Gay Couple Lacks Standing to Challenge Federal Law On Same-Sex Marriage, Ninth Circuit Says

Monday, May 8, 2006

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Gay Couple Lacks Standing to Challenge Federal Law On Same-Sex Marriage, Ninth Circuit Says

From Staff and Wire Service Reports

A gay couple prohibited from marrying under California law lack standing to challenge the Defense of Marriage Act, and the District Court properly abstained from considering their claims that California law violates the California Constitution, where the issue isan issue presently before the California state courts, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Arthur B. Smelt and Christopher D. Hammer filed suit in the U.S. District Court for the Central District of California, claiming that California Family Code Secs. 300, 301, and 308.5, which prevent same-sex couples from marrying, violate the California Constitution. They also claimed that the federal Defense of Marriage Act violates the U.S. Constitution.

Judge Ferdinand F. Fernandez, writing for the court, found the abstention of the state law claims was proper under a three-part test. First, Fernandez found that the claim touched a sensitive area of social policy which the federal courts ought not to enter unless no alternative to its adjudication is open.

The judge wrote that it was “difficult to imagine an area more fraught with sensitive social policy considerations in which federal courts should not involve themselves if there is an alternative.”

The judge then also noted that the resolution of the issue in the California courts could decide the issue without the need for federal adjudication, and, finally, t hat the federal courts could not predict with any confidence how the California Supreme Court would decide the issue.

Judge Fernandez also held that the couple lack standing to challenge DOMA. Section Sec. 2 of DOMA, Ferdinand Fernandez explained, in effect, indicates that no state is required to give full faith and credit to another stateís determination that ìa relationship beween persons of the same sex . . . is treated as marriage.î The insurmountable hurdle for the couple, Ferdinand Fernandez explained, is that no state has determined that they are married.

Thus they lack standing to challenge the Sec. 2 of the act.

Sec. 3 of the act defines marriage for purposes of federal statues, rules and regulations and including ìonly a legal union between one man and one woman as husband and wife.î Again, since no state has determined that the couple is married, and since the couple has not applied for and been denied any federal benefits as a married couple, Ferdinand Fernandez saw nosaid there was no way that they could claim standing to object to Congressí definition of marriage for federal purposes.

Fernandez was joined by Judge Sidney Thomas and Senior Judge Jerome Farris.

The federal lawsuit exposed a rift in the same-sex marriage movement, with major civil rights groups opposing it because it could have led the U.S. Supreme Court to throw out assertions that it was unconstitutional to treat homosexuals differently from heterosexuals.

Jon Davidson, legal director of the Lambda Legal Defense and Education Fund, was relieved by Friday’s decision.

“For us, the battle is still under way in state courts, which is where we believe this should be, and the Ninth Circuit agreed with us,” Davidson said.

Lambda, the American Civil Liberties Union and other civil rights groups are waging gay marriage battles in several states, including California, Iowa, Washington, New Jersey and New York. Without more states recognizing same-sex marriage, Davidson said, the movement today does not have a chance before the U.S. Supreme Court.

Smelt and Hammer, who are both 46, did not immediately return a message left at their Mission Viejo house. Their attorney, Arthur Gilbert of Santa Ana, was not immediately available.

Despite recent polls showing Americans increasingly accept same-sex marriage, the movement has seen a backlash in the two years since Massachusetts issued marriage licenses and San Francisco Mayor Gavin Newsom made a short-lived attempt to allow gays and lesbians to marry at City Hall.

Since 2004, more than a dozen states have approved constitutional bans on same-sex marriage and 19 now outlaw the practice. Voters in about six states could be asked to amend theirs similarly this year.

A San Francisco Superior Court has already declared the marriage ban invalid, but the decision has been stayed pending appeal.

Judges Jerome Farris and Sidney R. Thomas joined in the opinion.