Civil disobedience adds to battle over same-sex marriage

NEW YORK -- In the last month, local officials in six states from New York to Oregon have opened their doors to lines of same-sex couples hoping to be married, providing a rare instance in the nation's history of individuals using the power of their government offices to commit acts of disobedience and fuel the engine of social change.

Across the country, clerks, mayors, and city and county officials have become unlikely advocates in the heated debate over same-sex marriages, and the impetus for courts in their respective states to begin studying whether these public officials had the power to authorize the unions. Behind the unusual protests, according to political analysts and the public officials themselves, are politicians studied in the civil rights movement and empowered not by political machinery but by their personal history of activism.

"Laws are made to be broken at times to find out if they are really legit or not," said Jim Bruno, the deputy mayor of Asbury Park, N.J., who last week became the latest official thrust in the national spotlight when he performed a marriage of two men. The attorney general threatened Bruno and a city clerk with prosecution and ordered the city to temporarily stop issuing licenses to gay couples.

Last Thursday, the California Supreme Court halted same-sex marriages in San Francisco while it determined if the mayor had the power to wed the couples.

In upstate New York, Mayor Jason West of New Paltz faces multiple charges for performing 25 same-sex marriages. His actions led the attorney general to declare state law prohibits gays and lesbians from marrying, but he added that New York could honor marriages legally performed elsewhere.

"I have no regrets whatsoever," said West, 26. "People like me are accidentally thrust in the spotlight not because we are some kind of hero, but because there have been thousands of people who have been working for decades on these issues."

According to West, he is exercising his constitutional duty to protect the rights of all Americans. West, like others, said he was prompted by the Supreme Judicial Court's Nov. 18 ruling that same-sex marriage must be allowed under the Massachusetts Constitution. The ruling set in motion a chain of events that continues to roil the political, social, and cultural waters of the country. Last week, Massachusetts legislators came closer to approving a constitutional amendment that would prevent same-sex couples from marrying but allow civil unions.

Still, legal specialists and gay rights advocates say public officials may be influenced by more than just the ruling. They say that mayors like West and Gavin Newsom of San Francisco, who reside in areas largely sympathetic to same-sex unions, may be more willing to take a public stand supporting the nuptials as recent polls indicate a growing support for some form of civil unions.

"We commend the best intentions and actions of all who support marriage equality, but these folks are in the business of getting elected and reelected and aspiring to higher office," said David Tseng, executive director of Parents, Families and Friends of Lesbian and Gays. "It's the right thing to do," he said. "It's visionary, and it also reflects astute political judgment."

Jack Beermann, professor of law at Boston University, agrees that supporting gay marriages can be a smart move for certain politicians, but added it still is unusual for government officials to defy the law to influence social change.

"There is a respectable view that government officials should not engage in civil disobedience, that they should resign if they feel that the law is so unjust that they shouldn't follow it," said Beermann. "But I think the motivation of some of these officials is that they also take an oath to uphold the Constitution, and the Constitution is the supreme law of the land. They feel . . . their higher duty is to the Constitution."

"If you want to think of how change happens," said John D'Emilio, professor of history and director of the gender and women's studies program at the University of Illinois at Chicago, "it's often because individuals try to use the legitimate political and legal mechanisms available to them. And when those are closed off, the dam bursts and people look for other methods." But critics such as the Rev. Duane Motley, head of New Yorkers for Constitutional Freedoms, a Christian-based coalition, insist public officials should not violate their oath to uphold the law for any reason.

"We feel anyone else in office who violates their oath should resign," said Motley, who is calling for the removal of West. "There is a way to change the laws of the state, and that is through the legislative process, not through violation of the law."

Some public officials said they believe it is their duty to correct past injustices.

Lisa Naito, a Multnomah County commissioner in Oregon, was in a majority of commissioners who voted to approve the issuance of marriage licenses to same-sex couples. As for her reasons, she cited the experience of her former father-in-law, a Japanese-American who "married a Caucasian woman from Canada. At the time they married and moved here -- 1951 -- our state had only just repealed its law against interracial marriage. And we were one of the first states to do that. The parallels are so clear."

City Councilwoman Margarita Lopez of New York said some of the public officials involved in the debate over same-sex marriages were activists long before they were politicians. Lopez, who is seeking City Council appointment as a marriage officer, is a longtime activist on race and gender issues.

John Shields, the mayor of Nyack, N.Y., was a civil rights activist. On Friday, Shields, along with 19 others seeking to legalize same-sex marriages, sued the state and a town clerk for denying him a chance to marry his partner last week. West is a member of the Green Party, which draws its support from environmentalists and other liberal activists.

"In New York State, for example, things have changed," said Lopez. "We have in the City Council a majority of the councilors who are activists. They got there by being activists. I was not a candidate of the Democratic machines. Secondly, you also have a younger generation of people in those positions that understand the issue from a very different point of view, and those young people have been very influenced by the history of the civil rights."

It was Newsom, the 36-year-old mayor of San Francisco, who moved local officials to defiance when he began marrying gay couples Feb. 12. Newsom, a restaurateur, has told reporters that he was attending Bush's State of the Union address in January when the president criticized the SJC ruling. That compelled him, Newsom said, to do something public to counter the speech.

While West was inspired by actions public officials took in New Mexico, San Francisco, and the SJC decision in Massachusetts, Shields said he was inspired by West, who vows he will continue to marry gay couples.

"The commonality, I think, is some of us are very concerned about social justice, whether it's racism, sexism, or heterosexism," said Shields. "We traveled to Nyack, said here is this young mayor in upstate New York fighting for a cause and -- as my partner said -- he is not even part of the club," he said, referring to West's being heterosexual. "We said, `He shouldn't be out there alone.' "

Mark Feeney of the Globe staff contributed to this report.