The Obama administration has prevailed
in its attempt to dismiss a challenge to the federal Defense of
Marriage Act (DOMA), the Los Angeles Times reported.
On Monday, U.S. District Judge David O.
Carter agreed with Assistant Attorney General Tony West, who argued
that the Orange County gay couple married before Proposition 8 banned
gay marriage in California had not been harmed by DOMA because they
had not applied for federal benefits.
West claimed Arthur Smelt and
Christopher Hammer of Mission Viejo had not suffered because of the
1996 law, which defines marriage as a heterosexual union for federal
agencies and allows states to ignore legal gay marriages performed
outside their borders.
Carter's seven-page decision said the
case lacked “an injury in fact,” but also left the door open for
another filing when he said the suit had been improperly filed in
state court. A California superior court judge had dismissed the
couple's challenge on the grounds that their marriage is legal in the
The administration's first brief in
Smelt v. United States said the law did not discriminate
against gay and lesbian couples and was laced with archaic anti-gay
arguments, angering gay leaders and activists.
Arguments in a second filing, however,
were cushioned with a statement that called the law unfair: “With
respects to the merits, this Administration does not support DOMA as
a matter of policy, believes that it is discriminatory, and supports
The flip angered conservatives, who
called Obama's defense of DOMA less than “optimal.”
The Christian-based Alliance Defense
Fund (ADF), which as intervenor in Smelt is also defending
DOMA, promoted the argument that there is a government interest in
An argument Department of Justice
lawyers took a swipe at in their brief, saying: “... the United
States does not believe that DOMA is rationally related to any
legitimate government interests in procreation and child-rearing and
is therefore not relying upon any such interests to defend DOMA's
“It is very disappointing that the
[Justice Department] has rejected the idea that kids do best in homes
with a married mother and father,” ADF attorney Brian Raum told
“They've taken the precarious
decision of defending DOMA while at the same time claiming that it's
bad policy … [I]t is certainly not optimal for the attorney who is
defending a particular law to concede that their clients believe it's
bad policy. I think that's detrimental to the case,” he added.
While the second brief did not include
the original arguments that angered gay activists, they remained part
of the case, having not been withdrawn or altered.
A second, considered more viable,
federal challenge to Proposition 8 – and ultimately DOMA – has
also been filed in California and is being argued by the legal team
of Ted Olson and David Boies. The judge in the case has scheduled a
January 11, 2010 trial date in the case.