By Lisa Keen
The attorney for a gay couple fighting for the rights of same-sex couples to marry brushed off the significance of a court order Monday dismissing their case. He says the dismissal is "just a technicality" and vowed to resubmit their lawsuit in the near future.
But the hobbled lawsuit of Smelt v. U.S. – which gay legal activists have criticized as poorly conceived – has taken an even more difficult route in recent weeks, adding on a political pursuit to divide California into two states.
U.S. District Court Judge David Carter of the Central District of California issued an order Monday, Aug. 24, granting the U.S. Department of Justice request that Smelt be dismissed.
The case is brought by attorney Richard C. Gilbert on behalf of Orange County couple Arthur Smelt and Christopher Hammer. Smelt and Hammer obtained a domestic partnership registration in California in 2000 and a marriage license in July 2008. A state court ruled that marriage licenses issued to same-sex couples before voters approved Proposition 8 in November 2008, banning recognition of gay marriages, would still be valid, but the couple says they are still harmed by the fact that the federal government and other states refuse to recognize their marriage.
Their lawsuit asks the court to require "all necessary acts" be taken by "the entire nation of the United States of America, all of its territories and jurisdictions" to eliminate "any distinction in the law" that results in inequality for the plaintiff couple. That, of course, includes striking down the federal Defense of Marriage Act.
Gilbert filed the case in state court and, in a fairly routine strategic move, the DOJ asked the federal court to take the case. But Judge Carter said there was a "technical issue relating to jurisdiction" over the issues in the lawsuit that required him to dismiss the lawsuit as submitted.
Attorney Gilbert said the dismissal was "not unexpected" and "not a problem." He said he would resubmit the lawsuit to the federal court in "a few days."
"We are not taking 'no' for an answer," said Gilbert.
But while, legally, the case is seeking to secure equal rights for same-sex couples in marriage licensing, he said, politically, it's seeking to promote an idea to divide California into two states.
"We're using this case as a platform to fight in the political arena," said Gilbert. "The voters have spoken in California … and we have a division in the state." The northern half, he said, supports equal marriage rights; the southern half does not.
Gilbert acknowledges the idea of using the case to push for breaking California into two separate states is "taking the struggle a little more militant." But he's serious and the tactic is certain to generate even more publicity for the legal battle.
The Smelt v. U.S. lawsuit has already been the subject of enormous media and community attention but, previously, the publicity was generated by the Obama administration's position in the case.
In June, in its first legal brief to a federal court on a same-sex marriage case, the Obama Justice Department vigorously defended DOMA, even though President Obama had repeatedly stated he believed the law should be repealed. After the LGBT community expressed a great deal of anger over that stance, the DOJ softened its opposition to Smelt considerably this month. Although it continued to ask for dismissal of the case – and continued to defend DOMA – it stated explicitly that the administration "does not support DOMA as a matter of policy, believes that it is discriminatory and supports its repeal."
Meanwhile, other lawsuits challenging DOMA are inching their way through the federal courts. In the U.S. District Court for Northern California, a federal judge on Aug. 19 took two important actions in the high profile case led by conservative attorney Ted Olson and liberal David Boies. Judge Vaughn Walker ruled that several gay groups could not participate in the lawsuit – Perry v. Schwarzenegger – as "intervenors." The case is expected to lay down an extensive record for the federal courts concerning such critical matters as whether LGBT are discriminated against and whether they are harmed by the ban on marriage and benefits thereof.
"Gay rights litigation is like other specialized legal fields in which particularized knowledge together with strong advocacy skills makes for a potent effort," said Jenny Pizer, head of the Marriage Project of Lambda Legal Defense and Education Fund. "We all passionately desire to see Prop. 8 struck down as the constitutional dreck that it obviously is. Combining forces (with the Olson-Boies legal team) would make that much-needed result that much more likely."
The Olson-Boies team opposed the request by gay groups to participate as intervenors, saying their participation would slow down litigation of the case and questioning their sincerity in wanting to help. The gay groups – including Lambda, the National Center for Lesbian Rights, and others – had issued a statement when the Perry case was filed suggesting they believed the case was "premature" and potentially risky.
Judge Walker's decision means the gay groups will now be limited to filing friend-of-the-court briefs in the case.
Walker also set Jan. 11 as the starting date for the trial.
