Quote:
Originally posted by Mmmm, Burger (C.J.)
If we do, why? I think it's because of why I said. If Newsom looked at the state constitution, or the federal one, and had a credible basis for saying the 3d amendment compelled him to issue such licenses, and did so, I would not have a problem with it. So long as he suspended his implementation/grant of the licenses until the issue was resolved. But why would I require the issue to be resolved first there, but not here? For the reasons I said above--assault weapons cause immediate, tangible harm, whereas a marriage license's grant causes harm (if any) that is neither immediate nor tangible. The worst I can imagine it doing is that some folks will have to pay slightly higher premiums on insurance or taxes for benefits that are claimed, and I seriously doubt that any payments to a new spouse will actually go out before the resolution of this issu, and certainly not without a disclaimer that the payor is entitled to recoupment in the event the marriage is voided by court decision.
(ETA) I don't think it's that radical an idea. It's not much different from the standard for a preliminary injunction--balance of harms. You'd enjoin the non-enforcement of a weapons ban, but maybe not on marriages, because no one's getting hurt in the interim.
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What immediate harm is caused by an assault weapon? It does not fire itself and may not even be fired at all. The real harm I see in both cases is that harm to the will of the voters. If you consider the will of the voters to be fundamentally unfair, it should be redressed in the courts. If the courts do not provide proper redress, then, perhaps, at that stage it is fair to test the strenght of the system and engage in the more radical idea of public officals actively breaking the law.
