DOJ moves to dismiss what SF Chronicle mistakenly calls "first federal gay marriage case." A preview of how DOJ will respond to Gill et al v. OPM?

06/12/09 SF Chronicle:

This article concerns the U.S. Department of Justice's motion to dismiss Smelt v. United States with respect to its claims for relief from Sections 2 and 3 of the federal DOMA. Under Section 2 (28 U.S.C. § 1738C,), the Act allows a states to recognize only the out-of-state marriages of heterosexual couples. Under Section 3 (1 U.S.C. § 7), it restricts federal marrital benefits to heterosexual couples. The report has several significant mistakes and omissions.

First, this is not "the first gay marriage case filed in federal court." Other pending federal lawsuits either challenge state constitutional bans on same-sex marriage, or (like Smelt) challenge such bans and the federal DOMA, even if the DOMA challenge has not survived summary judgment. Based on news reports only, I have tried to identify pending federal lawsuits to challenge state constitutional restriction of marriage to heterosexual couples. [The U.S. Supreme Court dismissed the earliest federal challenge to a statutory restriction in Baker v. Nelson, 409 U.S. 810 (1972) (statutory restriction raises no substantial federal question about respect to right marry, whether that question involves due process or equal protection).] Until June 6th, Bishop et al v. State of Oklahoma et al (N.D.Okl. 4:2004-cv-00848) represented the earliest pending federal challenge to a "marriage protection amendment" (and a federal DOMA, although the DOMA challenge did not survive summary judgment.) On June 6th, the 10th Circuit ruled that the plaintiffs do not have standing to sue. (I have compiled a list of pending federal lawsuits challenging state constitutional bans on same-sex marriage.)

Second, DOJ bases its motion to dismiss upon lack of standing to sue under the federal DOMA, and claims that plaintiffs have not shown why the federal DOMA does not merit a presumption of constitutionality. According to the Chronicle, the Smelt compalint does not also allege that Prop. 8 violates the U.S. constitution.

In fact, the Smelt complaint also purports to challenge the federal constitutionality of Prop. 8. (See Compl., ¶ 29.) The Chronicle reporter even notes that

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.

In its motion to dismiss, the California Attorney General acknowledges that the complaint alleges federal constitutional violations by Prop. 8, even as the Attorney General asks the Court to dismiss the complaint for lack of standing:

Plaintiffs have not suffered an “injury in fact” [required for standing to sue] because Proposition 8, as interpreted by the California Supreme Court [in Strauss v. Horton], has no effect on their marriage [Their marriage was licensed before Prop.8's adoption, and the Strauss Court upheld such marriages.] ... The fact that unmarried same-sex couples might [and, in fact, do!] have sufficient standing to challenge the constitutionality of Proposition 8 does nothing to confer standing on Plaintiffs.

Finally, the Chronicle fails to identify the much more credible challenge to Section 3 of the federal DOMA, Gill et al. v. Office of Personnel Management et al. (D. Mass. filed Mar. 3, 2009). DOJ's motion may afford insight on how it will respond to Gill's formidable equal protection challenge.

06/12/09 AP:

LOS ANGELES (AP) -- Gay rights groups expressed dismay with the Obama administration Friday over its championing of the Defense of Marriage Act, a law the president pledged to try to repeal while on the campaign trail.