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Liberty Counsel Needs Refresher Law Class

Timothy Kincaid

June 6th, 2008

staver.jpg I’m not an attorney, nor do I play one on the internet. However, even I can see through the latest claim by the Liberty Counsel.

Liberty is the ugly stepchild of the anti-gay legal badgering movement. Alliance Defense Fund gets all the big headline-grabbing cases, leaving the offshoot of Jerry Falwell’s Liberty University playing second fiddle. And perhaps this latest play by Mat Staver, Liberty’s founder and spokesman, illustrates just why.

In a fundraising plea disguised as an “alert”, Staver responds to the California Supreme Court’s decision to deny a stay or reconsideration of their decision.

Today, the California Supreme Court denied the Petition for Steay and for Rehearing in the California marriage cases.

The 4-3 decision was split along the same lines as the original May 15 ruling with Chief Justice George and Justices Kennard, Werdegar and Moreno in the majority. Justices Baxter, Chin and Corrigan dissented.

But a less casual look at the ruling suggests that Staver is either careless in his reading or is being deliberately deceptive.

Though Staver rails at “a handful of judges”, it appears to my reading that the stay had no support at all. While three judges were of the opinion that rehearing should be granted, there is nothing in the ruling that tells me that the decision to deny stay was anything less than unanimous.

While that declaration of Staver can be forgiven as perhaps inattentiveness, what he says next seems to be downright ridiculous.

The cases now will return to the California Court of Appeal for the Supreme Court’s order to be implemented. Liberty Counsel is considering filing a petition with Court of Appeal requesting a stay pending the outcome of the November vote on the state marriage amendment. The Court of Appeal panel previously upheld the state’s marriage laws.

Staver seems to be implying that the Court of Appeals can override the decision of the California Supreme Court. I find it difficult to fathom that a dean of a law school – even one catering solely to conservative religious adherents – can suggest such a thing.

The role of the Court of Appeals at this time is not a contemplative or judicial one. It is an administrative role to facilitate the decision of the state’s Supreme Court. The state’s highest court has stated that its decision will become final on June 16th at 5:00 p.m. and no inferior court has the authority to use administrative delaying tactics to thwart its will.

Should the Court of Appeals fail in its duties – a highly unlikely possibility – County Clerks would simply go ahead in issuing licenses and recording marriages as directed by the decision of the highest court.

If Staver thinks this will be a successful tactic, he needs to take some refresher courses in constitutional law. If, on the other hand, he is simply creating artificial hype so as to give him a reason to beg his donors for money, he needs to retake a course in ethics.

Comments

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GDad
June 6th, 2008 | LINK

I can’t really speak to the guy’s competence, but I think it’s fair to say that the need for an ethics course is a no-brainer.

Regan DuCasse
June 6th, 2008 | LINK

You GO Tim! I agree and have to wonder myself at the legal competence of Liberty or ADF.

I got on the phone with one of ADF’s attorneys directly. We were arguing pretty much on legal terms when he decided to ask me about studying law.
Which I haven’t, formally.
Well that ended our conversation.
Which up until then, I knew I’d been effective enough to frustrate him and he was losing face.
So Tim, your intelligence and clear understanding of the law and how it was applied is correct, but the folks at Liberty or ADF would really hate it if you showed them up on such facts.

Chet Lemon
June 6th, 2008 | LINK

“it appears to my reading that the stay had no support at all. While three judges were of the opinion that rehearing should be granted, there is nothing in the ruling that tells me that the decision to deny stay was anything less than unanimous.”

The request for stay was within the petition for rehearing. There was no independent request for a stay. I think the reference to the stay was included in the order for clarity purposes, so no breakdown of justices was required. Thus, the decision was 4-3.

Michael Hamar
June 8th, 2008 | LINK

Personally, I suspect that Staver is disingenuous. Most of the Christianist legal “firms” strike me that way. However, some of his mis-statements may stem from incompetence as well. Liberty Counsel represented the appellant in the Virginia/Vermint child custody case decided by the Virginia Supreme Court last week and as my review discusses, Liberty’s counsel was apparently not all that good. My blog article is here: http://michael-in-norfolk.blogspot.com/2008/06/miller-jenkins-decision-update.html

P.S. I am a Virginia attorney and even as a non-litigator I would have known to properly raise issues and file my appeal timely.

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