After five years suing the state of California and the US government to recognize their marriage and overturn the federal Defense of Marriage Act – and loosing – you’d think Arthur Smelt and Christopher Hammer would get a new lawyer, especially if that lawyer wants their lawsuit to lay the groundwork for breaking the Bear Flag Republic into two separate states (via Queerty). This time, Smelt v. United States ran afoul of a legal technicality. A few days ago, US District Judge David O. Carter dismissed the suit because it was first filed in California state court, before it was to Carter’s federal jurisdiction. The federal government cannot be sued in any state court. Richard Gilbert, the couple’s lawyer, told the AP that he had originally filed the current lawsuit in state court after a different federal judge had refused to waive Smelt and Hammer’s court fees, even though both are disabled and live on fixed incomes.

The case has been a lightening rod for many sides of the gay marriage debate, attracting legal help for the government’s case from the Alliance Defense Fund, a conservative Christian organization, as well as divisive legal briefs from the Obama Administration, which sought to get the case dismissed.

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