Monday, July 1, 2013

Heritage Foundation: ' California Marriage Case: It’s Not Over Yet'

Oh my!

Elizabeth Slattery - Heritage Foundation
Elizabeth Slattery (nee Garvey) is a senior legal analyst for the Heritage Foundation.  She married Brian on September 1, 2012     Something that she would prefer not to allow gay people to do. Today she writes:
So what happens next? The short answer is more litigation.
Ms.Garvey (who doesn't seem to have ever actually practiced law) first bases her opinion on an article written by John "Torture Memo" Yoo. According to Mr. Yoo:
... the government never show[ed] up to defend the statute.… [T]he plaintiffs win, in essence, a default judgment.” If this is correct, then the district court’s order does not apply statewide.
[...]
So Brown comes out the big winner. He can delay or even nullify an initiative enacted by the people of California simply by refusing to defend it in court
They always leave out the good part! Others could have defended Prop 8 if they could make a convincing case that they would be injured by its nullification. Who is harmed, how and why? Back at trial, lead counsel, Mr. Cooper, answered Judge Walker's question with "I don't know."

Ms. Slattery continues:
... the California Constitution may prohibit this action. Article III, Section 3.5 of the California Constitution provides that state agencies may not “refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional.”
Were that really the case, why did they appeal Judge Walker's decision?  Presumably, the judgment of a federal court trumps the state's constitution.

They can try but it is not going to end well which is one reason that Cooper and Kirk (lead counsel) isn't waving any sabers. A few years from now the matter would end up in federal court where Prop 8 supporters do not have standing. They lose by default. Meanwhile, same-sex marriages would continue without interruption. According to Slattery:
Such a lawsuit would be similar to Crave v. Napolitano
No, it would not (you can Google it). Not even close. In that case, there is no state vs. federal controversy. In this case, "Under the federal supremacy clause, not only must state courts apply federal law where appropriate, but they are subject to review by the federal courts..."

In other words, THIS CASE IS DONE!

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