Actually, we need both the Spitzers and the Newsoms.

In most jurisdictions, you can't really challenge a law unless there's a case or controversy, meaning that I can't just walk up to a court and say "this is unconstitutional." You need somebody like Newsom who's willing to put his career, office, and freedom on the line so that you'll have a case in the first place.

Then you need people like Spitzer to enforce the laws, even if he belives them unjust. This combination can prove very, very valuable.

--|PW|--

PW-

I think that you're right in that there is a need for someone to challenge the laws, but I don't believe that the challenger should be an elected official. As this article shows, there are avenues for ordinary citizens to gain standing to mount a challenge.

That is the proper and legal way to address the issue. What West and Newsom did is not and sets a very dangerous precedent.

I gave this some thought ... if I were a mayor who deeply believed in same-sex marriage AND I had a good-faith belief that the state constitution permitted same-sex marriage, I would grant one, and ONLY ONE marriage license to a same-sex couple ... and then I would immediately invite the state attorney general to prosecute me for it.

One same-sex marriage is all that's needed to make a point and create a legitimate "case or controversy." Thousands, IMO, is overkill.

Part of the problem with this form of civil disobedience is that, in order to be effective, it requires the participation of an elected official.
--|PW|--

Now in the cases in NYC, is there a reason why one of the rejected applicants can't sue the city for a violation of the equal protection laws because they were rejected? I would have thought that the rejection of the license was in and of itself enough grounds for someone to have a legitimate case or controversy.

On the one hand, that is a valid cause of action. On the other hand, involving a city official gives a bit more heft to the lawsuit in more than a few ways.

Do you know about persuasive authority? That's when a court looks at other legal decisions that don't necessarily force the court to interpret the law a certain way, but can persuade the court if the precedent is, well, persuasive enough.

If you have a couple of gay people bringing a lawsuit, it's a couple of gay people with their lawyer. However, if the case also involves a city official, that official would presumably have issued an opinion regarding state law.

Suddenly, you have a couple of gay people and a civil servant arguing that gays should be married. The opinion of a city attorney does carry a bit of weight. And so forth.

--|PW|--

OK, I can see the city attorney's opinion carrying some weight, but I don't recall there being any mention of a city attorney's opinion floating around out there in either the San Francisco or New Paltz cases.

Besides, for persuasive authority, we now have Eliot Spitzer's opinion floating around out there and on both a strict legal basis I would put more faith in a State AG than I would a city attorney besides which Spitzer right now probably carries more weight based on his personality than it would have six months ago.

I can certainly see your point though. Having Gavin Newsom on your side in court does help more than have some ambulence-chasing attorney only.