Unfortunately, the distinctions between the actions of Gavin Newsom and Roy Moore are lost on the national media.
San Francisco Mayor Gavin Newsom’s defiance of California law regarding gay marriage inescapably brings to mind Alabama Judge Roy Moore’s defiance of a federal court order regarding his Ten Commandments display. It also brings to mind an important question: which individual’s defiance of the rule of law is more egregious? Moore’s or Newsom’s? The national media believe the answer to this question is Judge Moore, which is clearly visible in comparing their favorable coverage of Mayor Newsom to their disparaging coverage of Judge Moore. The media have it wrong. It is Gavin Newsom who has committed the more egregious violation of the rule of law.
First, let’s look at the situation in Alabama. In placing a monument of the Ten Commandments in the rotunda of the Alabama Supreme Court building, Judge Moore was following state law, or at least a reasonable interpretation of it. Indeed, as Moore frequently pointed out, the Preamble to the Alabama Constitution invokes "the favor and guidance of Almighty God." Also, the Alabama Constitution required Moore to conclude his oath of office with the phrase, "[S]o help me God."
Moreover, during his campaign in 2000 for the office of Chief Justice of the Alabama Supreme Court, Judge Moore promised to "restore the moral foundation of our law." As part of this pledge, Judge Moore ran as the "Ten Commandments Judge," and even employed the phrase "Ten Commandments Judge" in one of his election slogans. Judge Moore received 54.7 percent of the vote and had his mandate from the people of Alabama. They wanted a judge who would respect the moral foundations of the law. Given the Alabama Constitution’s recognition of God and his election as the "Ten Commandments Judge," Moore decided he would make good on his campaign promise by placing a monument of the Ten Commandments in the Alabama Supreme Court building. However debatable Moore’s interpretation of Alabama’s Constitution and his election results may be, one thing is certain: Moore’s actions did not violate any Alabama laws.
The same cannot be said for the actions of Gavin Newsom. Two sections of the California code directly address the definition of marriage. Family Code section 300 says, "Marriage is a personal relation arising out of a civil contract between a man and a woman." Family Code section 308.5 states unequivocally, "Only marriage between a man and a woman is valid or recognized in California." Section 308.5 is the statutory embodiment of Proposition 22, passed as a popular initiative in 2000 by an overwhelming majority (61.4% for, 31.8% against) of California voters. The people of California have spoken on the issue of gay marriage. They were given a choice and decided, quite emphatically, that in California marriage is between a man and a woman only.
Even more, California’s Penal Code section 359 makes it a criminal offense for a public official "authorized to solemnize marriage" to "willfully and knowingly solemnize[] any incestuous or other marriage forbidden by law" (emphasis mine). This prohibition clearly includes same-sex marriages. Violators of section 359 are subject to fines or imprisonment. Thus, in orchestrating the issuance of marriage licenses to gay couples, Mayor Newsom has defied the clearly expressed sentiments of California voters on the gay marriage issue and has violated, and encouraged other public officials to violate, one of the state’s criminal laws.
Mayor Newsom’s defiance is of a much different ilk than that of Judge Moore’s. Newsom is a public official of the state of California who is bound by that state’s Constitution and laws. He has committed an act that directly violates several unambiguous laws of that state and that undermines the expressed will, through proposition 22, of the people of California. Judge Moore, on the other hand, did not act contrary to the Constitution or laws of Alabama. There was clearly no Alabama law or legal precedent, as there is in Newsom’s situation, which prohibited Moore’s actions.
Some would argue that Moore, since he also took an oath to support the United States Constitution, was obviously prohibited by the Establishment Clause from displaying the Ten Commandments. This argument holds no water for two reasons. First, the battle over whether the Ten Commandments can be constitutionally displayed on public property is currently being waged in lower federal courts all across the country. Some courts have upheld such displays against Establishment Clause challenges and some have struck them down. Thus, there was no binding, federal legal precedent Judge Moore had to follow. Second, and more fundamentally, the Supreme Court’s Establishment Clause jurisprudence is so confusing and difficult to apply (hence the confusion in the lower courts on the Ten Commandments issue) that there really is no identifiable "rule of law" to follow. Consider the following: The Supreme Court has upheld the display of a cross on public property, both upheld and struck down Nativity scenes displayed on public property, struck down prayer in public schools, and upheld legislative prayers by chaplains paid with public money. Given the state of the Supreme Court’s Establishment Clause jurisprudence, Moore had every reason to believe his action was not proscribed by the First Amendment.
Beyond all this, Judge Moore’s defiance was aimed at a court order that emanated from a single judicial officer of the federal judiciary. Newsom, by contrast, has flouted not the will of a single judge, but the popular will of the people of his state. Neither man’s actions should be condoned. Both were wrong to defy these legitimate sources of legal authority. But surely Newsom’s defiance is more egregious than Moore’s. Surely defying the will of a majority of California voters deserves more contempt from our society than the defiance of a single judge’s court order. Newsom has absolutely no legal justification for his actions. California law clearly speaks on the issue of gay marriage. It is absolutely prohibited. Newsom, as an official bound by California laws, has a duty to enforce them, not to undermine them. Moore, on the other hand, had a legal justification for his actions. Not until a federal judge stepped in and declared his act unconstitutional was he outside of the law. And, as noted above, whether the federal district judge was correct in ordering the removal of the Ten Commandments is an issue yet to be definitively resolved by the courts.
Unfortunately, the distinctions between the actions of Gavin Newsom and Roy Moore are lost on the national media. In its solicitous coverage of Mayor Newsom’s actions, the media have again displayed their institutional bias against conservative Christianity and in favor of social liberalism. As we all remember, Judge Moore’s actions were depicted as those of a narrow-minded, religious zealot who at best had anachronistic views about the relationship between Church and State and at worst was trying to force Christianity upon unwitting Alabamans. Newsom, on the other hand, is portrayed as a courageous defender of downtrodden homosexuals who are unfairly excluded from the institution of marriage. Tragically, if one were to look simply at the national media’s coverage of these two events, one would conclude that Judge Moore acted reprehensibly, while Mayor Newsom is acting nobly. This is an unfortunate distortion of reality. The truth is that Judge Moore’s disregard for a questionable ruling by a single, federal district court judge pales in comparison to Mayor Newsom’s blatant disregard for the clearly established law of California.
