Low-Profile Marriage Law Pioneers

An unassuming Mission Viejo couple, self-described homebodies in baggy jeans and bifocals, don’t give the immediate impression of being at the forefront of the same-sex marriage movement.

And, being the first Californians to file a federal lawsuit challenging state and federal marriage laws, Christopher Hammer and Arthur Smelt have found themselves at odds not only with those who think same-sex marriage is unlawful but also with the nation’s largest gay-rights organizations.

“I’m not a sign-carrying, marching, protesting kind of person,” said Hammer, 44. “I see us as normal people, like Rosa Parks, standing up for a basic civil right.”

He and Smelt, who met through a dating service in January 1996, have twice been rebuffed this year in their attempts to get an Orange County marriage license. They filed a lawsuit -- the fourth case of its kind nationwide -- on Sept. 1 against the county of Orange and the county clerk, their attorney said Thursday.

Attorneys with the county counsel’s office did not immediately return calls seeking comment about the pending action.

Richard C. Gilbert, a Florida attorney who has filed theirs and three similar federal lawsuits, says bypassing the state courts is the most direct route to the U.S. Supreme Court -- which would have the final say on the issue.

But groups such as the American Civil Liberties Union, Lambda Legal and the National Gay and Lesbian Task Force have taken a different strategy, challenging state marriage laws or state constitutions rather than federal ones. Many oppose such federal filings, saying they will probably result in bad case law and sidestep the state courts they feel are more progressive.

“History has shown that civil rights advances are most likely to occur first in state courts, so we think that’s the wiser course,” said Jon W. Davidson, senior counsel at Lambda Legal’s Los Angeles office. “The U.S. Supreme Court has signaled that they’re not ready yet to rule on marriage, so one of the ways we can get them ready is by winning in state courts under state constitutions.”

Four state lawsuits on the constitutionality of the California law, which requires that a marriage consist of a man and a woman, will most likely reach the state Supreme Court within two years, legal observers say.

That court ruled Aug. 12 that San Francisco’s mayor overstepped his authority by issuing same-sex marriage licenses and nullified the roughly 4,000 city-sanctioned marriages of gay and lesbian couples that took place this spring.

Smelt and Hammer, who were “married” in a commitment ceremony Jan. 1, 1997, spend much of their time at home. Smelt occasionally does decorative work on cars, and Hammer is on disability. They putter around the house, tending the lawn, and have weekly rituals attending car shows on Tuesdays and registering voters at a Sunday swap meet.

On their left hands, they wear the simple bands that they exchanged in their ceremony, and on the right, each wears a first-anniversary ring -- a circle of colorful gems arranged like a rainbow.

“We’re committed in every way, but we are also human beings who deserve to have a marriage license,” said Smelt, 45.

The other three federal suits on the issue are pending in Florida: two in Tampa and one in Miami. In two of them, the couples married out of state -- one in Canada and the other in Massachusetts -- and want their home state to recognize their unions. In the third, a couple have challenged the federal and Florida “defense of marriage” acts.

The lawyer who handled all three, Ellis Rubin, said he believes federal jurists are prepared to address the issues involved and rule in favor of gay couples.

“The established gay rights organizations did not want to do it because they’re too conservative,” Rubin said. “But these things have got to get going. There’s only one way that gays and lesbians are going to get any relief from the present situation, and that’s the courts.”