U.S. Court Passes on Marriage Lawsuit

A federal appeals court on Friday ruled it was premature for a gay Orange County couple to file a lawsuit challenging laws that deny gays and lesbians the right to be married and that the issue should be hashed out in state courts first.

After the Orange County clerk-recorder twice denied Arthur Smelt and Christopher Hammer of Mission Viejo a marriage license, the couple sued in 2004, claiming that state and federal laws recognizing unions only between a man and a woman are unconstitutional.

A three-judge panel of the U.S. 9th Circuit Court of Appeals recognized that the case touched on a topic “fraught with sensitive social policy considerations,” but ruled that the couple should wait for the state courts to sort out the issues. A state appeals court is awaiting arguments on a lawsuit challenging the state law that outlaws same-sex marriage.

The outcome of the state litigation could preclude federal courts from weighing in, wrote Appellate Judge Ferdinand F. Fernandez.

Legal experts said it was clear the panel wanted to avoid ruling on the issue.

The judges also found the men, both 46, did not have legal standing to challenge the federal Defense of Marriage Act because they were never married. The act allows states to refuse to recognize same-sex marriages from another state.

Hammer said the judges’ reasoning “sounded an awful lot like the doublespeak in George Orwell’s ‘1984.’ If we were married, why would we be in court complaining about not being able to get married?”

The case has caused a rift in the same-sex marriage movement, with the major civil rights groups concerned that the suit could lead the U.S. Supreme Court to rule that state laws banning same-sex marriages are constitutional.

Jennifer Pizer, senior counsel for the Lambda Legal Defense and Education Fund, an organization promoting gay and lesbian rights, was relieved by Friday’s ruling. “It recognizes that some of these important questions remain for a future day in an appropriate case,” she said.

Richard C. Gilbert, a Santa Ana lawyer representing Smelt and Hammer, said they probably would appeal to the Supreme Court. “We’ve said from the beginning that the only thing that’s ever going to matter is what the U.S. Supreme Court has to say,” he said.