Marriage Defeat Cheers Advocates

Federal appeals court abstains on California marriage case; vacates ruling upholding DOMA

A California same-sex couple suffered a setback in their campaign for marriage—but gay public interest legal groups scored a win—when the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled on May 5 in the appeal of an earlier decision by District Court Judge Gary Taylor.

The appellate court found that Taylor had been correct to abstain from deciding on the merits of whether California’s denial of a marriage license to Arthur Smelt and Christopher Hammer violated their constitutional rights. At the same time, it ruled that Taylor should not have declared the Defense of Marriage Act (DOMA) to be constitutional because the couple lacked standing to raise that question for judicial review.

Smelt and Hammer, buoyed by the euphoria following the U.S. Supreme Court’s sodomy decision in Lawrence v. Texas as well as the Massachusetts Supreme Judicial Court’s same-sex marriage decision—both in 2003—decided to bring their own lawsuit in federal court against Orange County, California, for refusing to grant them a marriage license. The couple had registered as California domestic partners in 2000. LGBT public interest law firms urged them not to file suit, but they went ahead anyway, represented by private counsel, Richard C. Gilbert and Diane J. Marlowe of Gilbert & Marlowe, a Santa Ana law firm.

Smelt and Hammer attacked both California’s marriage law, which had been amended by a 2000 ballot measure to expressly limit marriage to opposite-sex couples, and DOMA, a federal statute that relieves states of any obligation to recognize same-sex marriages performed in other states and defines marriage for all purposes under federal law as limited to couples made up of a man and a woman.

Taylor found that in light of the same-sex marriage litigation going on in the California courts, the federal court should abstain from deciding the marriage question, because it presents important public policy questions that might soon be fully resolved under state law.

So far in the state case, a trial judge in San Francisco has ruled that the restriction in the marriage law violates the California Constitution, and the state’s appeal is being considered in the court of appeal, whose decision, regardless how it turns out, will be appealed by one side or the other to the state Supreme Court.

Taylor also refused to rule on the interstate marriage recognition part of DOMA, finding that since Smelt and Hammer had not been married in any other state, they did not have standing to challenge DOMA’s provision on that point.

But Taylor did rule that the other part of DOMA—under which the federal government recognizes only opposite-sex marriages—was constitutional, following the course previously charted by a federal bankruptcy judge in Washington State and a district court judge in Florida.

The appellate panel issued an opinion by Circuit Judge Ferdinand F. Fernandez, holding that Taylor had correctly abstained from deciding the marriage question and appropriately refused to rule on the constitutionality of the interstate recognition part of DOMA.

Most significantly, however, the appellate court found that it was inappropriate for Taylor to have ruled on the federal definition part of DOMA, because Smelt and Hammer were in no position to challenge that.

“Smelt and Hammer are not even married under any state law,” Fernandez wrote, “or, for that matter, under the law of any foreign country. No doubt they wish they could be, but, again, they are not. We, therefore, do not see how they can claim standing to object to Congress’ definition of marriage for federal statutory and regulatory purposes. It certainly is not a question of Congress’ refusal to recognize their status. DOMA itself simply does not injure them or exclude them from some undefined benefit to which they might have been or might someday be entitled. In fact, they do not suggest that they have applied for any federal benefits, much less been denied any at this point. That they might someday be married under the law of some state or ask for some federal benefit which they are denied is not enough.”

The U.S. Constitution does not authorize federal courts to issue advisory opinions, or to evaluate the constitutionality of statutes unless somebody who can allege actual harm from the operation of the statute raises the question in a lawsuit. Unlike some state courts, federal courts are limited to deciding cases where somebody credibly alleging a personal injury brings the matter to the court.

Gay rights litigation groups, representing Equality California, the gay rights lobbying group there, filed an amicus brief strongly arguing that the question of DOMA’s constitutionality was not properly before the federal court in this case, so the court’s determination, which vacates Taylor’s decision upholding DOMA, is a victory in the sense of wiping that decision off the books. The leading gay rights litigation groups—including Lambda Legal, Gay and Lesbian Advocates and Defenders, the National Center for Lesbian Rights, and the American Civil Liberties Union—are now focused on winning the right to marry under state constitutions, and strongly prefer to avoid bringing the question of DOMA’s constitutionality to the Supreme Court prematurely.

The appellate court decision leaves for another day, at least in the 9th Circuit, the question of whether a same-sex couple lawfully married in California would be entitled to claim recognition of that marriage in other states or by the federal government.

Several days before the federal ruling, Smelt and Hammer enjoyed better luck in another lawsuit they had filed, in California state court, seeking to get their domestic partnership reinstated. In common with some other California domestic partners, Smelt and Hammer dissolved their domestic partnership before new provisions went into effect on January 1, 2005 because they thought the additional responsibilities imposed by the final version of the state law were unduly onerous.

However, fearing that that the dissolution of their partnership might prejudice them in the ongoing federal case, in August 2005, they petitioned to set aside the termination, but Orange County Superior Court Judge Nancy Pollard ruled that she did not have jurisdiction to award that sort of relief. On May 2, the California 4th District Court of Appeal ruled that Pollard was wrong and returned the case to Orange County Superior Court for a ruling on the merits. Now that it appears the Smelt/Hammer federal marriage case is at a standstill, they at least have an opportunity to reinstate their domestic partnership in state court.

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