DOJ Motions to Dismiss Federal Same-Sex Marriage Case

This is not the recently-announced Olson-Boies case, but an earlier case brought by a couple married in California arguing their marriage should be recognized in other states:

Smelt "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.'…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."

DOJ Moves to Dismiss First Fed Gay Marriage Case [ap via sf gate]

Americablog checks out the briefs:

"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. Preserving scarce government resources — and deciding to extend benefits incrementally — are well-recognized legitimate interests under rational-basis review. See Butler, 144 F.3d at 625 ("There is nothing irrational about Congress's stated goal of conserving social security resources, and Congress can incrementally pursue that goal."); Hassan v. Wright, 45 F.3d 1063, 1069 (7th Cir. 1995) ("[P]rotecting the fisc provides a rational basis for Congress' line drawing in this instance."). Congress expressly relied on these interests in enacting DOMA: Government currently provides an array of material and other benefits to married couples in an effort to promote, protect, and prefer the institution of marriage. . . . 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."

Motion to Dismiss documents [americablog]


  1. BillyBoy says

    A totally misconceived lawsuit in the first place — it’ll be dismissed for lack of standing.

    There are people like GLAD who know how to build a case around the right plaintiffs. This sort of well-intentioned amateurism isn’t helpful at all.

  2. Strepsi says

    BILLYBOY, I disagree — this is totally helpful, at least in that it shows the desperation and nastiness of the government response. We faggots are now a financial burden now as well as being pariahs? Our relationships (apparently, unlike divorced, litigious, marrying-for-green-card staright people) would drain the “scarce resources of both the federal and State governments”?


    Read their reasoning: “. 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”

    Uh… YES.
    President Obama better get a clue. If “we are the change we’ve been waiting for”, why is his administration standing in the way of basic fairness?

  3. doro says

    @STREPSI. i agree that pres Obama better get a clue. but so is the supreme court, the democratic party, the states legislature and most American citizens. Homophobia has been well alive before a 47 year old from iilnois became president. He promised change to a whole lot of people honey and all these groups are still waiting for it. they are all giving him 4 years to bring the change or else we are voting for someone else. Again homophobia started before obama was born. Bush and clinton were presidents also when all these anti gay laws were active. People think this guy is some sort of messiah and thats why they get so emotional when he’s not coming through for us. I have chosen not to place my hopes on obama. i tried with clinton and i was crushed!

  4. carolyne says

    @DORO. Absolutely. I stopped believing in politicians a long time ago thats why i did not vote. I knew that neither Obama nor Maccain would care about me. Clinton was the last guy i voted for and he thanked me for my vote with DADT.

  5. says

    The most laughable is that with our small numbers (~3% of the pop.), our “drain” on the “scarce” resources would be an unnoticeable blip in the budget. And of course, many of the benefits create longer-term savings for the gov’t anyway (e.g., stable, married couples use less gov’t resources).


  6. PM says

    The AMERICAblog analysis makes for spectacularly bad reading regarding the Federal government’s defenses.

    I was especially impressed that the only previous cases of marriages similarly rejected are married-a-minor and married-cousins – classy.

    “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.”

  7. Godfrey Inniss-Palmer says

    The last time I checked the LGBT community paid a disproportionate amount of federal taxes, and took less exemption deductions.

    As long as we pay FEDERAL taxes we should expect EQUAL ACCESS to federal benefits.

    These excuses are just becoming a series of BULLSHIT!

  8. Patrick says

    It’s now more than obvious that this administration, by the filing of this brief, is a declared enemy of the LGBT community. It’s time to ACT UP.

  9. says

    I’ve read that the Smelt case is considered a bad case for us, one we could lose, thus strengthening DOMA. I don’t know if that is true, but I can understand it. What I don’t accept is why the administration could not have explained that to us, and what is really repulsive is the actual language used in defending DOMA. It’s one thing to say, “We are the DOJ, we must defend the law until we can get it changed,” but it’s quite another to delve into right-wing talking points in trying to discredit marriage equality. It’s all being handled very, very badly. It’s disheartening to hear so many gay people who only care about gay issues savaging Obama, but it’s also disappointing that at least on gay issues he’s earning that vitriol more and more day by day.

  10. says

    Yes, despite being tax-payers, we can’t burden the federal government by having some of our own money (i.e. – our tax dollars) trickle down to us.

    In other words – “FUCK YOU, FAGS, but keep paying your taxes”.

    And folks think I’m the “crazy one” for advocating a tax revolt; that’s rich.

  11. Wolfie says

    THIS is eaxactly why WE DO need to March On Washington en mass.

    We need to show we won;t stand for this any longer!

    Oh by the way…someone should remind Barak about this:

    “It’s wrong to have millions of Americans living as SECOND-CLASS CITIZENS in this nation. And I ASK FOR YOUR SUPPORT IN THIS ELECTION so that together we can bring about real change for all LGBT Americans.

    I WILL NEVER COMPROMISE ON MY COMMITMENT TO EQUAL RIGHTS FOR ALL LGBT AMERICANS. As your President, I WILL USE THE BULLY PULPIT to urge states to treat same-sex couples with full equality in their family and adoption laws.

    I support the complete repeal of the Defense of Marriage Act (DOMA). Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does. Americans are YEARNING FOR LEADERSHIP that can empower us to reach for what we know is possible.

    I believe that we can achieve the goal of full equality for the millions of LGBT people in this country. To do that, WE NEED LEADERSHIP that can appeal to the best parts of the human spirit. JOIN WITH ME, AND I WILL PROVIDE THAT LEADERSHIP. Together, we will achieve real equality for all Americans, gay and straight alike.” — Barack Obama (February 2008)

    Fuck you Obama. By the way you weren’t my first choice for the Dems. Actually you were my third.

  12. cecilia says

    @WOLFIE, If he was your third then why are you crying? oh obama you are letting us down…. ohhhh…… and btw you were my third choice? To republicans Obama was not even a choice, therefore you are not alone. fox news is at your corner baby.

  13. DUNCUN says

    Hey WOLFIE, who was you first and second choice, and do they support same sex marriage. From what my old memory remembers, all major candidates did not support gay marriage either. I am a republican who voted for Maccain but the Dems are as homophobic as the republicans. DODT,DOMA all brought to law by a dem president named Clinton

  14. Joey R. says

    Unfortunately, the fact is that when the rational basis test is applied, the DOJ is right. This is why the Supreme Court MUST apply the strict scrutiny test and, in essence (if not in actual words), declare us a suspect class due a great deal of protection. This is what the CA Supreme Court did last year, and what has consistently protected minorities throughout much of modern history. (As for the earlier mention of the heightened scrutiny test: that might have be an avenue as well, but I never really understood it, so I won’t say anything one way or the other.)

    Naturally, though, the whole affair is outrageous, given that we pay taxes like everyone else. But no one in this administration seems to want to admit that…

  15. Michael Bedwell says

    The viability of this case is IRRELEVANT…what IS important is what OBAMA INC. said in reponse to it. Ameriblog, which note FEROCIOUSLY CAMPAIGNED FOR OBAMA BOTH IN THE PRIMARIES & GENERAL, i.e., are NOT “simply bitter Hillary Heads,” went through the brief and summarized each paragraph as quoted below.

    And NO O Inc. did NOT have to defend it. The Clinton Justice Department chose not to fight the court order that the Navy reinstate gay Keith Meinhold. To be fair, they did fight others, but that’s not the point…which is that the government CAN choose which cases to defend.

    And O Inc. CHOSE to AND in ways that make me think even a cynic like me is having a nightmare.


    ” – they argue that the incest and child rape cases therefore make DOMA constitutional

    – DOMA is good because it saves the feds money

    – DOMA is constitutional (thus screwing us on any future lawsuits)

    – “DOMA Is Consistent with Equal Protection and Due Process Principles.”

    – Gays have no constitutional right to marriage, or recognition of their marriages by other states

    – Praises DOMA as “cautiously limited”

    – Sounds to me like Obama just came out against the Loving v. VA case that ensured that people like his parents could marry

    – Gays don’t deserve same scrutiny in court that other minorities get

    – Argues Republican position on how judges should review cases

    – The twisted logic of this paragraph is sickening. Pat Robertson could have written this

    – DOMA is a good thing

    – DOMA is rational and constitutional

    – Provides legal argument against gays’ right to privacy

    – It’s reasonable and rational for Congress to defend “traditional” marriage – in fact, DOMA was actual a very “neutral” law, rather than anti-gay

    – Again, Obama seems to states have the right to ban blacks from marrying whites

    – DOMA is entirely rational

    – DOMA wasn’t motivated by a dislike of gays, silly.

    – Please don’t confuse the gays with the blacks, and other “real” marriages

    – DOMA infringes on nobody’s rights

    – DOMA doesn’t discriminate against gays – all they have to do to get the benefits is get married… to someone of the opposite sex! (This is an argument Obama stole verbatim from the religious right.)

    – Please don’t compare gay marriages to inter-racial marriages” End quote.

    For all my gut feeling that he was a phony, once he got the nomination I still campaigned for him, donated money, because even if he and McShame had had identical positions on everything else, I felt confidant that O would fill any lifetime Supreme opening with someone sympathetic to gay equality.

    Even I never imagined that it would be HIS ADMINISTRATION attacking us in court.

  16. FunMe says

    As my blog guy from AB says … “you messed with the wrong faggot”.

    How horrible of a person Obama has become. SHAME! What would his parents think?

    Amazing. In of all months, June, the 40TH ANNIVERSARY OF STONEWALL we get a “fierce advocate” stab the GLBT in the back. And deep.

    enough with giving excusing.

    When he basically tears down the US Constituion and equates gay marriage to incest. What is this? A US President? He has gone.

    So sad, to start off with a bang, and end up with a whimper all because of his HOMOPHOBIC actions.

    No More Mr. Nice Gay!

    Fight back for your constitional rights. now!

  17. Philip Boncer says

    The Constitution of the United States of America, Article IV, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State …” Says it all right there, in plain English, in words that should be easy to understand even by a “legal mind”.

    But here we have a government that largely ignores the Constitution anyway, and an adminstration that is busy spending our future into oblivion, so why should they care about this?

  18. Andalusian Dog says

    Said it before, I’ll say it again. Write to the White House, explaining your anger and grievances. If we flood their inboxes, we will be heard. And everyone: block your calendars for October – we got some marchin’ to do!

    We’re never giving up this fight.

  19. T. Wolf says

    Wow. Considering MY tax dollars go towards the government, they can’t afford to provide some of those back to me and recognize my marriage?

    Pardon me, but fuçk that. Equal taxes, equal rights. Either that or since gays are second class citizens according to the government, we should be paying much less in taxes.

  20. says

    That’s right T. Wolf, despite paying taxes, the government says it has to protect its SCARCE RESOURCES (i.e. – your tax dollars) to make sure it ONLY gets spent on the HET families…oh…and when your spouse dies you can’t see ’em in the hospital.

    [equality tax revolt]

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