From the Lisa Leff with the AP:
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.
“There is no point for us to go down the line of decision-making and waste time,” he said during the hearing in Santa Ana.
This was the challenge that led to the now-infamous Department of Justice Motion to Dismiss on June 12, which led to the President’s Oval Office ceremony on June 17 and speech about LGBT equality at a White House reception on June 29. Just this past week, DOJ filed a far-less-overreaching reply brief in the case.
The Smelt case was filed in California state court and then removed to federal court contained claims, among other areas, regarding interstate travel and how DOMA impacted the plaintiffs’ travel. This, of the four federal court marriage challenges, was the weakest, by far. It had the procedural problems that led to today’s dismissal and contained weaker arguments based on less clear areas of the law.
Three other cases remain active in federal court.
The Gay & Lesbian Advocates & Defenders recently filed an amended complaint in its Massachusetts federal court challenge to Section 3 of DOMA, Gill v. Office of Personnel Management et al. This is a strong complaint challenging a specific portion of DOMA, the federal definition of marriage — which prohibits federal recognition of those same-sex couples legally married within a state. The Justice Department’s Answer or Motion to Dismiss is due in mid-September.
The related case filed by Massachusetts Attorney General Martha Coakley, Massachusetts v. United States is, similarly, a Section 3 DOMA challenge, and presents the unique state harms that DOMA forces upon Massachusetts and other states that recognize same-sex marriage.
The final marriage case in federal court, Perry v. Schwarzenegger, is not, technically, a challenge to DOMA — but could have a more far-reaching impact on DOMA than the other two challenges. Perry is a challenge to Proposition 8, but its claims — that Proposition 8 violates the Equal Protection and Due Process clauses of the U.S. Constitution — would render both Sections 2 and 3 of DOMA without a leg to stand on following a successful outcome in Perry. This is the case brought by Ted Olson and David Boies on behalf of the American Foundation for Equal Rights and for which the LGBT legal organizations will not be counsel. Trial is set for January 11, 2010, but there will be much action in the case between now and then.
Georgetown Law Prof Nan Hunter raised some excellent questions this weekend about the Perry suit. Among them:
What will the ramifications (if any) be of placing the control of one of the biggest ever lgbt rights lawsuits in the completely private, non-transparent realm of big firms?
Check it out.
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
“What will the ramifications (if any) be of placing the control of one of the biggest ever lgbt rights lawsuits in the completely private, non-transparent realm of big firms?”
Er, have they been any less transparent than the various non-profits are about their litigation strategies?
Any comments, Chris, on the weird statements by the Smelt lawyer? about wanting to break up california into two states?