Justice Dept. Moves to Dismiss Challenge to DOMA

The U.S. Department of Justice filed a motion Thursday to dismiss a gay couple's lawsuit challenging the federal Defense of Marriage Act.

The motion argues that the plaintiffs, Arthur Smelt and Christopher Hammer, lack standing to bring the challenge in federal court and that it is not the right venue to hear the case.

The motion states that the right at issue in this case is not a right to marry considering the federal government does not issue marriage licenses or determine who can marry.

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"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," attorneys for the Justice Department state.

Rather, the questions posed in this case are whether their marital status must be recognized by other states where same-sex marriage is illegal and whether they are entitled to certain federal benefits.

"Under the law binding on this Court, the answer to these questions must be no."

The motion also argues that the gay couple, whose marriage last July was kept intact by the California Supreme Court, have failed to allege that they have actually been denied any rights or benefits as a result of DOMA – which defines marriage as a legal union between one man and one woman for purposes of all federal laws, and provides that states need not recognize same-sex marriages from another state.

"Indeed, as noted above – and as evidenced by the fact that plaintiffs have married in California – DOMA in no way prohibits same-sex couples from marrying," the motion states.

Smelt and Hammer filed a lawsuit in December 2008, claiming that both Proposition 8 – California's constitutional amendment defining marriage as between a man and a woman – and the federal DOMA violate the U.S. Constitution, specifically the Equal Protection Clause.

The suit was filed after they obtained a marriage license in California during the short period same-sex marriage was legal last year. The state Supreme Court had legalized marriage for gay and lesbian couples last May. The decision was overruled in November when voters passed Proposition 8. Last month, the state high court ruled to uphold the amendment while keeping intact the 18,000 same-sex marriages – including that of Smelt and Hammer – that took place before the November vote.

The Department of Justice has asked that all of the plaintiffs' claims against the United States be dismissed.

Alliance Defense Fund attorney Brian Raum plans to join in the motion.

"We're confident that the arguments the U.S. government is making are correct," Raum told The Christian Post. "Hopefully, the court will dismiss [the case]."

"The plaintiffs say DOMA violates the Constitution and no federal court found that to be the case so far," he added.

Another lawsuit on behalf of two same-sex couples is pending in federal court. Top litigators Theodore B. Olson and David Boies are challenging Proposition 8 on federal grounds, arguing that it violates the U.S. Constitution's guarantees of equal protection and due process of the law.

The Alliance Defense Fund filed a motion to intervene.

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