July 23, 2009 11:02 AM
U.S. Moves To Dismiss Gay Marriage Case
The U.S. Justice Department is seeking to have dismissed the first gay marriage case filed in federal court, saying it is not the right venue to tackle legal questions raised by a same-sex couple already married in California.
The Justice Department 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.
"By asking to have this case tossed, the government is simply defending federal law as it currently exists under the so-called Defense of Marriage Act," said CBS News legal analyst Andrew Cohen. "So it's neither surprising nor controversial that the feds would take this position. It's really right now a state issue.
"In a way the feds are doing same-sex marriage proponents a favor by trying to block a federal challenge to the practice because, Judge Sotomayor or no, there clearly are not 5 votes on the U.S. Supreme Court to endorse nationwide same-sex marriage," said Cohen.
The Supreme Court is probably years away from interjecting itself in the same-sex marriage debate - it's only been five years since Massachusetts recognized such marriages - and it's unlikely that lower federal court judges would be willing to intervene here, Cohen said.
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 of the U.S. Constitution.
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.
DOMA, which was sponsored by then-Georgia Rep. Bob Barr, established a Federal definition of "marriage" as a legal union only between a man and a woman, and amended the Federal judicial code so that no State, territory or possession of the U.S. would be required to honor a same-sex marriage performed in another state.
Barr recently authored a Los Angeles Times Op-Ed advocating that the law be repealed, saying that DOMA as it has worked out does not adhere to principles of federalism.
"It truly is time to get the federal government out of the marriage business," Barr wrote.
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 last November of Proposition 8, the voter-approved gay marriage ban. Proposition 8 overturned an earlier California Supreme Court ruling legalizing gay marriage.
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.
However, the court ruled it would be unfair and unnecessarily disruptive to dissolve the estimated 18,000 marriages that were conducted during the brief five months when same-sex marriage was legal in California.
Six states - New Hampshire, Massachusetts, Connecticut, Maine, Vermont and Iowa - have now legalized gay marriage either through state court rulings or the legislative process.
For more info:
DOMAWatch.org
Californiansagainsthate.com
The Justice Department 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.
"By asking to have this case tossed, the government is simply defending federal law as it currently exists under the so-called Defense of Marriage Act," said CBS News legal analyst Andrew Cohen. "So it's neither surprising nor controversial that the feds would take this position. It's really right now a state issue.
"In a way the feds are doing same-sex marriage proponents a favor by trying to block a federal challenge to the practice because, Judge Sotomayor or no, there clearly are not 5 votes on the U.S. Supreme Court to endorse nationwide same-sex marriage," said Cohen.
The Supreme Court is probably years away from interjecting itself in the same-sex marriage debate - it's only been five years since Massachusetts recognized such marriages - and it's unlikely that lower federal court judges would be willing to intervene here, Cohen said.
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 of the U.S. Constitution.
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.
DOMA, which was sponsored by then-Georgia Rep. Bob Barr, established a Federal definition of "marriage" as a legal union only between a man and a woman, and amended the Federal judicial code so that no State, territory or possession of the U.S. would be required to honor a same-sex marriage performed in another state.
Barr recently authored a Los Angeles Times Op-Ed advocating that the law be repealed, saying that DOMA as it has worked out does not adhere to principles of federalism.
"It truly is time to get the federal government out of the marriage business," Barr wrote.
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 last November of Proposition 8, the voter-approved gay marriage ban. Proposition 8 overturned an earlier California Supreme Court ruling legalizing gay marriage.
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.
However, the court ruled it would be unfair and unnecessarily disruptive to dissolve the estimated 18,000 marriages that were conducted during the brief five months when same-sex marriage was legal in California.
Six states - New Hampshire, Massachusetts, Connecticut, Maine, Vermont and Iowa - have now legalized gay marriage either through state court rulings or the legislative process.
For more info:
CBS/ AP
