DOJ moves to dismiss first fed gay marriage case

DOJ moves to dismiss first fed gay marriage case

By LINDA DEUTSCH, AP Special Correspondent

Friday, June 12, 2009

(06-12) 00:41 PDT Los Angeles, CA (AP) --

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 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.

"DOMA does not address whether a same-sex couple may marry within the United States," the motion says. "Instead, it permits the citizens of each state to decide that question for themselves."

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."

That case, Perry v. Schwarzenegger, drew wide attention because it was filed by David Boies and Theodore Olson, the two lawyers who opposed each other in the famed election challenge in Bush v. Gore in 2000. The suit raises different issues seeking to frame gay marriage as a federal civil right.

"Our lawsuit squarely presents the federal constitutional challenges to Proposition 8's marriage ban, which are not presented in the Smelt case because those plaintiffs' are already married. We believe our arguments are exceedingly strong," Theodore Boutrous Jr., a member of the legal team in that case, said Thursday night.

On May 26, the California Supreme Court upheld Prop. 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.