Supreme Court Throws Out OC Case
By Denise Penn
The Justice Department made a motion to dismiss a same sex marriage case filed in federal court by an Orange County couple. The motion, filed on June 11th, argues that the case does not tackle the issue of whether same sex couples have a right to marry since the plaintiffs are already legally married in California. It addresses the issue of whether their marriage must be acknowledged as valid in other states across the country that that have not yet validated same sex marriage.
Chris Hammer and Arthur Smelt met in 1996 and a year later, they decided to have a commitment ceremony which they call an “unofficial marriage” in their Mission Viejo home with a few family members and friends present.
In 2004, when they heard that same sex couples were getting married in San Francisco, they started thinking about making their own marriage “official” by going up to Northern California along with droves of same sex couples after San Francisco Mayor Gavin Newsom gave the go-ahead and began issuing the marriage licenses. But they decided that they would rather get married in their own hometown in Orange County, California.
The couple went to Santa Ana and tried to get a marriage license on two separate occasions, but were turned down. Attorney Richard Gilbert filed a complaint on their behalf in federal court, alleging that Smelt and Hammer were denied a California marriage license on two occasions and asked the court to declare that sections 300, 301 and 308.5 in the California Family law code and the Federal Definition of Marriage Act (DOMA) violates the 14th Amendment clauses relating to Due Process, Equal Protection, the Right to Privacy, and Full Faith and Credit under the U.S. Constitution. The plaintiffs ask for a permanent injunction compelling the defendants to prescribe and furnish marriage certificates that are gender neutral. Gilbert said federal and state laws against same sex marriage are unconstitutional.
There were similar cases pending in state courts. But Hammer and Smelt bypassed the California law and directly challenged the federal ban on same sex marriage. “We aren’t seeking any state remedies because this is America and our Constitutional rights are being violated, “Hammer told this reporter in 2005. “We are challenging DOMA. We feel that our marriage should be recognized by all the states. Why should we have a marriage that is recognized in California and not in 49 other states?”
On June 16th, 2005 U.S. District Judge Gary Taylor deferred ruling on whether a state ban on same-sex marriage violates the civil rights of a gay couple so that the state courts can decide the San Francisco challenge to California’s state law first.
Subsequently, they were married in the summer of 2008. California Attorney General moved to dismiss the couple’s state lawsuit – not because he does not support the rights of same sex couples – but because Hammer and Smelt do not have standing to sue because their marriage is still valid in the state of California and was not impacted by the passage of Prop. 8.