Smelt v. County of Orange

Citation374 F.Supp.2d 861
Decision Date16 June 2005
Docket NumberNo. SACV04-1042-GLT(MLGX).,SACV04-1042-GLT(MLGX).
PartiesArthur SMELT, et al., Plaintiffs, v. COUNTY OF ORANGE, et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California

Richard C. Gilbert, Esq., Diane J. Marlowe, Esq., Gilbert & Marlowe, Santa Ana, CA, for Arthur Bruno Smelt.

Law Offices of Ross S. Heckmann, Esq., Arcadia, CA, Rena M. Lindevaldsen, Esq., Mary E. McAlister, Esq., Liberty Counsel, Longwood, FL, for (Intervenor Plaintiff) Campaign for California Families.

Chandra Miller Fienen, Esq., Amy E. Margolin, Esq., Bobbie J. Wilson, Esq. Howard, Rice, Nemerovski Canady, Falk and Rabkin, San Francisco, CA, Sherri Sokeland Kaiser, Esq., San Francisco City Attorney, San Francisco, CA, for San Francisco City and County.

Christopher E. Krueger, Esq., Hiren M. Patel, Esq., CAAG — California Attorney General Office, Sacramento, CA, for Michael Rodrian.

Teri L. Maksoudian, Esq., Marianne Van Riper, Esq., Orange County Counsel, Santa Ana, CA, for Defendant, County Clerk.

W. Scott Simpson, Esq., U.S. Department of Justice, Civil Div — Federal Programs Branch, Washington, DC, for Intervenor Defendant, USA.


TAYLOR, District Judge.

In a federal constitutional challenge to same-sex marriage limitations, the Court holds (1) it is a proper exercise of discretion for federal courts to abstain from deciding the constitutionality of state "man-woman marriage" statutes until the state court review process is completed, and (2) section 3 of the federal Defense of Marriage Act is constitutional.


This suit tests the constitutionality of California's man-woman marriage laws and the federal Defense of Marriage Act. The facts are agreed. Each of the Plaintiffs is an adult male, desiring and intending to enter into a civil marriage with each other in the State of California. In February 2004, and again in March 2004, Plaintiffs applied for a marriage license from the County Clerk, Orange County, California. On both occasions, the Clerk refused to issue a marriage license because Plaintiffs are of the same sex. In all other respects, Plaintiffs meet the qualifications for issuance of a marriage license. Earlier, in 2000, Plaintiffs applied for and received a Declaration of Domestic Partnership from the State of California.

Plaintiffs sued the County of Orange and the Orange County Clerk (collectively "County Defendants") and the State Registrar of Vital Statistics and California Department of Health Services (collectively "State Defendants"). Plaintiffs contend California Family Code sections 300,1 301,2 and 308.53 violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution, Plaintiffs' right to privacy, the First Amendment, the Ninth Amendment, and the right to travel. Plaintiffs further allege section 308.5 violates the Full Faith and Credit Clause of the U.S. Constitution.

Plaintiffs also challenge the federal Defense of Marriage Act ("DOMA").4 They assert section 25 of DOMA violates the Full Faith and Credit Clause of the U.S. Constitution, and section 36 violates the Equal Protection and Due Process Clauses of the U.S. Constitution and Plaintiffs' right to privacy.

The United States of America intervened at this Court's invitation pursuant to 28 U.S.C. § 2403(a). The Court also allowed the Proposition 22 Legal Defense and Education Fund and the Campaign for California Families to intervene as Defendants.7

The parties agree there is no genuine issue of material fact to be tried. All parties filed cross-motions for summary judgment on the legal issues presented. A motion was also made for the Court to abstain on the state statutory issues.


The sensitive legal and political issue of same-sex marriage in this country is developing rapidly. This case tests the constitutionality of California's marriage laws under the federal Constitution and the constitutionality of the federal DOMA.

A. The California Statutes — Federal Abstention

The State Defendants filed a motion for this Court to abstain and stay the part of the case challenging the California statutes pending resolution of the Marriage Cases, a consolidated proceeding of six cases in California state court. See supra note 7. The Marriage Cases challenge California Family Code sections 300, 301, and 308.5 under the California state constitution.8 The trial court's decision will apparently eventually reach the California Supreme Court. The Court concludes abstention is appropriate.

Under the abstention doctrine articulated in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), this Court should postpone the exercise of jurisdiction "when `a federal constitutional issue ... might be mooted or presented in a different posture by a state court determination of pertinent state law.'" C-Y Dev. Co. v. City of Redlands, 703 F.2d 375, 377 (9th Cir.1983) (omission in original) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959)).9

Pullman abstention is a narrow exception to this Court's "duty to decide cases properly before it." Id. The doctrine exists to avoid collision between federal courts and state legislatures and to prevent premature determination of constitutional issues. Porter v. Jones, 319 F.3d 483, 492 (9th Cir.2003); San Remo Hotel v. City & County of San Francisco, 145 F.3d 1095, 1101 (9th Cir.1998) ("[O]ur precedents require abstention in order to avoid an unnecessary conflict between state law and the federal Constitution."); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 79, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ("Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest court."). Abstention is designed to respect "`the rightful independence of the state governments'" and to enable "the smooth working of the federal judiciary." Pullman, 312 U.S. at 501, 61 S.Ct. 643 (quoting Di Giovanni v. Camden Fire Ins. Ass'n, 296 U.S. 64, 73, 56 S.Ct. 1, 80 L.Ed. 47 (1935)). In order to respect a plaintiff's choice of forum, Pullman abstention should rarely be applied. Porter, 319 F.3d at 492.

Pullman abstention is appropriate when:

"(1) the case touches on a sensitive area of social policy upon which the federal courts ought not enter unless no alternative to its adjudication is open, (2) constitutional adjudication plainly can be avoided if a definite ruling on the state issue would terminate the controversy, and (3) the proper resolution of the possible determinative issue of state law is uncertain."

Id. (alteration omitted) (quoting Confederated Salish v. Simonich, 29 F.3d 1398, 1407 (9th Cir.1994)).

1. Sensitive Area of Social Policy

An important Pullman element is whether the case involves a sensitive area of social policy best left to the states to address. Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir.2002); see also In re Eastport Assocs., 935 F.2d 1071, 1078 (9th Cir.1991) ("[T]he predominance of particularly sensitive state law issues should weigh in favor of abstention."); Almodovar v. Reiner, 832 F.2d 1138, 1140 (9th Cir.1987) (finding the first Pullman element "protects state sovereignty over matters of local concern"). When a sensitive area of social policy is at issue, abstention may be appropriate.

Here, the California state statutes touch an important and sensitive area of a social institution particularly within the province of a state. While federal constitutionality of the state statutes is a federal question appropriate for federal court adjudication, the underlying statutes relate to California's definition of and recognition of the institution of marriage. "[M]arriage is a social relation subject to the State's police power ...." Loving v. Virginia, 388 U.S. 1, 7, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); see also Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (stating regulation of domestic relations is "an area that has long been regarded as a virtually exclusive province of the States"); Pennoyer v. Neff, 95 U.S. 714, 734-35, 5 Otto 714, 24 L.Ed. 565 (1877) ("The State ... has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created...."), overruled on other grounds by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977).

DOMA implicitly recognizes regulation of marriage is a state issue. Section 2 of DOMA provides states do not have to give effect to a marriage "under the laws of such other State." 28 U.S.C. § 1738C (Supp.2005). This acknowledges the laws of the states — not the federal government — govern marriage. While federal law provides certain rights and responsibilities to married individuals, how those individuals become married is a matter of state law. This is true in California as in other states. See, e.g., Lockyer v. City & County...

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