In the past few weeks, county clerks in New Mexico and Pennsylvania have announced they will issue marriage licenses to same-sex couples despite lacking any legal authority to do so. The idea, of course, is to set off a media event. Despite lawsuits attempting to stop such action in Pennsylvania, and a planned lawsuit in New Mexico, such marriages continue.
More recently, two New Mexico judges have tried to get in on the action by ordering clerks in two more counties to offer marriage licenses. The County Clerks have complied rather than defend the law.
In both states, the attorneys general had previously expressed unwillingness to defend the state marriage laws against legal challenges. In fact, in the rush of litigation following the U.S. Supreme Court decision striking down the federal Defense of Marriage Act, it’s been common for attorneys general to decide not to do their job. There are doubts in a third state — North Carolina — about the quality of the attorney general’s defense of their marriage law.
This is not entirely surprising given the Supreme Court decision in the companion marriage case from California. Whatever the legal merits of the Court’s refusal to allow a private party to defend the law, the effect of the result was to reward the California officials for refusing to defend Prop 8. The goal they had failed to achieve through the normal political process — defeating Prop 8 at the ballot–was easy to meet by passively allowing the courts to strike it down in the absence of a defense.
So, the take away message for politically correct public officials bristling with assumed moral superiority is that lawlessness pays. Will it be confined to the marriage debate? We’ll see.