Federal judge dismisses suit arguing the Defense of Marriage Act is unconstitutional

The Obama administration scored a victory of sorts in federal court Monday when a judge threw out an Orange County gay couple's lawsuit claiming that the federal Defense of Marriage Act is unconstitutional.

Just last week a top Justice Department lawyer sought dismissal of the lawsuit on grounds that the couple, Arthur Smelt and Christopher Hammer of Mission Viejo, had failed to identify any personal harm suffered because of the 1996 law, which bars the federal government from treating same-sex marriages as legal or granting federal benefits to same-sex spouses.

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Judge David O. Carter, agreed with Smelt and Hammer that the Defense of Marriage Act is discriminatory and should be repealed.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.

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.

The administration's ambivalence toward same-sex marriage has incurred anger on both sides of the debate. Those opposed to it see the administration's defense of the Defense of Marriage Act as insincere, and same-sex marriage supporters have been disappointed with Obama's reluctance to push the courts to strike down as unconstitutional both the marriage law and the "don't ask, don't tell" policy prohibiting gay men and lesbians from openly serving in the military.

In another potential setback for supporters of same-sex unions, the National Organization for Marriage announced a drive to "Reclaim Iowa," which became the third state to allow same-sex marriage after a state Supreme Court ruling in April.

The organization, opposed to recognizing marriages other than between a man and a woman, appealed for donations to pay for advertisements backing political candidates who support a state constitutional amendment limiting marriage to heterosexual couples.



Times staff writer Jessica Garrison contributed to this report.

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