Gay O.C. Pair Fight Marriage Laws

A gay Mission Viejo couple asked a federal judge in Santa Ana on Thursday to overturn federal and state marriage laws barring same-sex unions.

Attorney Richard Gilbert argued that denying a marriage license to Arthur Smelt and Christopher Hammer violated their rights under the U.S. and state constitutions. He asked U.S. District Judge Gary Taylor to overturn the federal Defense of Marriage Act and California’s Proposition 22 -- passed in 2000 -- which define marriage as between a man and a woman.

“This court is called upon to let freedom win the day,” Gilbert, of Santa Ana, said during five hours of argument among seven attorneys for the opposing sides.

Taylor took the matter under submission. Among his options are to overturn both federal and California marriage laws, overturn the federal law and abstain on the state law, or abstain on the constitutionality questions in both the state and federal laws. Both sides have pledged to appeal an adverse ruling.

In what she acknowledged was an unusual move, Jennifer Pizer, senior counsel for Lambda Legal, a group promoting gay and lesbian rights, asked Taylor to abstain completely. The organization hopes that state courts will sort out the same issues in six San Francisco cases, filed after Mayor Gavin Newsom began issuing marriage licenses to gay and lesbian couples in February 2004.

San Francisco County Superior Court Judge Richard Kramer took those cases under submission Jan. 14.

“The California Supreme Court has consistently said that the state Constitution is more protective [of civil rights] than the federal Constitution,” said Pizer, who is based in Los Angeles.

Facing off against Gilbert were attorneys for Orange County Clerk-Recorder Tom Daly, state Atty. Gen. Bill Lockyer, the Bush administration, the organization behind Proposition 22 and the Campaign for California Families. They argued that the state had the authority to define marriage and that California’s definition was constitutional.

The state has a rational basis for establishing rules for marriage to promote a stable environment for procreating and raising children, said Marianne Van Riper, deputy county counsel.

“This isn’t [the same issue as] slavery or segregation,” said Deputy Atty. Gen. Christopher E. Krueger. He noted that a law went into effect Jan. 1 guaranteeing gay and lesbian couples the same rights and benefits as married couples, except for the ability to file as married on state income tax forms.

Smelt and Hammer are the fourth couple in the country, and the first Californians, to file a federal lawsuit challenging the legal definitions of marriage. The hearing came two days after gay couples in Florida decided to drop their lawsuits, leaving the California case as the only challenge to the Defense of Marriage Act.