Gay marriage legal fight shifting to Southern California

SANTA ANA, Calif. - They filed their lawsuit almost as an afterthought. But a legal challenge by a gay couple from suburban Orange County against laws banning same-sex marriage has suddenly become an important case in a thinning field of litigation on the issue.

Christopher Hammer and Arthur Smelt were to be in U.S. District Court on Thursday to see their attorney argue that the federal Defense of Marriage Act and California's Proposition 22 are violations of civil rights akin to slavery or denying women the right to vote.

U.S. District Judge Gary L. Taylor didn't indicate when he would rule in the case.

The hearing comes two days after gay couples in Florida decided to drop their lawsuits, leaving the California case as one of the few federal court challenges to the Defense of Marriage Act.

"Certainly, eyes are going to be focused on this particular case," said Matthew Staver, president of Liberty Counsel, an opponent of gay marriage involved in some 30 cases around the nation.

There are only a couple of same-sex marriage cases pending in federal courts, according to lawyers on both sides of the debate, including one in Nebraska and one in Oklahoma.

Hammer and Smelt, both 45 and on disability retirement from their jobs, met in 1996 and held a commitment ceremony in their Mission Viejo home a year later in front of a few family members.

They tried to get a marriage license in Orange County at the time but were turned down.

"I was laughed at. They said, 'don't even bother,"' Hammer said.

But last year, as the couple watched news reports of gays and lesbians getting married in San Francisco - ceremonies later halted by a court - they decided to give it another shot. Turned down again, they filed a lawsuit.

It's a matter of principal and fairness, the men said.

"Everybody should have the right to get married. That's all," Smelt said. "That's just how I feel."

Their attorney, Richard C. Gilbert, decided to pursue the case in federal court, even though most cases elsewhere were filed in state courts, where activists believe their chances are better.

"Marriage traditionally has been a state law matter," said Jennifer Pizer, senior counsel with the Lambda Legal Defense and Education Fund.

Gilbert said federal and state laws against same sex marriage are unconstitutional.

On Tuesday, three gay couples in Florida dropped their lawsuits challenging the Defense of Marriage Act after a judge dismissed their cases. They decided not to risk appeals that could result in the U.S. Supreme Court setting a precedent by rejecting the cases.