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.
Federal judges are unwilling to risk the heat that might come with a ruling in favor of gay marriage, Gilbert said.
“We think this is a very political case and because there are politics, it’s a hot potato,” he said. “You wind up with justices who are one step away from the United States Supreme Court... Legally, the courts should rule in our favor, but they don’t because that’s not good for your career.”
Absent a federal ruling in favor of same-sex marriage, same-sex marriage licenses currently granted by six states are of little value because, as happened in California last year, that right can be taken away, Gilbert said.
“They can revoke it tomorrow,” he said. “You can’t do that with a man and a woman. No state can pass a law saying a man and woman are not married. So all of these same-gender marriage licenses, they are no different than a fishing license... It’s really a fraud, it’s fraud to call it a marriage.”
The Obama Justice Department issued a brief seeking to dismiss the case in June that used arguments that angered many in the community, with the gay blogosphere expressing particular outrage. Another federal brief, issued on August 17, attacked Smelt’s case on procedural grounds in moving to dismiss it.
Generally, gay groups, which have won gay marriage fights in six states, avoid criticizing suits like the Smelt case. When they do object, they are usually chastised by bloggers and community activists who charge that the groups are seeking to preserve their standing in the community.
This latest wrinkle drew some fire.
“His clients absolutely do have a right to get married and they were right to be upset that they are not treated equally,” said Evan Wolfson, executive director of Freedom to Marry, a marriage equality group. “The question is how to fix that, and reckless roll-the-dice schemes and no or poor consultation are not the way to create the freedom to marry and justice that we all want.”
Gilbert has generally not consulted with the legal groups that won earlier marriage fights.
Wolfson was not happy to hear that the Smelt case was now a stepping-stone to a political effort.
“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,” he said.
So er.. I'm for gay rights, but this is ridiculous.