- The Washington Times - Monday, April 3, 2006

SAN FRANCISCO (AP) — As homosexual “marriage” advocates battle through the courts for the legal right to “wed,” a split has emerged over the best strategy to win.

Two homosexual California men plan to ask a federal appeals court this week to declare that they have a right to “marry” under the U.S. Constitution, but heavyweights in the fight for same-sex “marriage” think that legal tactic is misguided.

Groups such as the Lambda Legal Defense and Education Fund and the American Civil Liberties Union are withholding funding and other support for the case, saying a U.S. Supreme Court ruling is a likely loser and would set bad precedent.

“We have been very active in trying to win the freedom to marry for same-sex couples,” said Jon Davidson, legal director for Lambda. “We think there is a smart way to do that and a less smart way to do that.”

Lambda and other groups are waging their campaigns in state courts in California, Iowa, Washington, New Jersey, New York and elsewhere, seeking similar rulings to the one that led to legal homosexual “marriages” in Massachusetts.

The lawyer for a California couple whose case will be heard today by the 9th U.S. Circuit Court of Appeals scoffs at the groups’ tactics.

“You fight for your rights when your rights are being denied,” Richard Gilbert said.

His clients, Arthur Smelt and Christopher Hammer, are arguing in federal court that the U.S. Constitution’s equal rights guarantee forbids laws against same-sex “marriage.” The two men, both in their 40s, declined to comment.

The lawsuit is one stop short of the Supreme Court — meaning the case could prompt a definitive ruling by the justices as early as next year on whether the 49 states that don’t permit same-sex “marriage” are violating the Constitution.

Many same-sex “marriage” advocates think homosexuals must win the right to “marry” in several states before bringing the case to the Supreme Court.

That approach is failing, Mr. Gilbert said.

Despite recent polls showing Americans are increasingly accepting of same-sex “marriage,” the movement has seen a backlash in the two years since Massachusetts started issuing marriage licenses and San Francisco Mayor Gavin Newsom’s short-lived and illegal move to allow homosexuals to marry at City Hall.

In 2004, 13 states approved constitutional bans on same-sex “marriage.” Texas and Kansas followed the next year. All told, 19 states have amended their constitution to outlaw homosexual “marriage,” and voters in six or more states could be asked to amend theirs similarly this year.

Even Mr. Gilbert suspects that his case might lose at the Supreme Court or be dismissed on procedural grounds without a definitive ruling.

“Once there is a great stain like that on the courts, there will be a greater movement toward correcting the problem,” he said.

Mr. Gilbert likened his case to the 1857 Dred Scott decision, when the Supreme Court ruled that black men could be “treated as an ordinary article of merchandise.”

The nation eventually overcame that decision with the Civil War and banned slavery. The ACLU and Lambda, Mr. Gilbert said, “would have told Dred Scott, ‘Don’t bring your case.’”


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