March 15, 2004
The Folly Of Kelly Clark And Hardy Myers
What They Both Know About The County's Legal Argument
During arguments in Defense of Marriage Coalition v. Multnomah County plaintiff's attorney Kelly Clark has fastidiously tried to avoid any mention of the clear constitutional conflict between Oregon's statutory defintion of marriage and Oregon's constitutional prohibition of discriminatory granting of privileges, although he has made public comments to the effect that the constitutional threat to his clients' case is very real.
Earlier today, during some Web research into the Cooper v. Eugene School District No. 41 case mentioned by County Commissioner Serena Cruz in her statement regarding the resumption of the County's policy to issue same-sex marriage licenses, we came across another case with a bizarre relevance to our current situation.
But first, let's take a look at the elements of the Cooper v. Eugene School District No. 41 decision which Commissioner Cruz cites:
Long familiarity with the institution of judicial review sometimes leads to the misconception that constitutional law is exclusively a matter for the courts. To the contrary, when a court sets aside government action on constitutional grounds, it necessarily holds that legislators or officials attentive to a proper understanding of the constitution would or should have acted differently.
...
"Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath or affirmation to support the Constitution of the United States and of this State, and also and oath of office." As these provisions show, the constitution does not contemplate that legislators and officials will act as they think best and leave the constitutionality of their acts to the courts.
So what's the other case to which we referred? That case is Employment Division v. Rogue Valley Youth for Christ from the late 1980s, which involved questions of the taxation of religious organizations.
In its writings for that case, the Oregon Supreme Court wrote that an agency "[m]ust administer the law in accordance with constitutional principles, and must enforce its statutory obligations. If a statute tells an agency to do something that a constitution forbids, the agency should not do it." In making this argument, the Court in fact was citing Cooper v. Eugene School District No. 41.
You might notice that this rather nicely echoes the position of Multnomah County when it comes to the obvious conflict between the statutory definition of marriage and the constitutional prohibition against discriminatory privilege.
But why are we bringing Employment Division v. Rogue Valley Youth for Christ into the mix, when its relevance is limited to a reference to the Cooper v. Eugene School District No. 41 case already cited by Commissioner Cruz?
Well, as it turns out, there was an amicus curiae (friend of the court) brief filed in Employment Division v. Rogue Valley Youth for Christ by an attorney with which readers might be very familiar.
Kelly Clark.
Perhaps this would explain why Clark shies away from courtroom arguments in Defense of Marriage Coalition v. Multnomah County of the constitutional issues at the heart of the County's actions: This entire time, he has had direct knowledge, via Employment Division v. Rogue Valley Youth for Christ, of Cooper v. Eugene School District No. 41.
In other words, he's had direct and personal knowledge that there is legal precedent for the County's position that when faced with a conflict between statutory law and constitutional law, it must choose the latter. He knows the County's position is legally sound.
Actually, there's also a second attorney involved in our current situation who filed an amicus curiae brief in Employment Division v. Rogue Valley Youth for Christ: Hardy Myers, now the Attorney General of the state of Oregon.
Yes, the same Hardy Myers who has been encouraging Multnomah County to abide by statutory law despite its clear conflict with constitutional law. He, too, certainly must know that Cooper v. Eugene School District No. 41 gives the County precisely the legal cover it has been arguing it has.
How some attorneys manage to navigate a nearly-perpetual state of cognitive dissonance is something we likely will never quite understand.
Comments (13)
myrln on 15 Mar 2004
In keeping with the religious theme, we should note the road to hell is paved with lawyers.
The One True b!X on 15 Mar 2004
Well, to be fair now, the County Attorney who launched the County into the frontlines is also a lawyer. As are the attorneys who have issued opinions concurring with her analysis.
Torridjoe on 15 Mar 2004
Wow. Nice freakin' work.
Steve on 15 Mar 2004
Excellent find. I look forward to seeing the expression on Clark's face when he is asked about this directly.
The One True b!X on 15 Mar 2004
For what it's worth, there's an almost-discussion happening on this Worldwide Pablo item, although I'm still awaiting some actual specific argument, instead of just short declaratory disagreements.
Worldwide Pablo on 16 Mar 2004
The portion you quote from Cooper occurs in the discussion of the case and not in the findings. It's interesting, and tells us a lot how how the always interesting and complex Justice Linde is thinking. But it's a stretch to pronounce it as the "silver bullet" that proves the county's case. It's illustrative at best.
WWP would be interested in the opinions of any ACTUAL lawyers who might be dropping in on this conversation.
The matter about Clark is truly amusing, though. Nice find, b!X.
The One True b!X on 16 Mar 2004
The portion you quote from Cooper occurs in the discussion of the case and not in the findings.
How does that interact (and I'm actually asking here, not dismissing this) with the fact that the court in Employment Division actually cites the Cooper court's point about having to follow constitutional law even if it conflicts with statutory law?
Would the court itself cite something that's merely a discussion and not a finding if it didn't have legal bearing?
brett on 16 Mar 2004
Great item, and I think you're dead on. But I didn't see Myers' opinion in such negative terms. There aren't a lot of substantive differences between Myers' position and the County Counsel's. It's just a matter of conservatism; the County Counsel says make the change now, and Myers says take it slow. Myers qualified his constitutional analysis to the point that he can say (and rightfully so) that the situation isn't crystal clear w/r/t the constitutionality of not allowing gay marriage. His opinion exhaustively details the jurisprudence in this area, and the fact is that we can say it's *likely* that the Supreme Court will agree with Multnomah County, but it's not certain.
Oh, and I'm pretending I didn't read the comments toward the top there.
The One True b!X on 16 Mar 2004
Myers' opinion itself certainly tends heavily to support the County Attorney's analysis. It's his "but stop issuing licenses" suggestion, which was echoed by the Governor, that I find ironic given Employment Division.
brett on 16 Mar 2004
Chalk it up to the difference between a lawyer's advocate role, which Myers was playing when he filed the amicus brief, and the role of the AG, which is more conciliatory, much more political, and requires more evenhandedness.
> How some attorneys manage to navigate a nearly-perpetual state of cognitive dissonance is something we likely will never quite understand.
Occupational hazard.
k on 16 Mar 2004
nice work. thanks.
Worldwide Pablo on 16 Mar 2004
b!X, WWP is not ignoring your question, which is a good one. Time prevents addressing it right now, as WWP is on his out out the door for, yes, a date! [WWP actually has an occasional "life."]
It's a long, but not particularly complicated, answer. If any lawyers drop here before WWP returns, be sure to insert a description of dicta and how it relates to these cases.
Otherwise, WWP will endeavor to produce an answer post-date. [And yes, that means you can break all the news you like will WWP is away from his computer...]
The One True b!X on 16 Mar 2004
I can't break any news, I have to go buy toilet paper. Yes, we also occasionally have a "life" too.