Declaring "we are not leaving this fight," an attorney who defended California’s Proposition 8 Law banning gay marriage, tells Newsmax TV that Wednesday's Supreme Court ruling did nothing to strike down the controversial measure.
"There was no knock-out punch. There was no finding as a right to so-called same-sex marriage," asserted Joe Infranco, senior counsel of the Alliance Defending Freedom, appearing on Newsmax TV's "The Steve Malzberg Show."
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"There was simply a finding that there was no standing, but when they invalidated — when they vacated the Ninth Circuit’s decision — that leaves Proposition 8 with technically . . . no federal appellate court decision on record."
While some proponents of gay marriage have been quick to view the high court ruling as favorable — including California Gov. Jerry Brown who said he plans to order the issuance of same-sex marriage certificates in the next 30 days — Infranco cautioned gay marriage activists against being too hasty with their celebrations.
"The sort of rush to judgment now and Gov. Brown announcing he’s going to start ordering clerks to issue licenses within 30 days is way premature," Infranco insisted. "There’s a lot of lawyering left in this case."
With the appellate decision being set aside, that leaves only the ruling by a single federal judge — U.S. District Court Judge Vaughn Walker — which is insufficient under the California state Constitution to overturn a law approved by the electorate, according to Infranco.
Walker, who ruled that the 2008 law violated the due process and equal protection clauses of the U.S. Constitution, issued an injunction against enforcing Proposition 8 and a stay pending appeal.
"California law says that a proposition, a voter-passed initiative, cannot be voided by a trial-level judge. It has to be an appellate court or higher and of course the Supreme Court did not rule on the merits of Proposition 8," said Infranco, who declined to discuss the specific legal strategy that will be employed.
"I'll just say that we’re evaluating our options in litigation," he said. "We're going to slow up the train, and yes we will be back in court.
"The options will probably be in state court but there are a number of people who will be affected by this — clerks perhaps ordered to issue the licenses and others," he said. "And they’ll have a different type of harm and therefore a basis for standing beyond what the proponents of the initiative had in federal court."
Infranco said that the Supreme Court ruling was based on the question of legal standing, meaning that a particular person or group suffered a legal harm that is recognized by a court.
"In saying that they had no standing, five members of the court in a 5:4 decision, were saying, basically, you don’t have that much additional, unique harm above the average voter," he said.
Infranco also warned that a decision by Brown to issue marriage certificates to same-sex couples could be construed as a legal harm to government workers, who would be put in the awkward position of deciding whether to enforce the order.
"All of a sudden here's a clerk in a county who gets an order from the governor. And the order says you must start immediately issuing licenses to same-sex couples," Infranco said. "And that clerk does not want to do that. That clerk says 'wait a minute; Proposition 8 has not been invalidated by an appeals court.' The clerk may also say 'I have personal or moral or religious bases against this.' There's a number of things that can come up."
Infranco said that "essentially, anyone in the mechanics of state government," who is compelled to take part in the issuance of same-sex marriage certificates, may be deemed to have suffered an individual harm as a result.
He was also critical of the Supreme Court’s apparent inconsistency with respect to the Proposition 8 ruling and the court's decision to strike down the federal Defense of Marriage Act, which paves the way for married gay men and women to seek federal benefits.
"There positively was an inconsistency. I will say this: The Roberts' Supreme Court generally looks to limit standing," according to Infranco. "Their overall philosophical inclination is they want to make it a little tougher to get into the federal court. So, in that sense, it's somewhat consistent. But there is clearly an inconsistency between the two decisions."
The bottom line of Wednesday's Supreme Court rulings is still unclear for proponents of gay marriage in California.
"It's 10 years since the highest court in Massachusetts ordered same-sex marriage for the first time in the country,” observed Infranco. “Justices noted in oral argument that it's newer than the Internet. And our point is, my goodness, you don’t undertake such a fundamental societal change that can have so much impact without really being clear what does the social science evidence say."
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