3-judge panel advises California couple to await outcome of California legislation challenging the state’s gay marriage ban
SAN FRANCISCO A federal appeals court 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, California, men who were denied a marriage license, leaves Massachusetts as the only U.S. 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.
In the decision handed down May 5, 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 both California and federal rules barring same-sex marriage, but the court 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 couple, Arthur Smelt and Christopher Hammer, who are both 46, did not immediately return a message left at their Mission Viejo, California, home.
Their attorney, Richard Gilbert, said he and his clients were perplexed by the decision and were considering appealing to the U.S. Supreme Court.
“We’re at a complete loss. The court is saying they think you need to be married to seek the right to be married,” Gilbert said. “We don’t understand the logic of that finding.”
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.
In other developments, two Boston couples claiming their parenting has been under attack in the only U.S. state that allows same-sex marriage, have sued school officials on May 5 for permitting the discussion of homosexuality in their children’s classrooms.
Tonia Parker and her husband, David, did not want to discuss sexual orientation yet with their 5-year-old son and were shocked when he brought home a book from school that that depicted a gay family. The book was included in a “diversity book bag” last year, they said.
David Parker subsequently was arrested for refusing to leave his son’s school in Lexington, Massachusetts, after officials refused to meet his demand that he be notified when homosexuality was discussed in his son’s class.
The Parkers and another couple, Joseph and Robin Wirthlin, sued school officials in federal court, claiming Lexington officials violated their parental rights to teach morals to their own children.
The Wirthlins joined the Parkers in the federal suit after a second grade teacher read to her class the fairy tale “King and King,” which tells the story of two princes falling in love.
This article appeared in the Dallas Voice print edition, May 12, 2006.