Gay-marriage issue
left to states
By DAVID KRAVETS, AP
seattletimes.nwsource.com May 6, 2006
SAN FRANCISCO – A federal
appeals court on Friday sidestepped whether it was unconstitutional under
federal and state law to deny gays and lesbians the right to marry, leaving the
issue to state courts to decide.
The case, brought by two gay Orange County men who were denied a marriage
license, leaves Massachusetts as the only state allowing same-sex marriage.
A three-judge panel of the 9th U.S. Circuit Court of Appeals said the couple
should await the outcome of California litigation challenging the state's law
banning gay nuptials.
Judge Ferdinand Fernandez wrote that it is "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."
A San Francisco trial judge has already declared the marriage ban invalid, but
the decision was stayed for review by a state appeals court, which is expected
to hear arguments soon.
The federal case challenged California and federal rules barring same-sex
marriage, but the appeals panel said the federal judiciary should stay out of
the fight for now and leave it to the states.
Fernandez, joined by judges Sidney Thomas and Jerome Farris, added that the
couple does not have legal standing to sue over federal laws against same-sex
marriage because the pair has not attempted to acquire any federal benefits of
marriage, such as filing a married income-tax return.
"That they may someday be married under the law of some state or ask for some
federal benefit is not enough," Fernandez wrote.
The case involves Arthur Smelt and Christopher Hammer, both 46, of Mission
Viejo.
Hammer said the judges' reasoning "sounded an awful lot like the double-speak in
George Orwell's '1984.' If we were married, why would we be in court
complaining about not being able to get married?"
Richard Gilbert, who is representing Smelt and Hammer, said they probably will
appeal the case 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. The federal lawsuit
exposed a rift in the same-sex marriage movement, with major civil-rights groups
opposing it for fear the case could lead 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 9th 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 does not have a chance before the
U.S. Supreme Court.
The Washington state Supreme Court is expected to rule soon on the
constitutionality of a state law prohibiting same-sex marriage. Two lower
courts have struck down the law.
Material from the Los Angeles Times and Seattle Times archive
is included in this report.
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