Alex Blaze

Smelt case thrown out on technicality

Filed By Alex Blaze | August 25, 2009 12:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: DOMA, law, lawyer, marriage, richard gilbert, smelt

The judge in the Smelt case (the California couple suing to overturn DOMA, Obama's DOJ responded in an offensive brief...) just threw it out because it was filed earlier in a state court. Their attorney attempted to sue the federal government in state court, and here's his reasoning:

[Attorney Richard] Gilbert said he took the suit to state court only after another federal judge refused to waive court fees for his clients, Arthur Smelt and Christopher Hammer. The Orange County couple are disabled and live on fixed incomes, he said.

Wouldn't it have made sense to find money for the court fees instead of just wasting time by filing it in state court?

This case led to an uproar from the community, even though there really hadn't been much interest in it before. LGBT legal orgs kinda knew it wasn't going anywhere and had little chance of winning, and the fact that the lawyer is rather hapless didn't help gain much publicity for the case, either.

Monday's action was the latest episode in a five-year legal losing streak for the couple. With Gilbert representing then, they first went to federal court to challenge both the federal law and California's refusal to grant them a marriage license in 2004.

A federal judge ruled against them, and in 2006 the 9th U.S. Circuit Court of Appeals did as well, saying marriage laws were a state matter and that Smelt and Hammer were ineligible to challenge the federal law because they were unmarried and hadn't tried to secure any federal spousal benefits.

Maybe the situation was more complicated than this LA Times article makes it seem, but it almost sounds like this lawyer filed this case without getting his plaintiffs to even make a basic effort to show damages or standing. And there were many of the same questions this time around, with the second brief filed by the DOJ citing repeatedly the fact that most of its arguments were left completely unresponded to by the plaintiffs.

But something tells me we haven't heard the end of it from Gilbert, Smith, and Hammer.

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