Federal Judge Dismisses DOMA Suit on Technicality

Marriage neutering advocates Arthur Smelt and Christopher Hammer of Mission Viejo have had their latest attempt to advance the neutering of marriage temporarily deferred. This is a case that has involved federal courts and the DOJ legally defending DOMA, if not enthusiastically. Here's the story from Carol J. Williams of the Los Angeles Times.

Assistant Atty. Gen. Tony West, in his brief filed before U.S. District Judge David O. Carter, agreed with Smelt and Hammer that the Defense of Marriage Act is discriminatory and should be repealed. But West noted that he was obliged to defend the law until Congress moves to repeal or amend it. He urged the court to dismiss the men's suit on grounds that their allegations "fail to state a claim upon which relief can be granted."

Carter agreed, explaining in his seven-page decision that the absence of "an injury in fact" meant the court lacked jurisdiction to consider the broader constitutional questions.

In other words, the court was not saying whether or not DOMA is constitutional.

[More after the jump.]

Smelt and Hammer had also filed suit in California superior court. That action was dismissed earlier this year on similar grounds, as their marriage is legal in California.

Here's Lisa Leff's Associated Press take on the story:

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.

These guys are very persistant. I guess a "married" guy has more free time when he doesn't have a wife around to give him "honey dos".

Monday's action was the latest episode in a five-year legal losing streak for the couple. With Gilbert representing then, they first went to federal court to challenge both the federal law and California's refusal to grant them a marriage license in 2004.

A federal judge ruled against them, and in 2006 the 9th U.S. Circuit Court of Appeals did as well, saying marriage laws were a state matter and that Smelt and Hammer were ineligible to challenge the federal law because they were unmarried and hadn't tried to secure any federal spousal benefits.

The case will be back.