BY Michelle Garcia

August 24 2009 3:10 PM ET

The lawsuit that spurred a hefty Justice Department document defending the federal government's ban on recognizing same-sex marriage was dismissed on Monday due to a technicality.

According to the Associated Press, U.S. district judge David O. Carter ruled that the first of several challenges to the Defense of Marriage Act was improperly filed in a state court before it was advanced to federal courts.

Richard Gilbert, the attorney representing the plaintiffs, said they planned to file the case again. His clients, Arthur Smelt and Christopher Hammer, are disabled and live on fixed incomes. Gilbert said he only took the case to a state court after a federal judge rejected their request to waive court fees.

Smelt and Hammer have been battling marriage bans since 2004, when they first fought the laws both federally and on the state level in California. They lost that case as well as their 2006 appeal, when a judge said they could not challenge federal marriage laws because they were unmarried.

Since then, the couple wed in California during the five months that same-sex marriage was legal, and then relaunched their legal battle after California passed Proposition 8.

In June, the U.S. Justice Department under President Obama filed a document defending the federal law, as is procedural in most government cases. This was seen as a major blow from the president, who campaigned on the message that he would support DOMA's repeal. Last Monday, the president issued a qualifying statement when the Justice Department submitted similar papers defending DOMA in Smelt v. United States.

"I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits," Obama said in the statement. "While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law."

The case comes at a time when a handful of states honor marriages between same-sex couples, or are in the process of doing so after court decisions and legislative battles.













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