Everybody Involved in Smelt v. United States Is a Crazed Lunatic


Just like (some parts of) black America, religious conservatives are threatening drop elbows on President Obama if he continues this nonsense about supposedly supporting the repeal of the Defense of Marriage Act. The Alliance Defense Fund, the Christian-founded organization that inserted itself into Smelt v. United States, is butting heads with the Obama administration and its latest DOMA brief. This would be noteworthy if: 1) Obama ever considered ADF an ally; and 2) There were not an even crazier party to Smelt. Namely, the plaintiff’s attorney — who sees the case as a chance to split California into two separate states. WTF?


Smelt v. United States, you’ll recall, was brought by Arthur Smelt and Christopher Hammer, whose marriage became a sticking point thanks to Prop 8. Now they’re suing the government, claiming DOMA violates the U.S. Constitution and stuff. And yes, this is the same case the president is taking flack for since the Department of Justice is defending DOMA, even though it doesn’t have to.

So while ADF is saying things like, “It is very disappointing that the [Justice Department] has rejected the idea that kids do best in homes with a married mother and father,” the award for craziest Smelt operator goes to Richard C. Gilbert, the attorney for Arthur Smelt and Christopher Hammer (pictured below).


It’s Gilbert, you see, who thinks Smelt will be an opportunity to divide California into two states, with “New California” being a place where people who believe in marriage equality can live and prosper. No, this does not appear to be a joke.

“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.

And it’s a good thing Gilbert has a plan, because he doesn’t think he’s got a chance in hell to win his case in court.

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.”


But what else would you expect from a family law attorney who manages to get arrested for possessing 2.5 pounds of pot? Or from the same attorney who gets reprimanded by the local bar association for making threats against a judge when he lost a case?

Somebody buy the man this t-shirt.

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