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!

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.