08/24/2009
Judge Dismisses DOMA Case Which Inspired Offensive DOJ Brief
A judge has dismissed a federal case challenging the Defense of Marriage Act brought by Orange County couple Arthur Smelt and Christopher Hammer, the AP reports:
"U.S. District Judge David O. Carter ruled the case - the first of several pending challenges to the federal Defense of Marriage Act - must be refiled in federal court.
Carter said the suit had been improperly filed in state court before it was transferred to his jurisdiction. As a result, the judge said, he would not entertain arguments on its merits, at least not yet. 'There is no point for us to go down the line of decision-making and waste time,' he said during the hearing in Santa Ana.
The case, brought on behalf of a gay Southern California couple, argues that the Defense of Marriage Act, or DOMA, violates the U.S. Constitution by discriminating against gay men and lesbians."
In June, the Department of Justice filed a brief asking the Court to dismiss the case, saying the case did not address the right of gay couples to marry but rather questioned if their marriage must be recognized nationwide by states that have not approved gay marriage. However, language in the brief was widely criticized for going too far, and inspired a boycott of an LGBT Democratic fundraiser.
Now, the case has been dismissed, it appears, on a technicality.
Posted 6:31 PM EST by Andy Towle in Barack Obama, DOMA, Gay Marriage, News | Permalink
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Well, this sounds like a good opportunity.
As I read the story here, the plaintiffs were invited to re-file their complaint.
This will also give the Justice Department an opportunity to re-brief their defense. When they do so, hopefully their arguments will more accurately reflect Obama's position that he supposedly believes that DOMA is "abhorrent."
Posted by: Bryan Blumberg | Aug 24, 2009 8:17:46 PM
Sometimes I wish these small time gays would just let those with real legal expertise and understanding do the heavy lifting, and stop trying to get their 15 minutes at the expense of the rest of us. These queens haven't got a shot in hell.
Posted by: Ray | Aug 24, 2009 8:51:00 PM
Ray, those Queens forced a really ugly brief that energized the civil rights struggle quite a bit.
I would have agreed with you 6 months ago, but, now I feel that we must keep a relentless drumroll of lawsuits and publicity going till we are fully equal.
Posted by: Derek Washington | Aug 24, 2009 10:27:07 PM
Questions of jurisdiction may be technical but they are not trivial.
If you're going to sue to overturn a federal law, it sounds like you should do it in federal court.
Posted by: Chris | Aug 24, 2009 10:28:39 PM
This was expected and they'll lose in federal court if they don't repair their case. So far the plaintiffs have suffered no damages other than their anticipation of what might happen if they take various actions. Anticipation doesn't cut it. It's a complete contrast with the GLAD plaintiffs who have actually tried to file joint tax returns, get survivor benefits, etc., and the Boies plaintiffs who've been denied marriage licenses.
Posted by: BillyBoy | Aug 25, 2009 10:38:26 AM