Back to Square one for California DOMA Challenge

The Associated Press is reporting that U.S. District Judge David O. Carter has granted the federal government's motion to dismiss the pending lawsuit of Smelt v. United States (U.S.Dist.Ct., Central Dist. Calif.) on the ground that the court lacks jurisdiction to hear the case.  The lawsuit claims that the federal Defense of Marriage Act is unconstitutional, reciting a litany of constitutional provisions.   Judge Carter reportedly accepted the government's argument that because the case was originally filed in state court, it must be dismissed on the ground that the state court has no jurisdiction to hear suits against the federal government seeking declarations that federal statutes are unconstitutional.  (The case ended up before Judge Carter because the federal government's response to the filing of the complaint was to remove the case to federal court, then to move to dismiss it.)   Of course, the federal court would have jurisdiction over such a claim as an original matter, and Judge Carter pointed out as much, indicating that the dismissal is without prejudice to the plaintiffs' right to refile the case as a federal lawsuit.  This means that, at most, there will be a delay rather than an abandonment of the case, because Richard Gilbert, the plaintiffs' lawyer, announced that the suit will be refiled in federal court.

Gilbert is representing Arthur Smelt and Christopher Hammer, a longtime couple who originally filed a federal suit challenging the constitutionality of DOMA many years ago.  That suit came to grief when the U.S. Court of Appeals for the 9th Circuit ruled that they lacked standing to challenge DOMA because they were not married when that lawsuit was undertaken.

DOMA has two operative provisions: Section 2 says that no state is obligated to give full faith and credit to same-sex marriages performed in other states.  Since the Smelt-Hammer couple was not married, this provision did not adversely affect them in any way.  Section 3 says that the federal government will not treat same-sex couples as married for any purpose, even if they are legally married under the law of a state.  (When DOMA was passed in 1996, no state permitted same-sex couples to marry, so this was entirely hypothetical.)  Since the Smelt-Hammer couple was not married, again, the court said they were not adversely affected by the law.  In order to have standing in federal court, a plaintiff must present a "real case or controversy," not a hypothetical case.  Thus, court said that only a married couple could challenge DOMA.

In May 2008, the California Supreme Court ruled that same-sex couples had a right to marry under the California constitution. The ruling went into effect in June 2008, and over the summer of 2008 Smelt and Hammer got married.  Then the public narrowly voted in November 2008 to amend the California Constitution to end the right of same-sex couples to marry there.  A legal challenge was filed to this amendment (Proposition 8), but it was upheld by the California Supreme Court.  However, that court said that Prop 8 was not retroactive, and that the marriages that took place during the period June-November 2008 prior to its enactment remained valid.  Thus, for purposes of California law, Smelt and Hammer are validly married. 

They filed their new lawsuit in December 2008, claiming that now as a married couple they were entiled to challenge the constitutionality of DOMA.  But they filed their lawsuit in state court, because the federal court was unwilling to waive the normal filing fees and the couple, who are disabled and have limited resources, did not want to pay the federal court fees.  One wonders what their attorney, Richard Gilbert, was thinking in filing in state court.   State courts do not have jurisdiction over claims against the federal government, which has only waived its sovereign immunity in specific kinds of cases to be heard in the federal court system.  I'm not sure exactly why the Justice Department did not promptly move the state court to dismiss the case on jurisdictional grounds (could it be that Justice just refuses to get involved in litigation in state courts, even if it just involves a motion to dismiss an errant complaint?), but in any event they removed it to federal court and then moved to dismiss it on jurisdictional grounds, also making the argument (unnecessary and, unfortunately, quite provocative) that DOMA is constitutional.  (In my opinion, they are wrong as to the constitutional argument, but I agreed with their jurisdictional arguments.)  Indeed, their brief in support of the motion was so provocative on the merits that it threatened to alienate gay supporters of the Obama Administration.  The President then made nice at a Gay Pride reception at the White House, and when the government filed its reply brief to the plaintiffs' responsive brief on the motion, the White House issued a statement reiterating the President's commitment to repeal DOMA.

This dismissal is merely a speed-bump, since clearly the federal district court would have jurisdiction over a case filed directly in that court.  Furthermore, at the very least I think it should be possible for Smelt and Hammer to file a suit that appropriately alleges some deprivation of rights under federal law attributable to Section 3 of DOMA. (In support of its dismissal motion, the Justice Department argued that an alternative ground for finding lack of standing was the failure to allege in the complaint with any particularity that Smelt and Hammer had actually been adversely affected by DOMA.)   It might be more difficult for them to assert a claim against Section 2, in part because - at least this is my belief - Section 2 does not have any real operative force and is purely symbolic, as the states have always had the right to refuse to recognize marriages that violate their public policy, so if Smelt and Hammer were to travel to another state and demand some form of recognition, Section 2 of DOMA would not be the reason they are turned down.

Comments

[vincent p. mccarthy]

Aren't states required to give ff&c to judgments of sister states under Baker regardless of their public policies?

[Art Leonard]

Yes, full faith and credit must be given to JUDGMENTS. But the issuance of a marriage license is not a judgment, as that term is used in this context. A clerk issues a license to anybody who fills out the form correctly and pays the fee. No judgment is involved in the nature of a court decree. Thus, full faith and credit must be given, with no public policy exceptions, to adoption or divorce decrees -- these propositions are well-established -- but if you take a look at a large number of marriage recognition decisions, you may be surprised, as I was when I first researched the issue, to see very little mention of the FFC clause, and that the courts conducted an analysis using common law rules of marriage recognition ground in comity principles that allowed refusal to recognize if there was some affirmative state policy that would be undermined or violated by such recognition. Thus, marriage recognition has always had a more discretionary character, and familiarity with the case law would suggest that Section 2 was unnecessary to allow states to avoid recognizing same-sex marriages from other states.