Smelt v. County of Orange

• Decision Date: 05 May 2006
• Docket Number: No. 05-56040.,05-56040.
• Citation: 447 F.3d 673
• Parties: Arthur Bruno SMELT; Christopher David Hammer, Plaintiffs-Appellants, v. COUNTY OF ORANGE, California; County Clerk, for the County of Orange; Michael Rodrian, in his official capacity as State Registrar of Vital Statistics, California Department of Health Services; United States of America; Defendants-Appellees, Proposition 22 Legal Defense and Education Fund; Campaign for California Families, Defendant-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

447 F.3d 673

Arthur Bruno SMELT; Christopher David Hammer, Plaintiffs-Appellants, v. COUNTY OF ORANGE, California; County Clerk, for the County of Orange; Michael Rodrian, in his official capacity as State Registrar of Vital Statistics, California Department of Health Services; United States of America; Defendants-Appellees Proposition 22 Legal Defense and Education Fund; Campaign for California Families, Defendant-Intervenors-Appellees.

No. 05-56040.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 2006.

Filed May 5, 2006.

COPYRIGHT MATERIAL OMITTED

Richard C. Gilbert, Diane J. Marlowe, Law Offices of Gilbert & Marlowe, Santa Ana, CA, for the plaintiffs-appellants.

Teri L. Maksoudian, Santa Ana, CA, for County of Orange and County Clerk of Orange County; Christopher E. Krueger, Office of the Attorney General, Sacramento, CA, for the State Registrar of Vital Statistics and the California Department of Health Services; August E. Flentje and Gregory G. Katsas (argued), U.S. Department of Justice, Civil Division, Washington DC, for the United States of America, defendants-appellees.

Byron J. Babione (argued), Glen Lavy, Dale Showengerdt, Benjamin W. Bull, Alliance Defense Fund, Scottsdale, AZ, for Proposition 22 Legal Defense and Education Fund; Rena M. Lindevaldsen, Liberty Counsel, Longwood, FL, for Campaign for California Familes, defendant-intervenors-appellees.

Christopher F. Stoll, Heller Ehrman LLP, San Francisco, CA, for amicus curiae Equality California.

Steven W. Fitschen, Virginia Beach, VA, for amicus curiae National Legal Foundation.

Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CV-04-01042-GLT.

Before FARRIS, FERNANDEZ, and THOMAS, Circuit Judges.

FERNANDEZ, Circuit Judge.

Arthur Bruno Smelt and Christopher David Hammer, two men who wish to marry each other, appeal the district court's orders¹ which (a) abstained as to their claim that three sections of the California law relating to marriage are unconstitutional,² and (b) ruled adversely to them on their claims that two sections of the Federal Defense of Marriage Act (DOMA)³ are likewise unconstitutional. We affirm in part, reverse in part, and remand for dismissal of both DOMA claims.

BACKGROUND

It is agreed: Smelt and Hammer are both males who wish to obtain a California marriage license and to marry each other in that state. They applied to the County Clerk of Orange County, California, for issuance of a marriage license on two occasions. They were denied a license both times "because [they] are of the same gender." Were it not for that, "[they] meet the qualifications for issuance of a marriage license. [They] applied for and received a Declaration of Domestic Partnership from the State of California dated January 10, 2000."⁴

Smelt and Hammer then brought this action against the County of Orange and the Orange County Clerk (collectively the County); and the State Registrar of Vital Statistics, California Department of Health Services (the State).⁵ The amended complaint alleged that to the extent that California Family Code sections 300,⁶ 301,⁷ and 308.5⁸ preclude them from obtaining a marriage license, those sections violate: equal protection; due process; "the Right to Life, Liberty and the Pursuit of Happiness"; "the right to be free from an undue invasion of the Right to Privacy; ... the Ninth Amendment Right of Reservation of all Rights not Enumerated to the People, and the Right to Travel, and The Right of Free Speech." The complaint also asserted that section 308.5 violates the Full Faith and Credit Clause of the United States Constitution.⁹

Additionally, the complaint raised federal constitutional challenges to DOMA. Specifically, it alleged that Section 2 of DOMA (28 U.S.C. § 1738C)¹⁰ violates the United States Constitution's Due Process Cause (Fifth Amendment), equal protection rights (Fifth Amendment), the Right to Privacy, and the Full Faith and Credit Clause. Finally, it alleged that Section 3 of DOMA (1 U.S.C. § 7)¹¹ violates the "liberty interests protected by the Due Process Clause"; discriminates "on the basis of gender" and "sexual orientation" in violation of equal protection; and violates "the privacy interests protected by the Right to Privacy."

To rectify this myriad of alleged constitutional violations, Smelt and Hammer sought a declaratory judgment that the relevant sections of the California Family Code and DOMA are unconstitutional. They also sought injunctive relief "[m]andating the use of gender-neutral terms and issuing a marriage license to [them]."

The State Defendants then filed an abstention motion based on pending litigation in the California state courts on the issue of whether the California Family Code sections that limit marriage to couples consisting of an unmarried man and an unmarried woman comply with the provisions of the California constitution (the Marriage Cases).¹² Equality California, which is involved in the Marriage Cases, filed an amicus brief in support of abstention. The district court took the motion to abstain under submission. In addition, cross motions for summary judgment were filed by Smelt and Hammer, the County, the United States, Prop 22 Fund, and CCF.

The district court ultimately issued a published order: (1) abstaining pursuant to Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), from deciding the constitutionality of the challenged sections of the California Family Code until the Marriage Cases had been concluded;¹³ (2) deciding that Smelt and Hammer have no standing to challenge Section 2 of DOMA (28 U.S.C. § 1738C); and (3) finding that Smelt and Hammer have standing to challenge Section 3 of DOMA (1 U.S.C. § 7), but that the section does not violate the United States Constitution. See Smelt I, 374 F.Supp.2d at 864-80.

Needless to say, Smelt and Hammer disagreed; this appeal followed.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction over the abstention order and stay. See 28 U.S.C. §§ 1291, 1292(a)(1); Porter v. Jones, 319 F.3d 483, 489 (9th Cir.2003). We also have jurisdiction over the district court's DOMA determinations. See Fed. R.Civ.P. 54(b); see also Smelt I, 374 F.Supp.2d at 880 n. 25.

We review Pullman abstention decisions under a "modified abuse of discretion standard." Almodovar v. Reiner, 832 F.2d 1138, 1140 (9th Cir.1987). That is, we review de novo whether the requirements for Pullman abstention have been met. Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir.2002). Then, we review the district court's ultimate decision to abstain under Pullman for abuse of discretion. Ripplinger v. Collins, 868 F.2d 1043, 1048 (9th Cir.1989). "An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found." Int'l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993) (internal quotation marks omitted).

We review de novo the district court's determinations regarding standing. Pony v. County of L.A., 433 F.3d 1138, 1142 n. 2 (9th Cir.2006). "In order to have standing at the summary judgment stage, plaintiffs must set forth by affidavit or other evidence specific facts, showing that they have suffered an injury in fact that is fairly traceable to the action they seek to challenge." Arakaki v. Haw., 314 F.3d 1091, 1098 (9th Cir.2002) (internal quotation marks and citation omitted).

DISCUSSION

I. The California Family Code Sections; Abstention

As already noted, the district court abstained on Smelt and Hammer's attacks on the California Family Code Sections. See Smelt I, 374 F.Supp.2d at 865-70. It did so pursuant to the Pullman abstention doctrine. The source of the doctrine is found, not surprisingly, in a case involving Pullman sleeping cars, where the federal courts were asked to restrain an order of the Texas Railroad Commission regarding the use of attendants in railroad sleeping cars. Pullman, 312 U.S. at 497-98, 61 S.Ct. at 644. A three-judge court (one circuit judge and two district judges) issued an injunction, and an appeal to the Supreme Court followed. Id. at 498, 61 S.Ct. at 644. The Court noted that the Supreme Court of Texas would have the last word on whether the Commission had even acted within the scope of authority given to it by the laws of Texas. Id. at 499-500, 61 S.Ct. at 645. It saw nothing to preclude an action which could be "brought with reasonable promptness, in the state court." Id. at 502, 61 S.Ct. at 646. Thus, the Supreme Court determined that the federal courts should retain the action, but abstain while that state court process went forward,¹⁴ because the case touched a sensitive area of social policy,¹⁵ the state decision could obviate the need for federal constitutional adjudication,¹⁶ and any federal construction of the state law might, at any time, be upended by a decision of the state courts.¹⁷ That, over time, has been distilled into the factors that go into a determination of whether the Pullman abstention doctrine can be utilized. Those factors are usually rendered as follows:

(1) The complaint touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.

(2) Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy.

(3) The possibly determinative issue of state law is doubtful.

C-Y Dev. Co. v. City of Redlands, 703 F.2d 375, 377 (9th Cir.1983) (internal quotation marks omitted); see also Porter, 319 F.3d at 492. And it is not even necessary that the state adjudication "obviate the need to decide all the federal constitutional questions" as long as it will "reduce the...