATE: The Govenator has asked his AG to take legal actions against San Francisco.


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