Rainbow Rascal
Covering the Spectrum of "Wut?" from a Gay Perspective

Perry v Smelt? I’m not a lawyer but…

…I am a reasonable person.  (Most of the time.) It’s a very interesting time in the world of gay civil rights litigation and here’s my take on it:

So you might have heard that California honored gay marriage. Well, they did…for a while. The California Supreme Court (CASC) ruled in In Re: Marriage Cases (IRMC) that same sex couples had a fundamental right to enter into the civil institution known as marriage. Of course, the religious nutcases were highly incensed! The sky fairy cults, led by the mormons and Cat-licks, initiated a voter-driven constitutional amendment known as Proposition 8 using the exact same words that CASC had previously ruled unconstitutional: “Only marriage between a man and a woman is valid or recognized in California.” Lo and behold, the mormons sent millions of dollars (and lied about it, but that’s for another day) and who knows how many “saints” to fight this affront to marriage. On 11/04/2008, the CA electorate passed Prop 8 by a margin of 52-48%. The measure took effect on 11/05/2008.

A suit was filed to force removal of the constitutional amendment which was quickly elevated to CASC for adjudication. Well, oral argument by the LGBT rights groups didn’t go so well. In fact, Ken Starr really used them to clean the gum off the bottom of his shoes. It really wasn’t pretty. (In fact, I think I could have done better with a couple of weeks of preparation.) A couple of days after the anniversary of Harvey Milk’s murder, CASC handed down its opinion that Prop 8 was upheld but that the 18K+ marriages that had been licensed by the state between its IRMC ruling and passage of Prop 8 would remain valid. WOW! This opinion read like I was watching the contortionists from a Cirque du Soleil show. It really was a half-assed ruling…but, of course, the legal reasoning in the complaint was pretty half-assed as well. The action was argued on purely procedural grounds with precedent stacked at first glance against the LGBT right. (If you haven’t read more detailed analysis of the Prop 8 decision, let me know and I can do so.)

And the gays protested…sort of. Some people showed up at CASC and in the Castro (and maybe even a few other towns) and blocked traffic. Police arrested 175 people, starting with clergy. (They should never have let those bastards out.) Despite being just a couple of days past the anniversary of the “White Night” riots, the gays barely managed to make it on the evening news.

Enter Ted Olson, David Boies and Richard Gilbert. Wait, who? Ted Olson and David Boies who squared off in Bush v Gore have teamed up to form the UFC championship tag-team in the gay marriage arena. The Ol-Boies did NOT receive a warm reception from the alphabet soup of LGBT rights groups, (ASRG) who promptly issued a press release denouncing suits in federal court as the way to obtaining same-sex marriage rights. Moreover, the ASRG released two publications (one new and one updated): “Make Change, not Lawsuits” and “Why the ballot box and not the courts should be the next step on marriage in California.” ASRG warned that “ill-timed lawsuits could set the fight for marriage back by decades” and stressed that their state-by-state “strategic advocacy” approach was working. (Not! you’ll hear my take on that some time.) The Ol-Boies went on the TV publicity circuit (Press conference, Larry King, AC360, MSNBC, and other’s that I can’t remember right now) to explain why the suit was NOW was the right time to sue at the federal level and really made a compelling case for no further delay in seeking justice.

A little bit about Perry et al v Schwarzenegger et al: Plaintiffs are one lesbian and one gay couple from CA who have been denied marriage licenses because of Prop 8. The lawsuit is being sponsored by the American Foundation for Equal Rights, a new organization started by Chad Griffin, who produced “Outrage.” They are asking the court to overturn both Prop 8 and the state statute to the same effect, including a preliminary injunction to that effect on grounds that Prop 8 infringes on the due process and equal protection clauses of the Constitution. The filings are well written and the reasoning is very compelling. Exactly what one would expect from professionals like Olson and Boies. Not surprisingly, the Alliance Defense Fund has motioned for intervenor status on behalf of “Yes on 8″ and other “pro-marriage” groups. All in all, Perry is going to be a battle of the titans with the Ol-Boies facing off against ADF’s Tim Chandler.

In contrast, Smelt v United States, well, smells like a dead smelt that has been sitting in the sun for a few days. The plaintiffs are a gay couple from Orange County, CA who married in July 2008 and who “suffer severe emotional distress, humiliation, mental anguish, a loss of liberty and the pursuit of happiness, a denial of equal protection of the laws, a denial of due process of law, a denial of the exercise of freedom of speech, a denial of freedom of association, a denial of privacy rights and a denial of the right to travel to establish residency anywhere in the United States with full recognition of the legality of Plaintiffs’ marriage.” It appears that they are financing the suit themselves and you’ll see why in a second if you haven’t figured it out already.

The suit asks not only that Prop 8 be overturned, but that both the “Federal Definition of Marriage Act” and the “Federal Defense of Marriage Act” be ruled unconstitutional as well. It seems as if plaintiffs’ attorney, Richard C Gilbert, flipped through several civil rights suits and copy/pasted any constitutional-sounding rights/clauses that he could find: equal protection, due process, full faith and credit, “right to privacy”, 9th amendment “right of reservation of all rights not enumerated to the people”, right to travel, and right to free speech. I’m surprised he didn’t add the establishment clause and the right to dream in color. Mr. Gilbert also pays homage to “Vice President Cheney” by including a quote from the former VP: “Freedom means freedom for everyone.” Well, now, isn’t that nice. Mr. Gilbert also seems to have a stutter when typing as fully three paragraphs on p7 of the complaint are identical. Finally, Mr. Gilbert asks for “Costs, including but not limited to attorneys’ fees.” Obviously, Mr. Gilbert is not quite the Juridical Rock Star that Mr. Olson and Mr. Boies are. Indeed, he doesn’t even know where to file his suit as the United States had to remove the suit from Orange County Superior Court to the Southern Division of the California Central District Court.

I mentioned that I thought the plaintiffs were paying for this themselves and here’s why: On Mr. Gilbert’s website, he boasts that his “fees are half what other firms charge.” I suppose this is a good thing if he actually manages to win and the taxpayers have to pay his “costs” but does one really want a “discount lawyer” arguing constitutional law and civil rights issues? It seems that this Orange County couple lost their asses in the financial market since the complaint bears a “fee waiver pending” notation. Perhaps he charged his clients the filing fee but is choosing to keep it for himself by asking for a waiver. I do hope that the plaintiffs are receiving a discount for each typo that is present in the complaint as there are many.

So we know that Mr. Gilbert produces a less than stellar product and that his clients are either poor or getting ripped off BUT let’s talk about the firm. Mr. Gilbert appears to be a partner at Santa Anna[sic]‘s “Gilbert & Marlowe, we’re a different kind of law firm.” Well, yes, you are! Gilbert’s “skilled Orange County attorneys have more than 100 years of combined experience, including working on numerous precedent-setting cases in family law, same-sex marriage, medical marijuana usage, and others.” All two of them listed in the attorney profiles?!? Moreover, Gilberts’ attorneys have been “NAMED ‘BEST LAWYERS IN AMERICA’ by Harvard Law School Graduates.” I’m glad to know though that “money shouldn’t stand in the way of getting the help you need.*” (“*Conditions do apply”)

And how about Mr. Gilbert, the man? He’s a real peach born way back in 1951 in NY, NY! Mr. Gilbert’s practice is limited to “100%” litigation in the areas of “Constitutional Law, Criminal Law, Custody & Visitation, Family Law, Personal Injury — Defense, Personal Injury — Plaintiff [and] Toxic Torts.” Mr. Gilbert received his degree from “Western State University College of Law” in Fullerton, California way back in 1977 and was admitted to the CA bar in 1979 (SBN 85912). Is it just me or does it seem that Mr. Gilbert might have had to sit the bar exam more than once? Mr. Gilbert also lists education at Whittier College School of Law, Los Angeles, California but doesn’t describe what or when he might have studied there. You might have noticed my emphasis on “way back” and thought, “What is the Rascal doing?”

Well, I checked the Internet Archive Wayback Machine to see how Mr. Gilbert’s website might have changed over the years and to see if I could glean anything further about him. The most recent page archive listed was May 2006: Interestingly, I noted the following differences 1) between 2006 and 2009, the firms “collective experience” grew from “90″ to “more than 100 years.” 2) between 2006 and 2009, “constitutional law” moved up in prominence in Mr. Gilbert’s practice areas 3) in Dec 2004, Mr. Gilbert listed his education as “Harvard Law School (PIL)” but that is no longer listed in 2009…hmmm. Let’s look at that a little more closely. Quick! Google. It seems “PIL” indicates he may have attended the “Program for Instruction of Lawyers” 4) Waaayyyyybaaack, as far as the wayback machine goes in this case. Jul 2003. A very quickly scrolling, somewhat nauseating, line of text tells me that Gilbert and Marlowe have been criminal defense and family law “attorneys for 24 years”, which jives with graduating in 1979 as both he and his partner, Diana Marlowe, did. Hmmmm….6 years further down the road to 2009 and suddenly we move from 48 years (24 each) to “more than 100 years.” Doesn’t 48 +12=60? Must have been that light speed scrolling text that altered time.

Well, enough with the discrepancies already. I’ve proved to myself that Mr. Gilbert misrepresents both his education and experience. In addition, he likely overestimates his areas of competency. Just because you CAN practice constitutional law in the area of same-sex marriage doesn’t mean you SHOULD! I’m certain that ambulance chasing is great for Personal Injury suits, but I think Mr. Gilbert should leave suits like Smelt to the good Ol-Boies.

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