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Loading ...DOJ moves to dismiss first fed gay marriage case
06.12.2009 3:00pm EDT
(Los Angeles) The U.S. Justice Department has moved to dismiss the first gay marriage case filed in federal court, saying it is not the right venue to tackle legal questions raised by a couple already married in California.
The motion, filed late Thursday, argued that the case of Arthur Smelt and Christopher Hammer does not address the right of gay couples to marry but rather questions whether their marriage must be recognized nationwide by states that have not approved gay marriage.“This case does not call upon the Court to pass judgment … on the legal or moral right of same-sex couples, such as plaintiffs here, to be married,” the motion states. “Plaintiffs are married, and their challenge to the federal Defense of Marriage Act (”DOMA”) poses a different set of questions.”
It’s a different case from a recent federal lawsuit by two unmarried gay couples in California who claim a civil right to marry under the U.S. Constitution.
The government said Smelt and Hammer seek a ruling on “whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by states that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits.
“Under the law binding on this Court, the answer to these questions must be no,” the motion states.
The 54-page document traces the history of the federal Defense of Marriage Act (DOMA) passed by Congress in 1996 at a time when states and their citizens were just beginning to address the legal status of same-sex marriage.
The case was originally filed last year in California State Court before heading to federal court. It claims violation of a number of federal rights including the right to privacy, the right to travel and the right of free expression under the First Amendment.
The government’s filing said the suit would fail under each of those grounds. While it addressed each argument, it claimed the suit should be dismissed for lack of standing by the plaintiffs to bring the claim in federal court.
In a separate filing, the California attorney general moved Thursday to dismiss the state lawsuit by the same couple, saying Hammer and Smelt lack standing to sue because their marriage was unaffected in any way by the passage of Proposition 8, the voter-approved gay marriage ban.
The attorney general’s motion noted there are likely to be more federal suits and referred to “at least one highly publicized challenge (that) has already been filed.”
On May 26, the California Supreme Court upheld Proposition 8.
In a 6-1 decision written by Chief Justice Ron George, the court rejected arguments that the ban approved by the voters last fall was such a fundamental change in the California Constitution that it first needed the Legislature’s approval.
Didn’t their attorneys see this coming? Either they had idiots for lawyers or the lawyers advised against this road and they choice to ignore the advise. If that was the case then one can only surmise that they had lots of money to throw away.
BULLSHIT
Bad facts make bad law; this case is really bad. The lawyers should be sanctioned for filing a suit which has no merit; the plaintiffs lack standing to even be in court on this case, and when the case is heard in August, it will be thrown out by the judge.
The lawyers are obviously not federal constitutional lawyers and obviously are in over their heads; they made a number of really stupid moves which only a novice lawyer looking for publicity would make. For example, you can’t file a claim unless you have been injured; how have these plaintiffs been injured; they haven’t. That is only one of the silly moves made by these novice lawyers. Professor of Law Emeritus Don Gaudard
Same-sex marriage is a waste of time in California. Prop 8 won’t likely be overturned in 2010 by a referendum. California register voters made it very well clear and gave the final say so rather we agree to disagree. You can argue all you about marriage equality, but first you have to try to un-brainwash conservative voters in California in order for them to vote in favor.
Gay Americans are getting the run-around from the White House and President Obama, the Pentagon, Speaker Pelosi, Senate Majority Leader reid and now the DOJ on the repeal of DOMA.
If you are Gay and you care about your Federal rights and those of other gay Americans you will STOP automatically supporting the Democratic party or ANY politician that makes prmises but doesnt initiate Federal legislation to repeal the DOMA but also DADT.
Please take the time to email House Speaker Nancy Pelosi, Senate Majority Leader Harry Reid, President Obama and the Democratic Party that they can no longer expect your automatic vote or financial support UNTIL they enact legislation to repeal DOMA and DADT.
We must act now when the Democrats are in control of the House and the Senate. I for one am tired f the rhetoric from Obama and the Democratic Party yet no action to repeal DOMA and DADT.
please send the emails and let the Democrats know that the Gay American voting block of 5-10% of the electorate cannot offer any further voting support or financial support until DOMA and DADt are repealed.
I will no longer offer support on a promise. I expect the action of the President and the Congress to repeal DOMA and DADT.
Obama is just another hater.
He says one thing and does another.
I really hate myself for giving him my money.
– Prop 8 won’t likely be overturned in 2010 by a referendum. California register voters made it very well clear and gave the final say so rather we agree to disagree. –
Wow… I never realized that a 1.1% shift in public opinion if the issue were decided again by ballot is tantamount to “voters made it very well clear and gave the final say” so everyone should just give up and go home.
Are you telling me if Prop 8 had been defeated by a similar margin last year that the conservatives wouldn’t have mounted another challenge shortly thereafter?
WAKE UP PEOPLE – Straight people still hate you.
They want your money – that’s all.
Obama is not your friend.
This is his DOJ – HE IS RESPONSIBLE FOR THIS!
To Guadard, are you telling me that not one of the federal rights that come with marriage recognition, that has been denied to the couple, applies to them? I find that hard to believe.
I agree with Eddie from LA. I sent money to the Obama campaign and then he chose Rick Warren to give the invocation at his inauguration. He took my money and spit in my face. Now he’s ignoring us and stabbing us in the back. I’ll never give another dime to another democratic candidate as long as I live.
allen,
Prop 8 is like a Nintendo video game. Gays keep fighting and Heteros keep defeating. If voters ever overturn Prop 8, it will come back again and again every year in playing games with California voters.
little more the 30% of All Californians voted for Prop 8, leaving 70% plus to eventually do the right thing and reject the bigotry, ignorance and hate.
Good idea, wrong target. They should have attacked DOMA head-on instead of trying to get cute. DOMA was, is and continues to be un-Constitutional. Even more so now that gays are allowed to marry in some states.
It’s almost as if the PTB will only hear suits that they KNOW don’t have a snowballs chance in hell of bringing the REAL light of justice down on the anti-gay bigotry in our system.
There is nothing to worry about with this case; when the judge hears it on Aug. 3, he’s going to throw it out because it is so poorly pleaded and because it is lacking facts to justify a claim. When it is thrown out, only a fool with a lot of money would appeal it to the liberal 9th circuit court of appeals. If such a foolish step is taken, the 9th circuit will again throw it out. A first year law student could have filed a better claim; if these lawyers were students of mine, I would flunk them in a New York minute. Professor of Law Emeritus Don Gaudard
@ Randy: There may be federal rights that come to a gay marriage, but in order to file a claim for a denial of those benefits, you first have to apply for them and be denied. These plaintiffs did nothing. That is why the Gill case filed by the Gay and Lesbian Advocates and Defenders (GLAD) is the appropriate case to file. In that case, the plaintiffs (legally married in Massachusetts) actually applied for federal benefits and were denied. Their applications and their denials were made a part of the complaint. The federal Justice Dept. has until June 29 to respond to the Gill complaint. This California case has none of those claims and denials. The plaintiffs simply have not been injured, the prerequisite to filing a federal law suit. Professor of Law Emeritus Donald Gaudard