Jul 24, 2009  |  By: Staff & Wire Reports  | COMMENTS     

A federal lawsuit challenging the constitutionality of laws barring same-sex marriage has a new focus now that California is no longer a defendant in the case.

The lawsuit, known as Smelt v. United States, originally challenged the constitutionality of the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage, and Proposition 8, which ended same-sex marriage in California last year.

But on July 15, Judge David Carter of the U.S. District Court for the Central District of California agreed to remove California as a defendant in the case, meaning the lawsuit no longer challenges the constitutionality of Prop 8.

Carter determined that Arthur Smelt and Christopher Hammer, the plaintiff couple that filed the lawsuit, lacked standing to file suit over Prop 8 because they were married when same-sex marriage was allowed in California and their marriage remained valid in the state.

The removal of California as a defendant means that the lawsuit now strictly challenges DOMA. A hearing for the case is set for Aug. 3.

Nan Hunter, a lesbian law professor at Georgetown University, said she wasn’t surprised that California was dropped as a defendant in the case. She said there was a “pretty good chance” that the judge would throw out the DOMA challenge, too, because there are standing issues on the matter.

Smelt v. United States produced last month’s controversial Justice Department brief that infuriated some LGBT Americans. The brief argues in favor of DOMA by invoking case law in which courts have refused to recognize incestuous marriages and marriages between adults and children. The brief also says DOMA “infringes on no one’s rights” because gays have never been considered a suspect class at the federal level.