I think if I were the plaintiff in this case, I might begin looking for a new lawyer tout de suite. One that was, if nothing else, a bit more close mouthed.
The attorney representing two gay men who sued in state court and now in federal court in southern California to win the right to marry hopes the case will spawn a political movement that will result in residents there voting by ballot initiative to divide the state in two. "We're hoping to use the case in court as a springboard to get a proposition on the ballot that will break up California into two states," said Richard C. Gilbert, a partner at Gilbert & Marlowe, a law firm with two offices in California. "We think if we can get this proposition on the ballot, we think we'll win." Gilbert said the ideal result would be that all the counties north of Los Angeles would become New California while the southern counties would remain California.
Gilbert likened the circumstances of his clients — Arthur Smelt and Christopher Hammer — to Dredd Scott, who sued for his freedom in the 19th century only to have the US Supreme Court rule in 1857 that no African-American, free or enslaved, could be a US citizen. That decision contributed to the Civil War and Scott was eventually freed. "We don’t want a civil war," Gilbert said. "We just want to have civil division in our state between people who are willing to respect the rights of all people and those who are not." Residents of New California, in his view, would be far more amenable to arguments in favor of marriage equality than those in the southern part of the state.
The couple originally sued in 2004 in state court, where the case was dismissed, but they have continued fighting on procedural grounds into federal court. They are battling to keep the case alive in federal court where, Gilbert said, their chances of prevailing are poor. "I would expect that we would not succeed in the courtroom, but that we have a much greater chance of success in creating a New California, two separate states, if we can spread the word," he said....
...I just can't begin to parse all the things that are wrong with this. (For the sake of sanity, I'm not going near the Dredd Scott comparison. Though I will note that it is emblematic of the stunning tone-deafness of the entire argument.) First, this simply can't help their case -- the lawyers make it sound strongly like the entire case was specifically designed essentially a frivolous lawsuit, which means that not only will the plaintiffs lose, but they may have their case dismissed with prejudice, and be barred from going back to court on this cause. (Not that anybody else would necessarily want them to go back to court.) Second, I truly cannot see how this could possibly induce the people of California to split their state; they've had far more severe north/south-city/rural agitations than this and somehow managed to stay together.
Most important, however is this: these lawyers would seem to have a truly wretched sense of the state's geography and demography. Yes, the southern end of the state does have only two counties that voted against Prop 8. Yes, most of the counties voting against Prop 8 were up north. However, as this CNN map of the 2008 election results on this issue shows, the issue wasn't so much north vs south as it was urban vs rural and coastal vs everywhere else. (The two counties against the Nevada border can be ignored for this, as they had a grand total of fewer than 6,000 voters.) From looking at the map and at the county results, it seems unlikely that the coastal counties could have entirely counterbalanced the rest of the north. Splitting the state north and south likely doesn't gain you much, if anything, unless the dividing line is not only very far north indeed, but also more or less diagonal.
But honestly, the impression left by this tactic is primarily that these are lawyers I would definitely not want representing me. I hope they can win despite themselves -- but somehow, I doubt that will happen.
Posted by iain at August 19, 2009 01:07 PM
