Chuck Cooper, lead attorney for the defense of Proposition 8, will surely make a big deal out of the sloppy reasoning of Judge Walker’s opinion. He will certainly point out that there are numerous cases at the state and federal level, which are precedents for the same sex marriage issue. These cases hold that there is no federal right to same sex marriage.
A good lawyerly practice is to list all the relevant precedents and distinguish them from your own case. In other words, Olson and Boies should have explained why those cases are different from the Prop 8 case, so that those existing should be set aside to make way for the new finding that the US Constitution requires same sex marriage.
Olson and Boies didn’t do that. Judge Walker didn’t do that. They didn’t even mention Baker v Nelson, Adams v Howerton and a host of state and district court rulings around the country.
As Cooper said in his motion to appeal, “Given that the district court did not cite a single case that had addressed these issues, one might think the court was deciding issues of first impression on a blank slate. Nothing could be further from the truth…. The sheer weight of authority opposed to the district court’s decisions further confirms that the decision will likely be reversed on appeal.”