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Appeals court panel tosses out lawsuit against federal Defense of Marriage Act

SAN FRANCISCO (BP)–A federal appeals court panel May 5 dismissed a lawsuit against the federal Defense of Marriage Act, unanimously ruling that two homosexual men who brought the case lacked standing.

The decision by a three-judge panel of the U.S. Ninth Circuit Court of Appeals is the first-ever ruling concerning DOMA by a federal appellate court. Signed into law in 1996, DOMA prevents the federal government from recognizing “gay marriage” and gives states the option of doing the same. If DOMA is overturned, then all 50 states presumably would be forced to recognize “marriage” between homosexuals. Massachusetts remains the lone state to legalize “gay marriage.”

Writing for the court, Judge Ferdinand F. Fernandez said the two homosexual men lack legal standing to file suit DOMA because they have no marriage license.

“Were they to change their residence to Massachusetts, their situation might change, but they have placed nothing before us to suggest that they have gone, or intend to go, to that state,” Fernandez wrote.

The lawsuit was brought by the two men, Arthur Smelt and Christopher Hammer, after they applied for but were denied a marriage license in Orange County, Calif. They sued in federal court, arguing that both the California law and the Defense of Marriage Act violate the U.S. Constitution. A federal judge in June 2005 ruled against the two men, and they appealed to the Ninth Circuit.

It is one of three lawsuits nationally against the Defense of Marriage Act. The other two are in Oklahoma and in a bankruptcy court in Washington state.

The national homosexual rights groups have opposed the lawsuits, arguing that the timing isn’t right and that a loss at the Supreme Court could set bad precedent for decades. But the lawyer for Smelt and Hammer has indicated they would appeal all the way to the Supreme Court.

Fernandez, a circuit court nominee of President George H.W. Bush, noted that a “gay marriage” case currently is making its way through the California state court system. He also argued that the federal debate over “gay marriage” is one that is best served in the political realm.

“Smelt and Hammer’s generalized attack remains a fit topic for that body rather than the courts,” he said of Congress.

Fernandez also rejected Smelt and Hammer’s argument that DOMA unconstitutionally deprives them of the legal benefits of marriage.

“[A]nyone could argue that some federal statute might deprive some person in some group of some benefit,” he wrote. “Any citizen or taxpayer could as easily claim that some application or other of the DOMA definition to some as yet undesignated statute, which confers some public benefit or right, might exclude that person because DOMA requires a legal union, a man, and a woman.”

In a footnote explaining his reasoning, he added, “That could be a polygamist, a polyandrist, one or both of two roommates or friends (perhaps loving friends), any member of a group of two or more people, a member of a partnership, a corporation, and — as the latter suggests — even a single person.”

Conservatives applauded the ruling. Liberty Counsel President Mathew D. Staver called it “another victory for marriage.”

“The federal courts should defer to state courts and the state courts should defer to state legislatures,” said Staver, whose legal organization represented Campaign for California Families. “The people, not the courts, should determine marriage policy.

“Recent statistics have shown that in those jurisdictions that have adopted same-sex marriage, very few same-sex couples are rushing to the altar. Same-sex advocates want same-sex marriage not to get married but to radically redefine marriage and upset the culture.”

Said attorney Byron Babione of the Alliance Defense Fund, which represented the Proposition 22 Legal Defense and Education Fund, “Marriage has become an emotional issue because political special interests agitate to reduce it to a mere benefits system for emotionally attached couples. But marriage is about fostering a long term commitment of biological parents to raise their children together. A marriage license does not certify one person’s love for another; it provides a legal framework to protect the children that result from the marriage.”

The other two judges in the case were Jerome Farris, a nominee of President Carter, and Sidney R. Thomas, a nominee of President Clinton. Farris issued a one-sentence concurrence stating, “I concur in the result.”

The case is Smelt v. Orange County, No. 05-56040.
For more information about the national debate over “gay marriage,” visit http://www.bpnews.net/samesexmarriage

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  • Michael Foust