Marriage Amendment

[David Cruz]

Not everyone on conlawprof is on the law and courts list; otherwise, what
would have been the point of Gerber's posting his NLJ piece on this list?
(If he did not post it on the other list, then I retract that rhetorical
question and stand by my further remarks.)

If Gerber wishes not to engage the substantive questions raised by his
post on this list, that's his prereogative.  I, however, fail to see the
value of telling us all that he previously addressed these issues
somewhere else inacessible at this point in time.

I did look around at the law and courts website to see if there was an
archive for the listserv that perhaps Gerber failed to mention.  I was
unsuccessful, but if someone else more inclined to be helpful knows of
one, I would appreciate the URL.

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.


On Thu, 18 Mar 2004, Scott Gerber wrote:

> Cruz's post raises the same issue discussed on the Law and Courts list
> during the last week or so.  My position was posted there.
>
> Scott Gerber
> Law College
> Ohio Northern University
>
>
> At 01:00 PM 3/15/04 -0800, David Cruz wrote:
> >On Mon, 15 Mar 2004, Scott Gerber wrote:
> >
> >> [snip]
> >> National Law Journal
> >>
> >> March 8, 2004
> >>
> >> HEADLINE: Don't abuse a rare process
> >>
> >> By Scott D. Gerber
> >> Special to The National Law Journal; Scott D. Gerber is an assistant
> >> professor of law at Ohio Northern University Pettit College of Law. His
> >> books include To Secure These Rights [NYU Press].
> >> [snip]
> >> California state law explicitly forbids the mayor of San Francisco from
> >> doing what he did, and the state's governor, Arnold Schwarzenegger, has
> >> instructed the state's attorney general to sue the mayor to force him to
> >> stop. Federal intervention-especially by constitutional amendment-therefore
> >> seems unnecessary.
> >> [snip]
> >
> >Is it accurate that California law "explicitly" bars Newsom from having
> >the SF clerks issue marriage licenses to same-sex couples?  Unless Gerber
> >is referring only to California's mixed-sex requirement for marriage
> >itself -- in which case I'm not sure the point above is responsive to
> >Bush's concerns -- I would have expected the remark to be an allusion to
> >Article 3 Section 3.5 of the state constitution, which requires a
> >determination of unconstitutionality by a court before "an administrative
> >agency" may refuse to enforce a state law on grounds of its putative
> >unconstitutionality.  This does not seem to me "explicitly" to forbid what
> >SF did; indeed, their argument is that this provision is limited to state
> >agencies and does not embrace local governments.  Is there some other
> >provision of California law that might explicitly restrain Newsom?
> >
> >David B. Cruz
> >Professor of Law
> >University of Southern California Law School
> >Los Angeles, CA 90089-0071
> >U.S.A.
> >
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> **********
> Scott Gerber
> Law College
> Ohio Northern University
> Ada, OH 45810
> 419-772-2219
> http://www.law.onu.edu/faculty/gerber/
>