We were having so much fun with Smelt v. United States, the Defense of Marriage Act challenge filed by some homos wanting to get hitched. And then the judge just threw the case out.
On a technicality. U.S. District Judge David O. Carter says the case must be refiled — in federal court. Yes, the case was in federal court just now, but because plaintiffs Arthur Smelt and Christopher Hammer originally filed it in state court before it was transferred, Carter threw it out. But yes, they can refile.
It’s a setback, sure, and an obnoxious one at that, given the five-year history of this case. (Also annoying: That Smelt and Hammer’s attorney Richard C. Gilbert says he only brought it to state court because “another federal judge refused to waive court fees for his clients,” reports the AP.)
Smelt and Hammer, in fact, are married; they wed during the legal window before Prop 8 in California. But after the ballot measure passed, they refiled their case. Because seriously: What state creates three separate classes of citizens.
But maybe they should find another attorney? Mr. Gilbert, after all, appears to legitimately believe his case will lead to California splintering into two states, with New California playing home to rational thinkers who believe in marriage equality. Listen: If decades of threats by Texas to secede haven’t yielded any results, a homo’s marriage lawsuit won’t, either.
At least with the refiling of Smelt, the Justice Department will once again have the chance to declare the federal government’s position on gays: second-class citizens.
Smelt is a crap case and, if we’re lucky, won’t be refiled. Their briefs were almost incoherent and certainly NOT anything that’s going to get the Supreme Court to give us marriage. Plus, there’s the whole standing issue: these guys are married, so why are they suing, exactly?
I don’t agree with the strategy in Perry v. Schwarzenegger, but at least the attorneys aren’t wingnuts and their clients have an actual claim. I’m hopeful that Gill v. OPM will go forward first, as it’s the most well-thought out, strategic DOMA challenge and, IMNSHO, has the best chance of success.
@Sam: You said “Plus, there’s the whole standing issue: these guys are married, so why are they suing, exactly?”
They are suing because they were legally married in a different state and their marriage isn’t recognized in their home state I believe. A completely valid argument under the Full Faith and Credit clause as well as the UCC could be made. It is fine to origionally file in State court and have the case moved, the judge just wanted an excuse to toss it.
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