Federal Challenge to DOMA Thrown Out

The Los Angeles Times is reporting that a federal challenge to the 1996 Defense of Marriage Act (DOMA), launched by a gay couple from Orange County, was thrown out on Monday on the grounds that the couple could not demonstrate that the law had caused them to suffer.

DOMA, which bans the Federal Government from recognizing gay marriages and instead mandates that a definition of marriage be left to individual state law, was enacted by the Clinton Administration to protect against the possibility that Hawaii, at the time, may have been on the cusp of granting gay marriage.

Under the Full Faith and Credit Clause of the United States Constitution this may have meant that other states would have been compelled to recognize such unions.

DOMA was a reactionary measure to prevent this, and has long been campaigned against by gay rights groups calling the legislation unfair and discriminatory because of the restrictions it places on their unions, and also the benefits that they are denied by their marriages not being recognized by federal law even if they are recognized as married by their state.

The case in question involves disabled gay couple Arthur Smelt and Christopher Hammer who were married in California during the brief interim between voter approved marriage bans. Their case argued that DOMA was discriminatory, that it caused them undue suffering, and that the law should be repealed.

A brief filed by the Obama Administration in an adjoining case earlier this year defended the Defense of Marriage Act vehemently, and in fact argued that such a ban was good for America.

This caused outrage amongst gay rights supporters, as they perceived the brief to be in direct contradiction to President Obama’s nomination campaign where he had personally called the law discriminatory and promised to work toward a repeal.

Last week, however, a follow-up brief was issued. The brief contained much more apologetic language than the first and clarified that the Department of Justice and the Obama Administration regarded DOMA as discriminatory, that they supported a repeal of the law in fact, but that they were obliged to defend the constitutionality of DOMA in the face of legal action. To read more on the DOMA follow-up brief, please click here.

Assistant Attorney General Tony West defended the constitutionality of DOMA against the Smelt case in the following way: that because Arthur Smelt and Christopher Hammer had failed to prove “an injury in fact” because, even though they weren’t allowed to claim federal benefits they had made no actual attempt to do so, they had “failed to state a claim upon which relief [could] be granted”.

U.S. District Judge David O. Carter agreed with that assertion, but importantly also said that the case had been improperly filed (having first been brought to a state court) and because of this, the court could not consider the broader constitutional merits of the lawsuit.

Richard Gilbert, the couple’s attorney, has taken this as a positive sign because it points to a clear course of action, saying that he and his clients would resubmit the case in due course.

As this Advocate article details, this is not the first time that Smelt and Hammer have fought DOMA. Back in 2004 they filed a similar suit both federally and at state level. They lost. An appeal was sought, but in 2006 that also failed. Why? Because the judge said that the couple could not challenge DOMA, a federal marriage definition, because, at the time, they were unmarried and thus had no grounds to object. A technicality to be sure.

The couple are married now, but they’re still being disallowed their challenge. Why? Well, because of more technicalities, really. But could this be a positive sign that in order to defend DOMA such minor details are being relied upon?

There are a number of legal cases currently filed against DOMA, including a Massachusetts suit which argues that DOMA violates a state’s right to define marriage as it sees fit because it imposes restrictions on what benefits (such as medicare) the state can allot. For a list of other benefits and legal protections DOMA denies married lesbian, gay, bisexual and transgender couples, click here.

Of course, we will keep you updated on each case as it progresses, but you can take action right now.

President Obama has said that he wants to work in tandem with Congress in repealing the Defense of Marriage Act, so letting your Senators and Representatives know that you want DOMA repealed is vital.

Sign this Care2 petition calling for a repeal of DOMA today.

Photo used under the Creative Commons Attribution License; image found through Google Image Creative Commons Search, no infringement intended.

Disclaimer: The views expressed above are solely those of the author and may not reflect those of
Care2, Inc., its employees or advertisers.

Harry C.

7:14PM PDT on Sep 3, 2009

"Harry, you seem to think that the definition of marriage as practiced through history is merely cultural. Reading the scriptures shows that it is G-d's idea. 'A man shall leave his father and mother and cleave to his wife and the two shall be one.'"

I would not say marriage is "merely cultural." As I noted before, if love finds its origin in the G-d of love, as we Christians believe, loving relationships are of G-d regardless of the sex of the members of those relationships. That some Christians are unable to consider that speaks more to their own heterosexist bias than anything about G-d. Indeed, I believe that legitimating our prejudices by placing them in the mind of G-d is a form of blasphemy.

Where marriage becomes cultural is the manner in which it is practiced. Until 1967, the same arguments you and others are making about same sex marriage were being made about interracial marriage. And the law discriminated against interracial couples in much the same way same sex couples are discriminated against today until Loving v. Virginia struck down those laws.

As for scripture, all of us are selective in the verses we hold out as the bottom line. You might read what G-d thought about a same sex relationship between a certain future king of Israel and his male lover whom "David loved more than women," according to the scriptures. As for me, "Love your neighbor as yourself" is my bottom line. And that credo is simply irreconcilable with discrimination of any kind.

send a green star

Muis K.

10:37AM PDT on Sep 1, 2009

Harry, you seem to think that the definition of marriage as practiced through history is merely cultural. Reading the scriptures shows that it is G-d's idea. "A man shall leave his father and mother and cleave to his wife and the two shall be one."

Past Member .

1:31PM PDT on Aug 27, 2009

Correction:

Fingers crossed that ELIMINATING the Jim Crow of marriage laws will be another step in the march toward civil rights in America.

Whoops :^)

1:27PM PDT on Aug 27, 2009

Hi Mau,

Yeah; sorry about the continuing descrimation in an otherwise great country. It affects everyone, but Gay Americans seem to be the only subset of our people whose rights are taken from them by law. Sickening is an understatement.

Screw all the rhetoric and lame "rationalizing." We know these laws are motivated by religious belief; DOMA's authors and champions were all Bible thumpers. I mean come on; get real. We don't have to be geniuses to know that the Chinese wall between Church and State came tumblin' down Jericho style with this POS DOMA law.

Hopefully President Obama will be vigorous. The President is a constitional scholar in addition to be sworn to protect and defend it from enemies foreign and domestic. That DOMA is a POS in not new information to our president, surely. Fingers crossed that the Jim Crow of marriage laws will be another step in the march toward civil rights in America.

Then this otherwise great country will be greater still.

IMHO,

Jim

Nightcat M.

12:48PM PDT on Aug 27, 2009

Jeezels. Gays and lesbians being able to marry is not going to hurt straight married couples. 50% of whom divorce anyhow. What happened to an America free to all Americans? Also what happened to seperation of church and state?

You go, Marty! You are just the way God made you. No one has a right to keep you from marrying whomever you want. You can at least get handfasted (our form of marriage ceremony) in the pagan community.

Heck we have gay gods and lesbian goddesses. We sure ain't going to stop those who are their "children" from living as a couple.

Signed the protest form, and thanks for the lovely article. Honestly how ignorant our gov't can get is appaling. Considering the tomcat who opposed GBLT marrige jumped any woman he wanted he's no example of Christian anything.

Jim, I agree with you 100%. Americans however don't seem to kick much when our rights are violated. Until of course it is too late, and the laws are rewritten against us.

Of course we are also supposed to have freedom of religion, including not choosing one, and we can see how well that worked out.

Hateful people need to get a life or stay off of the Internet.

12:23PM PDT on Aug 27, 2009

America should do this (as many other countries do):

1. Civil unions that are required and recognized in the eyes of the State, for all citizens, without discrimination based on gender (separation of church and state)

2. Church-goers, if they so chose, can have ceremonies in the eyes of their god/idol/whatever, in any way they see fit and with whatever limits they want (freedom of religion)

Simple. Same rights and freedoms for all Americans, free from discrimination. No unique or special priviledges for me, a straight male (equal protection clause in 14th Amendment)

Religion, by law, should not influence in any way, shape or form, the State's definition of a union. Period.

And the State should not influence in any way, shape or form the Church's definition of a union, except as it relates to protecting individual rights (no human sacrifice, pedophilia, etc.) Period.

That's the law in this country. DOMA is an abomination and violates the rule of law in America whether or not our stacked Supreme Court strikes it down or not. It's wrong, period.

Jim

6:41AM PDT on Aug 27, 2009

Muis said "David, I hold to the same definition of marriage that you do! I do believe it is sacred and blessed of God. I know that those of a different persuasion feel we are judging them, and I do believe we need to leave the judging up to God."

I, too, believe marriage is sacred and blessed of G-d. If G-d is love, as we Christians profess, all loving relationships have their origins in G-d. However, the question here is not whether G-d blesses human relationships, it's whether human beings are willing to do the same.

Prejudices and the discrimination that flows from them are by definition social constructions. Prejudices prevent us from seeing the image of G_d on the face of the other. Prejudices prevent us from treating the other with the dignity and respect the image of G-d demands.

It is quite possible to appreciate the divine origins of love, loving relationships and thus marriage and refuse to do so through the lenses of socially constructed prejudices. Indeed, it is impossible to simultaneously love one's neighbor as oneself and practice discrimination against them.

I tend to define sin as violation of relationship. While I do not make a judgment myself, I readily challenge those who confuse religion with socially constructed prejudices. And I challenge them to consider their own prejudices which they place in the mind of G-d might actually be the sin they would see in others. As you said so well, "One's conscience should inform one's behavior..."

Marty H.

5:02AM PDT on Aug 27, 2009

No person has the right to decide what adults can and can not marry. No church has to carry out any marriage services for anyone they do not want to. Marriage licenses are issued by the state not the churches, at least here.
My God makes it clear He and only He is our judge. God is Love. According to The Bible, sin is transgression of the law, the law is the 10 commandments. I see no commandment concerning same sex love. When Jesus was asked which were the most important, He said love God above all with all your heart and might and love your neighbor as yourself.

If you studied your own Bibles you would know this. God does NOT hate GLBT people for heavens sake! He makes us the way we are.

10:57PM PDT on Aug 26, 2009

David, I hold to the same definition of marriage that you do! I do believe it is sacred and blessed of God. I know that those of a different persuasion feel we are judging them, and I do believe we need to leave the judging up to God. One's conscience should inform one's behavior, of course many people in the world think truth is relative and that they can define terms whatever way they like. But in any case, call those unions something else, don't redefine the word marriage. Liberals are constantly wanting to redefine terms and these terms lose their meaning. (Even a woman's right to choose whether to bring her baby to term endangers the most vulnerable.)

Not everything is subject to change. The sun still rises in the East and sets in the West. The seasons still exist, and there is still gravity. These "agents of change" do not always think things through, but want what they want. In the end God is the judge of all.

roberto c.

8:04PM PDT on Aug 26, 2009

Im a big supporter of DOMA but as someone mentioned earlier marriage does not need to be defended it should be as the constitution says a civil right and everyone should have it and we should all obey it IM TIRE of this hatredness and christians spreading all their hatredness and using god and their so called bible as excused to go against homosexuality my ? is why? why? IM glad i belong to a religion that believes everyone should be equal and who believes that every human being should have the same and all rights as the rest and who stands on the side OF LOVE LIKE ME not in the side of HATE