DOJ to Dismiss First Federal Gay Marriage Case

The U.S. Justice Department moved to dismiss the first federal court case for gay marriage, stating the reason is that they believe it is not the right venue to take on legal questions brought by a couple who are already married in California.

The motion was filed late Thursday which argued that the case of Arthur Smelt and Christopher Hammer fails to address the right of gay couples to marry, but does, however, question whether their marriage must be recognized nationally by states without laws approving 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."

The case is different from a recent federal lawsuit filed by two unmarried gay couples in California, which claims a civil right to marry under the Constitution of the United States. The government says 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 case was filed last year originally in the California State Court before it moved to federal court. The case states a number of violations of federal rights including the rights to privacy, travel, and free expression under the First Amendment. The government filing said it would fail on each of those grounds; while each argument was addressed, it said the suit needed to be "dismissed for lack of standing by the plaintiffs to bring the claim in federal court," as explained by AP.

In a separate filing, the attorney general in California moved Thursday to have the state lawsuit by the same couple dismissed on the claim that Hammer and Smelt do not have the grounds to sue as their marriage was not affected at all by the Proposition 8 passage, the voter-approved gay marriage ban. 

The motion by the attorney general mentioned the likelihood of federal suits in the future, and also referred to "at least one highly publicized challence (that) has already been filed."

On May 26, the California Supreme Court upheld Proposition 8. In a 6-1 vote decision written by Chief Justice Ron George, arguments that ban's approval by the voters in November was a fundamental change to the California Constitution that it should have needed the Legislature's approval, were rejected by the court.