http://www.sfgate.com/cgi-bin/article.c ... .DTL&tsp=1(06-12) 09:42 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.
More News
* UN imposes tough new sanctions on NKorea 06.12.09
* Congress sends Obama bill to regulate tobacco 06.12.09
* Cops shoot suspect in cell-phone store killing 06.12.09
* Superfund money to clean 'mouth of the beast' 06.11.09
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 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."
Justice spokeswoman Tracy Schmaler said Friday that the department, as it generally does, is defending existing law in court.
"The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT (lesbian, gay, bisexual, transgender) couples from being granted equal rights and benefits," she said. "However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."
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 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.
And here's the full brief: http://www.scribd.com/doc/16355867/Obam ... riage-case
And here's some great quotes from the brief:
"As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage."
"The constitutional propriety of Congress's decision to decline to extend federal benefits immediately to newly recognized types of marriages is bolstered by Congress's articulated interest in preserving the scarce resources of both the federal and State governments. DOMA ensures that evolving understandings of the institution of marriage at the State level do not place greater financial and administrative obligations on federal and state benefits programs...If [a State] were to permit homosexuals to marry, these marital benefits would, absent some legislative response, presumably have to be made available to homosexual couples and surviving spouses of homosexual marriages on the same terms as they are now available to opposite-sex married couples and spouses. To deny federal recognition to same-sex marriages will thus preserve scarce government resources, surely a legitimate government purpose."
" DOMA reflects a cautiously limited response to society's still-evolving understanding of the institution of marriage."
" Section 3 of DOMA reflects just such an approach: it maximizes democratic flexibility and self-governance under our federalist system, by adopting a policy of federal neutrality with respect to a matter that is primarily the concern of state government. Because all 50 States recognize heterosexual marriage, it was reasonable and rational for Congress to maintain its longstanding policy of fostering this traditional and universally-recognized form of marriage. At the same time, because Congress recognized both the freedom of States to expand the traditional definition, and the freedom of other States to decline to recognize this newer form of marriage, a policy of neutrality dictated that Congress not extend federal benefits to new forms of marriage recognized by some States. "
" In short, therefore, DOMA, understood for what it actually does, infringes on no one's rights, and in all events it infringes on no right that has been constitutionally protected as fundamental, so as to invite heightened scrutiny."
" Loving v. Virginia is not to the contrary. There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Court had little difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. Id. at 11. No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Thus DOMA cannot be "traced to a . . . purpose" to discriminate against either men or women. Personnel Adm'r v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282, 60 L.Ed.2d 870 (1979). In upholding the traditional definition of marriage, numerous courts have expressly rejected an alleged analogy to Loving."
" Plaintiffs also maintain that DOMA discriminates on the basis of sexual orientation, in violation of their right to the equal protection of the law, see Complaint, ¶ 20, but DOMA is not subject to heightened scrutiny on that basis. As an initial matter, plaintiffs misperceive the nature of the line that Congress has drawn. DOMA does not discriminate against homosexuals in the provision of federal benefits. To the contrary, discrimination on the basis of sexual orientation is prohibited in federal employment and in a wide array of federal benefits programs by law, regulation, and Executive order.... Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage."
Many more great quotes here: http://www.americablog.com/2009/06/obam ... -doma.html
