Saturday, June 13, 2009

Smelt & Hammer v US

I am probably not going to take a very popular stand but I think this case deserves to be dismissed.

Having read the US attorney's brief requesting dismissal, I would have to say that Smelt and Hammer's case was weak.  Let me be clear. I don't agree with the arguments raised in the brief. However,  as a narrowly interpreted view of the law, the authors make their case that this deserves to be dismissed.

Smelt and Hammer argued that their marriage was constitutionally entitled to acknowledgement by every state and the federal government.  Specifically they claimed they were being denied federal benefits.  However, they had failed to apply for any of these benefits and even though you and I both know that if they had they would have been denied those benefits the fact that they had not was precedent.  You can't claim you're being discriminated against without some sort of direct evidence.  Not in a court of law.

The brief is a devastating defense of DOMA and could be used as the basis of future attempts to deny LGBT rights. Among other things, it concludes that sexual preference is not a "suspect classification". What this means is that homosexuals are not considered a group likely to be the subject of discrimination.  That this flies in the face of what we all know to be true doesn't mean that there's not legal precedent for this interpretation.   Mind you they're quoting a single Ninth District court ruling. (A ruling that Lambda Legal calls one the top 40 most important lawsuits regarding LGBT rights.  The case ruled that the federal government could deny security clearances to gays based on their orientation in 1990.  Clinton overturned this ruling by Executive Order 12968 that removed sexual orientation as a factor for the granting of security clearances.)

The case was weak.  There are many more suitable candidates out there.  I think the correct route will be for a legally married same-sex couple to file a joint tax return.  When they are inevitably called out on it, then they can file a discrimination suit.  Then they will have been discriminated against because of DOMA and its idiotic wait and see approach to same-sex marriage and excuse that its in the fiscal interest of the government to deny federal benefits.

Oh, and calling this Obama's brief is a bit disingenuous.  He didn't write it. One W. Scott Simpson was a co-author.   And guess what?  His email is on the brief.
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1 comment:

Lizzy Frizzfrock said...

I came to you from "monkeys on the roof" of all places. I'm not a native Texan, but Texan by choice and am true blue! Read your profile & like you never voted for "Dubya" and am a yellow dog Dem.