Who needs the California Supreme Court to decide whether Prop 8 violates the State Constitution when you can take the matter all the way up to the feds?
Enter Smelt v. United States of America, a lawsuit we love simply because of that “v. United States of America” part, which we want embroidered on a sofa pillow. (We also want to be able to make “Whoever Smelt It” jokes.) Filed by Arthur Smelt and Christopher Hammer, who married in California during that pre-Prop 8 window of legalization, the suit alleges that banning gay marriage, like, violates our constitutional rights. Of the United States of America!
(Smelt’s case was filed in state court in December, and moved to federal court in March, though has received little press attention.)
Unrelated to the California Supreme Court’s decision on Strauss v. Horton, Smelt’s case asks a federal court to invalidate Prop 8 and order “gender neutral” language in all marriage-related legislation. And while they’re at it, how about repealing all state bans on same-sex marriage as well as the Defense of Marriage Act?
How about we take this to the next level?
Our newsletter is like a refreshing cocktail (or mocktail) of LGBTQ+ entertainment and pop culture, served up with a side of eye-candy.
Summarizing Smelt’s arguments, Gather.com relays:
1. The refusal of California and other states and the federal government to recognize a lawful, same sex marriage results in denial of thousands of rights, protections, and responsibilities that are automatically bestowed on opposite sex couples.
2. The denial of full recognition of same sex marriage in other states denies same sex couples the right to travel and establish residency in other states.
3. DOMA is gender specific and denies recognition of a legal same sex marriage on a federal level.
4. DOMA provides that states do not need to recognize a lawful same sex marriage from another state, therefore restricting rights to same sex couples to specific jurisdictions in contrast to opposite sex couples which have no similiar hindrances.
The full case is available here for those of you who get off on legalese.
Jerrold
Anytime I see the words “get off on legalees.” I am obligated to click the link. Damn you Queerty (also, good job on finding us this.)
kate w.
I do get off on legalese. Thanks. This is mm mm good.
Jon B
Ugh…. we really don’t want this case going anywhere, anytime soon. The Supreme Court very likely has the votes to grant Cert. but not enough to overturn DOMA or institute gay marriage. Kennedy, the only swing vote right now, has a fairly good record when it comes to gay rights, BUT he has explicitly stated that he is not sure where he falls on gay marriage. Sure, it’s been a while since he wrote that into a decision, but I wouldn’t leave it up to chance. I’d want Clarence Thomas or Antonin Scalia replaced by a Democratic appointee before seeing the Federal Courts take up anything having to do with gay rights.
Mickey's mouse
@kate w.: I concur…. This is like a tub of Campbell’s soup!!!!!
Cheesehead
This complaint is really poorly written especially when compared to the well reasoned and argued brief and pleadings in the marriage cases filed by Lambda and GLAD. If and when same-sex marriage goes to the Supreme Court, let’s hope it is not on this record.
John K.
This is a bad idea. This will set back the fight for marriage nation-wide at least 20 years if it loses.
queerunity
i dont see this going far but i hope it does
http://queersunited.blogspot.com
Cam
HRC asked us to sit quietly and not fight for marriage and to let them take care of things for us. They even tried to convince earlier people who filed marriage lawsuits to drop them. They would be working on Enda and legislation like that. Well jump foreward 15 years and they still haven’t been able to pass ENDA, yet all those pushy people are now responsible for us getting marriage rights in several states. As far as I’m concerned this case can go as far as possible. This case heading to the Supreme court will force Congresses hand, let them stand up and be counted so I know who’s opponant to donate money to.
Kevin@BGFH
@Jon B: I totally agree.
@Cam: While I agree that HRC is a damn useless organization, they aren’t the only ones cautioning against an approach in federal court. Every LGBT legal organization cautions against it right now. Wait until there have been more Dem appointees in the federal courts, especially the SCOTUS.
Thom
Compare and contrast; one of my high school english teachers drilled that into my head.?Compare and contrast: Slave rights and gay rights; the contrasts are easy, the comparisons are profound. Slaves could not get legally married either. They could not create and sign contracts, and what is marriage mostly (legally speaking) but a huge contract with thousands of rights and responsibilities. ?Navanethem Pillay, the United Nations High Commissioner for Human Rights spoke there last year saying, “That just like apartheid laws that criminalized sexual relations between different races, laws against homosexuality are increasingly becoming recognized as anachronistic and inconsistent both with international law and with traditional values of dignity, inclusion, and respect for all.”? Apartheid: A system of laws applied to one category of citizens in order to isolate them and keep them from having privileges and opportunities given to all others.? Stop gay apartheid.
The Gay Numbers
Who sits on the court determines outcome. Not what you think the law should be, but what they think the law should be. That in a nutshell is the problem. Scalia, Roberts, Alito and Thomas does not care about the emotions or correct legal construction. They have an idealogical agenda they are pursuing. They just need one more vote, and the precedent for gay rights will be set all because peo want to fantasize that the court is something other than reactionary.
Robert, NYC
Democracy requires minority rights equally as it does majority rule. The minority’s rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority’s rights lose their meaning. In the United States, basic individual liberties are protected through the Bill of Rights, which were drafted by James Madison and adopted in the form of the first 10 amendments to the Constitution. These enumerate the rights that may not be violated by the government, safeguarding—in theory, at least—the rights of any minority against majority tyranny. Today, these rights are considered the essential element of any liberal democracy. This is the argument we need to use. If the constitution recognizes this, then Proposition 8 is illegal as are all propositions or intiatives.
Jack
@Thom: Using this argument is the completely pointless. First off blacks weren’t at all allowed to get married not even to someone of the opposite sex. You on the other hand can. And when I say you I refer to all homosexuals. And comparing yourselves to slaves? Come on. Don’t make yourself such a martyr. That is not going to make anybody feel sorry for you.
Robert, NYC
@Jack:
Jack, depends in which state Thom lives. Not every gay person who wants to marry can afford to travel to four states while forthy something states don’t even recognize same-sex marriages performed in those states, so you’re argument that all gay people can marry is flawed.
For the sake of argument, lets put the shoe on the other foot in this instance. How would straights like it if they could only marry in four states and what if ballot initiatives, propositions and other forms of referenda were attached to bills leaving it to the voters to decide on where you can marry and to whom? How would straights like it if the religious right were effective enough to include a mandatory requirement that only those who can procreate be allowed to marry, which is what is at the root of the anti same-sex marriage agenda? Religion doesn’t own marriage, least of all civil marriage. All states issue marriage licenses, not some religious cult. In addition, marriage licenses are not contingent or mandated on one’s ability to procreate. If they are, then straights who are married and childless either by choice or by infertility of one of the partners, then their marriages should be voided and those intending to marry under those circumstances banned from doing so to even the field. That entire procreation nonsense to define marriage is just that, nonsense, and lame at best.
Sceth
@Robert, NYC:
Jack was talking about gay people in straight marriages.
@Jack:
And it happens to be an argument thoroughly demolished in the Connecticut ruling, but see Massachusetts, California and Iowa rulings if you think such a marriage is viable.
@Thom:
Ironically Jack’s opening line still stands, because this is spam. It has been around for ages and it will probably continue to be posted. I think it’s quite sweet, but there is no point replying.
@Robert, NYC:
“If the constitution recognizes this, then Proposition 8 is illegal as are all propositions or initiatives.”
… Which constitution? I concede that the US Federal Constitution is not always taken at face value, but a demolition of an entire means of democracy is going to get a hard time passing. The Masses’ right to *be*/pick/overrule the executive -and many initiatives are executive matters not bothering about Civil Rights- doesn’t adhere to a set formulation. The discretion of the Masses is most simply determined by putting things up for a vote.
Robert, NYC
@Sceth:
Sceth are you for real? Do you really believe the average straight person would knowingly marry a gay person knowing that they are attracted to their own gender? You’re a blithering idiot and so is Jack. Those people who are gay and marry the opposite sex are few. They marry for several reasons not necessarily relating to love, the primary reason for marrying. They enter marriages with straights to cover up their orientation because they live in fear of being found out, living in shame because of bigots like you making their lives hell. So in marrying they are also living a lie, deceiving their spouses that makes their marriages fraudulent. In other words, its ok to lie, the very christian thing to do of course. During a religious marriage, unlike civil marriage, the officiating party asks if there is any impediment as to why the couple should not be married. I suppose you would be the first to voice your objection if you knew one of the two were gay, or would you be complicit with the lie and let it proceed?
Sceth
@Robert, NYC:
Don’t kill the messenger. I was only telling you what he said, which you hadn’t picked up.
Sceth
@Robert, NYC:
And I explicitly stated that I knew it’s a stupid opinion:
“And it happens to be an argument thoroughly demolished in the Connecticut ruling, but see Massachusetts, California and Iowa rulings if you think such a marriage is viable.”