Subscribe to Breaking News
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.
@arley: Taking your argument that marriage should be what it was at the beginning of our civilization (which would be colonial America), the following would be true: you oppose same-sex marriage, interracial marriage, and marriage across social classes.
It’s a very ethnocentrist argument, as our civilization is the product of all the different cultures of all the different people that came here over the centuries. And as such, you do not represent the opinion of all straight people.
Additionally, the centuries of history behind the meaning of marriage show that it never had such legal recognition (or need for it) by the government nor the definition of being “between a man and a woman”.
If this is what Obama wants to play, then I say use DOMA as justification to pass Federal anti-miscegenation laws to overturn Loving v Virginia. Nobody would lose the right to get married–but you can’t marry somebody of the same race if that’s what state law prohibits. Remember that some states never repealed their anti-miscegenation laws, they were just rendered toothless by Loving. Granted, the argument can be made that overturning Loving is a civil rights violation, but–HA!–the reason for the Loving case was that the Civil Rights Act didn’t cover marriage. Just something to consider, especially for a self-righteous barack Obama who would in old parlance be described as a mulatto. Mulattos were generally grouped with whatever side of the family had lower social/legal standing.
@ Roger: you assert that the plaintiffs have, of course, been injured. Where in their complaint did they allege that they had applied for any federal benefit and been denied (they didn’t); where in their complaint did they allege that they went to another jurisdiction and their marriage was not recognized (they didn’t). The way it works in the legal profession is that you have to apply for your rights and be denied in order to have a claim. The plaintiffs here failed to allege that they had been harmed by the denial of an application for benefits or harmed by the denial of another state’s recognition of their marriage. They simply have not, LEGALLY, been harmed.
Why the DOJ went on to argue the merits of the case is beyond me; it was overkill if you ask me (particularly asserting negative things about gay marriages). Professor of Law Emeritus Donald Gaudard
I feel that as a gay man, that is a taxpaying citizen, I should be entitled to leave my estate, my social security, healthcare benefits to my spouse (partner if you only live in certain places that only recognize that), the same as heterosexual couples. I want the same rights and benefits that I pay for. I only get a percentage of them now and I am tired of it. It’s time as gay Americans that we take our rights, not ask for them. I want equal protections without prejudice in the legal establishment, I want equal status as a taxpayer, I want equal status that loves another human of legal and consensual age. Nothing more, nothing less…and I am tired of asking for my fellow citizens approval for it. Regardless if this one case has merit, I definitely understand the motivation and the passion involved and it’s time gay Americans take our rights not ask for them. Enough is enough!
The legal minds posting here say the couple filing this action have not been injured. Good grief! If that’s our law we are in sad condition. OF COURSE they have been injured—they are denied access to numerous federal benefits available to married male/female couples. One would think any Judge could see that but, of course, where certain minorities are cncerned, justice can be both blind AND dumb.
I understand that this may not have been a good case. However, the couldn’t the Obama DOJ simply have argued that the plaintiffs have no standing? Instead they argued, in detail, for the constitutionality of DOMA. I am VERY disappointed in the Obama administration’s actions so far. Looks like I may have to find a way to get to Washington on October 11th.
Please read the attached article from CBS nes on DOJdismissal of same-sex lawsuit. I strongly urgwe every Gay American to VOTE AGAINST Barack Obama and all Democratic candidates. yes this will empower republicans, but we must let the ZDemocrats realize that they cannot make hollow- promises to Gays and Lesbians.
Barack Obama will NEVER get my vote again. I am furious at the DOJ argument that allowing federal benefits to same-sex couples is too costly for the US Government. Do they realize the amount of Federal taxes Gay Americans pay to the Federal Government every year! I hope you are outraged too!
Gay Rights Groups Irate After Obama Administration Lauds Defense Of Marriage Act
Posted by Declan McCullagh | 8
(AP Photo/Damian Dovarganes)
As a presidential candidate, Barack Obama claimed “we need to fully repeal the Defense of Marriage Act,” which says states are not required to recognize other states’ same-sex marriages.
That was then. This week, the Obama administration is facing the ire of gay rights groups after it filed a brief in California federal court defending the Defense of Marriage Act and calling it a “valid exercise of Congress’ power” that is saving taxpayers money.
The Defense of Marriage Act, or DOMA, was signed into law by President Clinton in 1996. It doesn’t prohibit same-sex marriages; instead, it says that no state “shall be required” to honor same-sex marriages taking place elsewhere or any “right or claim arising from such relationship.”
Two married California men, Arthur Smelt and Christopher Hammer, sued the federal government to overturn DOMA. They claim that it violates their constitutionally-protected rights to travel, their rights to free speech, and their due process rights.
The U.S. Justice Department’s brief doesn’t address the morality of same-sex marriage. Instead, it makes the narrower legal argument that DOMA “merely permits each state to follow its own policy with respect to marriage” and the law “does not restrict any rights that have been recognized as fundamental.” It also says that it saves money by not paying out marriage benefits under federal law, a move that “preserves scarce government resources.”
Here’s what the Human Rights Campaign, Lambda Legal, the ACLU and other groups said in a joint statement on Friday:
We are very surprised and deeply disappointed in the manner in which the Obama administration has defended the so-called Defense of Marriage Act… The administration is using many of the same flawed legal arguments that the Bush administration used. These arguments rightly have been rejected by several state supreme courts as legally unsound and obviously discriminatory.
We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing “neutral” about the federal government’s discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states.
It’s true that the Justice Department is generally tasked with defending acts of Congress. Then again, Bill Clinton’s DOJ refused to defend the abortion speech-related provisions of the 1996 Communications Decency Act, and a law mandating criminal penalties for giving paid Medicaid planning advice. Gay activist and Washington lawyer John Aravosis notes other examples of DOJ declining-to-defend.
If Mr. Obama felt strongly enough, or Attorney General Eric Holder believed DOMA was execrable enough, the DOJ could have taken a similar position in court here. At least the president could have coupled his administration’s brief of DOMA with a speech calling on Congress to repeal it.
Neither, of course, happened. That led Aravosis to write:
It is an outright lie to suggest that the DOJ had no choice… Where in the law does it say that Obama was required to compare gay marriage to incest? And putting that little bit of religious right messaging aside, even if they “had” to file the brief against us, why didn’t they just file a brief that argued the technicalities about why the case should have been thrown out (e.g., the plaintiffs had no standing)? No, what Obama did was throw the legal kitchen sink at us in a brief that could have been written by Antonin Scalia. They argued that DOMA is constitutional. Worse yet, they argue that it was a reasonable, rational, good law that actually saves the government money.
(Legally speaking, the DOJ didn’t compare gay marriage to incest, and that word doesn’t appear in the brief. What it did was make a lawyerly argument that “the courts have widely held that certain marriages performed elsewhere need not be given effect,” including not recognizing a marriage of an uncle to a niece that took place in Italy, “because they conflicted with the public policy of the forum.”)
This isn’t the first time Obama has drawn criticism from gay rights groups. His campaign platform said “we need to repeal the ‘don’t ask, don’t tell’ policy.”
But the president has been silent on the topic since. Last month, The Atlantic blogger Andrew Sullivan wrote: “We are in the same spot as in every Democratic administration: the well-paid leaders of the established groups get jobs and invites, and that’s about it. Worse: we will get a purely symbolic, practically useless hate crimes bill that they will then wave in our faces to prove they need do nothing more.”
A recent opinion article in the Wall Street Journal written by a gay man who served as an Army Ranger said: “He promised a full repeal of the ban if he was elected. But President Obama seems to be backing down from this pledge.”
In hindsight, perhaps, it should be no surprise that Mr. Obama is shying away from this front in the cultural wars. He broke faith with liberal supporters over warrantless wiretaps, the repetition of the Bush administration’s arguments on “state secrets,” and the continuation of the Bush administration’s indefinite military detentions of terrorism suspects.
The surprise should be that some supporters seem to have confused a politician’s campaign promises with his actual policies.
America is a country for Justice for All. We fought to end Slavery, Interracial-Marriage rights and Sodomy laws. It’s time for America to update our laws and fight DOMA & DADT laws. America should “NOT” be segregated on a State-by-State issue. Let’s take a fight for our stand!
I believe that we should Marry the person that we are in Love with.. I am Gay Married Male and My Husband and I have a Normal Happy Life just like any Normal Straight Married Couples do. I am the HouseWife and My Husband is the Man of the House. We both believe in God and we Both also have Family Values and Our Families see us both in Love with each other.Not to Gay Men But Two Men In Love. I will Dammed to Let anyone tell me not to Marry who I love. I Believe it it is our choice to choose. Not Some Gay Hater Wannabes.My Parents Taught me to Fight for my Rights and to be Happy even if I am Gay and Open to Everyone and My Close Friends. Why should it bother You? Its my Heart and My Love For My Husband Jonathan..We all need to Step it More and What more Rights can they take away from me? Is not this America? Where we People and Have our Rights to Marry and Choose who we Love?
Sincerly:: Jesus M Rojo….
To arley:
You had a point up until the moment you became an expert in anthropology, history, and well everything by idiotically “pointing out” that all through history Marriage has only applied to on e man and one woman… geez… read a little will ya? The WORLD is not and does not revolve around what the right wing, traditionally “Christian” thought declares acceptable.
I don’t think DOMA and DADT will be resolved anytime soon. Obama isn’t likely to back anything the GLBT community wants. Remember Clinton? He made promises he couldn’t keep, too. Face it, the curb is getting closer and closer as we get thrown under the Bus.
Obama can defend himself, at least in some circles, with the argument that DADT and DOMA have fellow Democrat Bill Clinton’s signature on them.
What’s interesting is that despite “having so much on their plate” the Obama Administration is able to find time to file legal briefs SUPPORTING anti-gay laws, even as they argue that they have no time to fight against them.
The apparent reality is that Obama is falling back to the position that he doesn’t need to do anything more for us than Clinton did, and so with that measure established he can avoid wading into the so-called “Culture Wars”.
After all, he’s only doing what Clinton did. Clinton signed off an DADT as a compromise with Congress and the military to get out of a messy spat. Clinton put his signature on DOMA to deny conservatives a piece of ammunition to use in their mounting assault on him personally.
Obama can just sit on these laws and say they’re not his fault and it’s up to Congress to do anything about them, thus washing his hands of the whole affair.
It’s pretty obvious that he’s not prepared to exert himself in the slightest on our behalf.
I agree with those you are waking up to the fact that Obama is not our friend and neither are most Democrats in office today. We have no broad base of friends, period.
So we should use strategy to leverage our power, becuase WE ARE THE BALANCE OF POWER IN THE ELECTORATE.
I say vote for the Republicans next time. Vote for them en masse. They aren’t our friends either and will do nothing for us, but what it will do is “Fire a shot heard round the Whitehouse” about the price of betraying us. We will never be betrayed again. ‘The One’ will come crawling to us on his all too opurtunistic knees (for those with prurient minds-take that as a visual into the voting booth). Begging forgivness and doing all he can to shore up or support for 2012 as will the congressional Democracts.
Dare to punish the hypocrites JUST ONE TIME.
To Eddie in LA: We, straight people do not hate you. We just want marriage to be what it has been since the begining of our (not toher) civilization: one man and one woman. We do not recognize as legitimate any other “kind” of marriage such as polygamy or homosexual. Otherwise it loses its meaning. Call the Gay union a Civil Union and “Orthodox” mormon “marriage” poligamy, etc, and let it be. Marriage has centuries of history behind its meaning. Stop trying to change it. Marriage IS between ONE woman and ONE man.
America is a country for Justice for All. We fought to end Slavery, Interracial-Marriage rights and Sodomy laws. It’s time for America to update our laws and fight DOMA & DADT laws. America should “NOT” be segregated on a State-by-State issue. Let’s take a fight for our stand!