LOS ANGELES, June 12, 2009
U.S. Moves To Dismiss Gay Marriage Case
Calls Federal Court Improper Venue For Suit Against Defense Of Marriage Act Brought By Calif. Couple
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(AP / CBS)
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Interactive Same-Sex Marriage Debate State-by-state coverage, opinions, history, photos and a look at the amendment process.
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.
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Add a Comment See all 17 Comments
- Saturn05, where in the 2nd admendment say that it I have to have a concealed weapons permit to carry a a gun?
- Reply to this comment
- Might be time for gay Americans to start using violence to fight for their just rights. Bigots are disgusting, foul cretins.
Posted by informedone1 at 10:23 AM : Jun 13, 2009
Well, we're finally hearing from the queeriban. It's wrong that some people are selfish perverts...it's worse that selfish perverts are so self-righeous that they think their entitled to resort to violence. Do your thing. If your perversions aren't enough to make people see your ugliness then your terrorism will. - Reply to this comment
- Obama is a liar and a fraud. He always talks about tolerance, but doesn't practice what he preaches. I guess after his visit to a concentration camp, he forgot that homosexuals were also sent to them and tortured and killed by the Nazis. Any gay person or supporter that pays taxes to help their government oppress them is absolutely crazy. Might be time for gay Americans to start using violence to fight for their just rights. Bigots are disgusting, foul cretins.
- Reply to this comment
- Obama is a fraud and liar. Let history show that his fatal mistake as president was not granting freedom to gays.
He is a bigot. Sad but true. - Reply to this comment
- Hi Gang,
Just an FYI
Trying to help-not spamming.
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http://www.cnn.com/video/flashLive/live.html?stream=stream1
Google TVU player to download free, no hassle, live tv - Reply to this comment
- As far as the government is concerned, there should only be civil unions, no matter what the genders of the couple are. The government should only be concerned with the legal aspect of things. Other than that, people can choose to call it marriage or whatever, have it done at a church, temple, or in Vegas.
There, problem solved. - Reply to this comment
- correction!! will NOT hurt me or my family in any way.
- Reply to this comment
- In 1967 Loving v Virginia went before the Supreme Court and Interracial marriage became legal in many states and now 40 years later Interracial marriage isn't spoke about other than in history books and lectures. I am not saying this is the same but we all know that Gay Marriage will come to the Supreme Court and it will become legal. This is how equal rights work. Don't get me wrong I believe that all people should have to go to the state and get a civil union and if they want to have a church wedding then the church gives the marriage certificate ( true seperation of church and state). I am one of those that do feel the word Marriage is a religious institution but giving all americans the same rights will hurt me or my family in any way.
My two cents and I am sure I will be landbasted for them! - Reply to this comment
- A great post that defines the difference between tolerance & acceptance.
I think the vast majority of people are fully on board with tolerance. Acceptance is another story.
Posted by Questionews at 2:06 PM : Jun 12, 2009
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I agree. I sometimes feel that homosexuals are not satisfied with tolerance, but rather long for acceptance. Why is that? Of course that is just my opinion. - Reply to this comment
- Everyone has a choice.... if that's what you choose, good for you, but please do not expect me to go back on what I believe just so your feelings aren't affected. Be at peace and enjoy yourself, but do not feel like you need me to condone your choice to make it official. Have a great day.
Posted by blog_fever2 at 1:49 PM : Jun 12, 2009
A great post that defines the difference between tolerance & acceptance.
I think the vast majority of people are fully on board with tolerance. Acceptance is another story. - Reply to this comment
- blog_fever2, Very well said
Posted by TNisgoodenoughforme at 1:58 PM : Jun 12, 2009
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Thanks - Reply to this comment
- blog_fever2, Very well said
- Reply to this comment
- Since when should marriage be one-uped by a bunch of perverts? Marriage is for procreation, which a bunch of homosexuals can not do.
Posted by Willynailer at 1:41 PM : Jun 12, 2009
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Food for thought. - Reply to this comment
- Everyone has a choice.... if that's what you choose, good for you, but please do not expect me to go back on what I believe just so your feelings aren't affected. Be at peace and enjoy yourself, but do not feel like you need me to condone your choice to make it official. Have a great day.
- Reply to this comment
- If this was truly a free country, everyones rights would matter not just the most vocal ones.
- Reply to this comment
- Since when should the 14th Amendment of the Constitution be one-uped by the unbelievable DOMA which in itself is a 100% reversal of the 14th Amendment. Let's take away the 15th Amendment while we are at it. Can you imagine that! Let same-sex marriage happen, turn your energy to the real problems. Rapists, murderers, pedophiles(not homosexuals), our economy, racism, bigotry, hatred and your local community which could probably use your time. Be at peace with yourself and your surroundings and stop the hate against homosexuals.
Posted by saturn05 at 12:49 PM : Jun 12, 2009
Well said!!! - Reply to this comment
- Since when should the 14th Amendment of the Constitution be one-uped by the unbelievable DOMA which in itself is a 100% reversal of the 14th Amendment. Let's take away the 15th Amendment while we are at it. Can you imagine that! Let same-sex marriage happen, turn your energy to the real problems. Rapists, murderers, pedophiles(not homosexuals), our economy, racism, bigotry, hatred and your local community which could probably use your time. Be at peace with yourself and your surroundings and stop the hate against homosexuals.
- Reply to this comment
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