New marriage court battle highlights old one
SoCal couple has fought feds for marriage rights for five years
Published Thursday, 04-Jun-2009 in issue 1119
SAN FRANCISCO (AP) – Before Proposition 8, Ted Olson and David Boies, there were Arthur Smelt and Christopher Hammer.
The gay Southern California couple has fought in federal court over marriage rights for five years, the first same-sex pair to give that route a go.
But their case hasn’t garnered the publicity that prominent lawyers Olson and Boies of Bush v. Gore fame bring to the most recent federal court filing to extend marriage rights to gay men and lesbians.
In fact, some gay rights groups have tried to make their case go away, claiming it’s badly written and other challenges may stand a better chance. They fear a poorly drafted or argued case could result in an unfavorable ruling in the U.S. Supreme Court.
To be sure, many gay rights groups also oppose Boies’ and Olson’s lawsuit saying marriage rights are best won through state legislatures and voters.
But the Smelt case, as it’s called, could provide a peek into what’s ahead for the newest lawsuit as it begins its journey through the federal court system and perhaps makes it all the way to the nation’s top court.
Smelt and Hammer, of Mission Viejo, first went to federal court in Orange County in 2004. A federal judge there ruled against them, saying the government had a right to protect and foster procreation.
They appealed to the 9th U.S. Circuit Court of Appeals, and in 2006 a three-judge panel tossed the case, saying the federal judiciary should stay out of it for now and leave the issue to the states. Even influential gay rights groups such as Equality California opposed that lawsuit. Equality California asked the appellate court to throw out the case without reaching its merit.
In its ruling, the court also said the couple did not have legal standing to sue over federal laws against same-sex marriage because the pair had not attempted to acquire any federal benefits of marriage, such as filing a married income tax return.
They appealed to the U.S. Supreme Court, which refused to hear the case.
The now-married couple (they tied the knot last year when it was briefly legal for same-sex couples to wed in California) filed a new suit in December. It claims denying same-sex couples the right to marry violates the U.S. Constitution. It also seeks to overturn the federal Defense of Marriage Act, which prohibits same-sex couples from claiming federal marriages benefits such as filing joint tax returns.
Smelt and Hammer are represented by lawyer Richard Gilbert, who runs a small Santa Ana law firm unaffiliated with the major gay rights groups. Gilbert is dismissive of his many critics, who have for years studiously filed narrowly tailored legal challenges to be fought exclusively in state court.
“This is the only way to call the question,” Gilbert said. “The other attorneys have been fighting the wrong fight in the wrong courts.”
The Smelt case is broader than the Boies-Olson challenge to California’s same-sex marriage ban, filed Friday on behalf of two California same-sex couples. The California Supreme Court on Tuesday upheld Proposition 8.
“We wanted to file a well-constructed, narrow lawsuit,” said Ted Boutrous, Olson’s law partner at the Los Angeles large firm of Gibson, Dunn & Crutcher, who is also working in the case.
That case argues that a California constitutional amendment eliminating the right of same-sex couples to marry violates the U.S. constitutional guarantees of equal protection and due process.
Gilbert says the legal landscape has changed dramatically now that the California high court has allowed the marriage ban to remain but has recognized the estimated 18,000 couples, including his clients, who married while such unions were legal.
But some gay rights advocates are still wary and say the Smelt case is not the way to go.
“It’s an enormous intellectual exercise against the biggest legal opponent in the country – the United States government,” said Lambda Legal’s Jennifer Pizer.
A similar challenge to federal same-sex marriage law was brought in Massachusetts in March by the Gay and Lesbian Advocates and Defenders, but Pizer said the Boston group is being supported by big law firms.
Proposition 8 supporters have received permission to enter the new Smelt case in opposition alongside federal prosecutors, said Andrew Pugno, a Sacramento lawyer for, the leading group behind the initiative.
“We would rather not have to defend the will of the people over and over again,” he said.
The next move in the Smelt case is expected by June 11, the deadline for the federal government’s opposition to the lawsuit. Department of Justice spokesperson Charles Miller declined comment.

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