Smelt litigation strategy: New California, the 51st state

by on August 19, 2009  •  In Marriage, States

UPDATE: This case has been dismissed without prejudice on a procedural technicality, and it will probably be refiled in federal court.

From Gay City News, straight into the you-can't-make-this-up folder:

The attorney representing two gay men who sued in state court and now in federal court in southern California to win the right to marry hopes the case will spawn a political movement that will result in residents there voting by ballot initiative to divide the state in two.

“We’re hoping to use the case in court as a springboard to get a proposition on the ballot that will break up California into two states,” said Richard C. Gilbert, a partner at Gilbert & Marlowe, a law firm with two offices in California. “We think if we can get this proposition on the ballot, we think we’ll win.”

Gilbert said the ideal result would be that all the counties north of Los Angeles would become New California while the southern counties would remain California.

Gilbert likened the circumstances of his clients — Arthur Smelt and Christopher Hammer — to Dredd Scott, who sued for his freedom in the 19th century only to have the US Supreme Court rule in 1857 that no African-American, free or enslaved, could be a US citizen. That decision contributed to the Civil War and Scott was eventually freed.

“We don’t want a civil war,” Gilbert said. “We just want to have civil division in our state between people who are willing to respect the rights of all people and those who are not.” Residents of New California, in his view, would be far more amenable to arguments in favor of marriage equality than those in the southern part of the state.

The couple originally sued in 2004 in state court, where the case was dismissed, but they have continued fighting on procedural grounds into federal court. They are battling to keep the case alive in federal court where, Gilbert said, their chances of prevailing are poor.

“I would expect that we would not succeed in the courtroom, but that we have a much greater chance of success in creating a New California, two separate states, if we can spread the word,” he said. …


One Response to Smelt litigation strategy: New California, the 51st state

  1. Prup (aka Jim Benton) August 19, 2009 at 7:28 PM

    Having read this, perhaps the best thing for the LGBT comunity would be to have the case thrown out on standing and lack of demonstrable harm issues. The thought of this idiot (to quote myself on a comment on another blog “I’m not talking Orly Taitz level weirdness. But if Taitz is the Godiva Special Mixed Nuts Collection (“Every piece wrapped in gold-covered tinfoil”), this guy is at least a Snickers bar.”) being allowed anywhere near the Supreme Court — in fact, imagining him in the same time zone with Antonin Scalia — scares all sorts of natural waste out of me.

    The “New California” idea is as insane as it sounds — a State can not ‘split itself in half’ without permission of Congress — unlikely to be granted, to say the least. Insulting the judges by saying ‘they know the law is on my side but are too politically afraid to say it’ does not get you looked on favorably. The “Dredd” Scott comparison — note to whoever made the mistake, the first name of the plaintiff in Sanford v. Scott was “Dred”; “Dredd” is a character from Marvel Comics played in the movies by Sylvester Stallone — is as insulting as are many pathetic “holocaust” comparisons — Gays have never been able to be bought and sold, and no one has, judicially, declared they were, by birth, incapable of being citizens. And I don’t know if I’d want a lawyert in any case who begins by declaring to a sympathetic paper “Oh, of course, we’re gonna lose.”

    Better lawyers, please!

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