A lawyer for a gay couple suing for the right to wed argued before a federal appeals panel that it is unconstitutional to outlaw same-sex marriage. One judge on the 9th U.S. Circuit Court of Appeals panel appeared unmoved Tuesday, and two others said the case could die on procedural grounds. Arthur Smelt and Christopher Hammer, both 46, of Mission Viejo , California , sued after being denied a marriage license in Orange County , California . They claim California 's ban on same-sex marriage, as well as federal laws against it, are unconstitutional because they treat gays and lesbians differently than heterosexuals.
U.S. District Judge Gary Taylor last year ruled against the couple, saying the government's desire to promote procreation is a valid reason for infringing on the rights of gays. The couple appealed the ruling. But Judge Jerome Farris of the appellate court agreed with Taylor 's argument. "I think marriage is a bundle of sticks and sticks include procreation," he said.
Richard Gilbert, the couple's attorney, said procreation is not the important element of marriage, and Judge Sidney Thomas appeared to agree. "I don't understand, really, the procreation argument," Thomas said. The judges did not indicate when they would rule.
The couple's case does not have the support of heavyweights in the fight for same-sex marriage, which are instead waging campaigns in state courts in California , Iowa , Washington , New Jersey , New York and elsewhere. They are seeking rulings similar to a 2003 decision that led to legal gay marriage in Massachusetts .
The strategy of Lambda Legal Defense and Education Fund and the American Civil Liberties Union is to win in several U.S. states before going to the federal courts and eventually the Supreme Court. They say there is a strong national consensus against same-sex marriage and the Supreme Court would likely rule against it.
"We are interested in serious, incremental work in order to succeed," said Jennifer Pizer, a Lambda attorney who attended the hearing. In an interview, Gilbert said Lambda and the ACLU's strategy was failing. Nineteen states have amended their constitution to outlaw gay marriage and voters in at least six other states could be asked to amend theirs similarly this year.
During the hearing, Justice Department lawyer Gregory Katsas argued that the traditional definition of marriage does not violate the Constitution. Thomas and Judge Ferdinand Fernandez suggested the case may be premature, saying a state court of appeals in San Francisco is already weighing a lawsuit brought by gays and lesbians challenging California 's prohibition against same-sex marriage. Gilbert, however, said he wanted a definitive ruling on whether federal laws and the 49 states that do not permit same-sex marriage are violating the U.S. Constitution's equal protection guarantee, reports the AP.