Lessig: Gay Marriage in SF: Larry Lessig offers an interesting analysis about the San Francisco mayor's decision to issue marriage licenses to gay and lesbian couples on the theory that the state law prohibiting the action is unconstitutional. Lessig's argument -- which I think is well-supported -- is that the executive branch has just as much authority as the legislative or judicial to declare a particular law (or court ruling) inconsistent with the state constitution.

Compare Dan Gillmor's argument that this amounts to nothing more than "governmental lawbreaking" because it's the province of the courts and the legislature, not the executive, to rule on constitutionality. Gillmor responds to Prof. Lessig by raising the point, which Lessig concedes, whether a local-level executive has the authority to effectively overrule a higher-level governmental body.)

Another interesting question is how the SF action should relate to the Good Faith & Credit Clause of the U.S. Constitution. Implicitly, if two gay people are married in California, and then they go to Nevada, shouldn't Nevada have to honor the marriage on the face of the license, without looking behind it to see whether the marriage would be legitimate under its own laws? Does it matter if only San Francisco, or only the county, recognizes SF gay marriages, and the rest of the state ignores them? If the state passes a law declaring all marriages authorized by the City of San Francisco invalid?

UPDATE: Lessig writes: "So I said my analysis depended upon facts about CA law that I didn’t know. My wife reports that NPR reports that there is a law in California that instructs state officials to obey laws until properly challenged in court. If that’s correct, that, in my view, changes the analysis completely: Except in the most extreme cases, such a law would be a sensible way to order disputes about CA law. Whether or not the marriage law is constitutional, I should think that law would be constitutional. And if that law is constitutional, then an official who disobeyed it would be — as Dan Gillmor said originally — violating the law."