PASADENA, Calif. (BP)–In a case that could result in the nationwide legalization of “gay marriage,” a lawyer representing a homosexual couple asked a federal appeals court panel April 4 to strike down the Defense of Marriage Act.
DOMA, signed into law in 1996, prevents the federal government from recognizing “gay marriage” and gives states the option of doing the same. But the two men, who reside in California, argue that the law violates the U.S. Constitution. They lost last year at the district court level, and appealed.
The hearing was before the U.S. Ninth Circuit Court of Appeals, generally considered to be the most liberal appeals court in the U.S. Still, two of the three justices who heard the case seemed inclined to rule against the couple — at least on a technicality.
“Everything that is wrong is not discrimination,” Judge Jerome Farris said, according to the Associated Press.
It was the first time that any appeals court considered the constitutionality of DOMA. Two district court judges, as well as a bankruptcy court, have ruled it constitutional. The couple actually is challenging two laws — the federal DOMA and California’s law that protects the natural definition of marriage.
The fact that the men had registered as domestic partners, and then terminated that partnership, may have hurt their cause legally. They ended their partnership as a way of protesting California’s marriage laws, the San Francisco Chronicle reported. By doing that, they may have lost legal standing to sue.
“Standing was predicated on the legitimacy of the domestic partnership,” Judge Sidney Thomas said, according to the Chronicle. “… [W]hy shouldn’t we abstain and let the California courts decide all this?”
But Thomas also indicated he didn’t side with the natural view of marriage, either.
“I don’t understand, really, the procreation argument,” Thomas said, according to AP, referring to the legal argument that procreation is a main reason marriage is limited to one man and one woman.
The major homosexual and liberal groups — including Lambda Legal and the American Civil Liberties Union — oppose the lawsuit, arguing the timing is bad and that it could lead to bad precedent at the U.S. Supreme Court. Such a federal case, they argue, should wait until more states have legalized “gay marriage.”
“We have been very active in trying to win the freedom to marry for same-sex couples,” Jon Davidson, an attorney for Lambda Legal, told AP. “We think there is a smart way to do that and a less smart way to do that.”
But the couple’s attorney, Richard Gilbert, disagrees.
“You fight for your rights when your rights are being denied,” Gilbert told AP. “When the building is on fire, you don’t stand by and let the building burn down and say we’ll fight the fire another day.”
The case has resulted in a war of words among homosexual activists.
“What we’ve learned was: You’re more likely to win at the Supreme Court if you’ve done your homework, if you have victories in state courts,” Davidson said. “He [Gilbert] thinks he knows better and that we have somehow sold out, and I find that quite offensive.”
After the panel issues a ruling, the case could be appealed either to the full Ninth Circuit, or to the U.S. Supreme Court.
The case is Smelt v. Orange County.
FEINGOLD BACKS ‘GAY MARRIAGE’ — Sen. Russ Feingold, D.-Wis., said April 4 he supports the legalization of “gay marriage.” The announcement came as Feingold announced his opposition to a proposed constitutional amendment on the Wisconsin ballot this November that would protect the natural definition of marriage.
“[G]ay and lesbian couples should be able to marry and have access to the same rights, privileges and benefits that straight couples currently enjoy,” Feingold said. “Denying people this basic American right is the kind of discrimination that has no place in our laws, especially in a progressive state like Wisconsin.”
At least one other U.S. senator — Edward Kennedy, D.-Mass. — supports “gay marriage.”
Nineteen states have adopted marriage amendments, and that number could surpass 25 by the end of the year.
AMENDMENT DEFEATED IN MINN. — A Minnesota Senate committee defeated a proposed constitutional marriage amendment by a vote of 5-4 April 4. The House passed a similar amendment last year. Conservatives in the Senate promised to bring up the amendment again.
“Marriage litigation is coming to Minnesota,” Chris Stoebel, an attorney with the conservative Alliance Defense Fund, told senators, according to the Pioneer Press. “It is only a matter of time and timing.”
The amendment would prevent state courts in Minnesota from legalizing “gay marriage.” Massachusetts, which saw its highest court legalize “gay marriage,” has no marriage amendment.
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For more information about the national debate over “gay marriage,” visit http://www.bpnews.net/samesexmarriage
