Federal Judge Dismisses DOMA Case

Smelt Vs. United States, the case that caused all of the DOJ-DOMA brouhaha earlier this year, has been dismissed by a federal judge on the grounds that the litigants had failed to identify any personal harm they had suffered under the institution of the Defense of Marriage Act.

Assistant Atty. Gen. Tony West, in his brief filed before U.S. District Judge David O. Carter, agreed with Smelt and Hammer that the Defense of Marriage Act is discriminatory and should be repealed. But West noted that he was obliged to defend the law until Congress moves to repeal or amend it. He urged the court to dismiss the men's suit on grounds that their allegations "fail to state a claim upon which relief can be granted." Carter agreed, explaining in his seven-page decision that the absence of "an injury in fact" meant the court lacked jurisdiction to consider the broader constitutional questions. Smelt and Hammer had also filed suit in California superior court. That action was dismissed earlier this year on similar grounds, as their marriage is legal in California.

The Obama administration's handling of the Smelt case drew the ire of LGBT activists back in June when the Department of Justice requested its dismissal in an outrageous brief that alluded to pedophilia and incest. Earlier this month the DOJ struck a more conciliatory tone, saying in a second filing that while the government felt that DOMA was discriminatory, they were obligated to defend it as long as it was law. But shortly thereafter our collective flabbers were thoroughly gasted to learn that the Smelt attorneys were really intending to somehow use the case to split California into two separate states.

Goodbye to Smelt and goodbye to its nutjob attorneys. Onward to the Olson/Boies case and to the work of overturning DOMA legislatively.

Using Gay Marriage To Split California

Split California literally, that is. Duncan Osborne at Gay City News reports that the lawyers backing the litigants in the Smelt case, the one that has caused all the DOJ-DOMA furor, have a master plan other than marriage equality.

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.

Osborne reports that Freedom To Marry's Evan Wolfson is not pleased. Wolfson says, "I think it is reckless and intolerable to risk bad court rulings through premature and poorly executed litigation putting gay people’s freedom to marry and legal rights at risk for other dubious agendas."

Read Duncan Osborne's entire article.