Smelt v. County of Orange , 447 F.3d 673 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTHUR BRUNO SMELT; 
CHRISTOPHER DAVID HAMMER,
Plaintiffs-Appellants,
v.
COUNTY OF ORANGE, California;
COUNTY CLERK, for the County of
Orange; MICHAEL RODRIAN, in his No. 05-56040
official capacity as State Registrar
of Vital Statistics, California
Department of Health Services;
 D.C. No.
CV-04-01042-GLT
UNITED STATES OF AMERICA; OPINION
Defendants-Appellees,
PROPOSITION 22 LEGAL
DEFENSE AND EDUCATION FUND;
CAMPAIGN FOR CALIFORNIA
FAMILIES,
Defendant-Intervenors-
Appellees.

Appeal from the United States District Court
for the Central District of California
Gary L. Taylor, District Judge, Presiding
Argued and Submitted
April 4, 2006—Pasadena, California
Filed May 5, 2006
Before: Jerome Farris, Ferdinand F. Fernandez, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Fernandez;
Concurrence by Judge Farris
5043
SMELT v. COUNTY OF ORANGE 5047
COUNSEL
Richard C. Gilbert, Diane J. Marlowe, Law Offices of Gilbert
& Marlowe, Santa Ana, California, for the plaintiffs-
appellants.
Teri L. Maksoudian, Santa Ana, California, for County of
Orange and County Clerk of Orange County; Christopher E.
Krueger, Office of the Attorney General, Sacramento, Califor-
nia, for the State Registrar of Vital Statistics and the Califor-
nia Department of Health Services; August E. Flentje and
Gregory G. Katsas (argued), U.S. Department of Justice, Civil
Division, Washington, D.C., for the United States of America,
defendants-appellees.
5048 SMELT v. COUNTY OF ORANGE
Dale Schowengerdt, Scottsdale, Arizona, for Proposition 22
Legal Defense and Education Fund; Rena M. Lindevaldsen,
Liberty Counsel, Longwood, Florida, for Campaign for Cali-
fornia Familes, defendant-intervenors-appellees.
Christopher F. Stoll, Heller Ehrman LLP, San Francisco, Cali-
fornia, for amicus curiae Equality California.
Steven W. Fitschen, Virginia Beach, Virginia, for amicus
curiae National Legal Foundation.
OPINION
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 sec-
tions 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 “be-
1
See Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005)
(Smelt I).
2
See Cal. Fam. Code §§ 300, 301, 308.5.
3
See Defense of Marriage Act, Pub. L. No. 104-199, §§ 2, 3, 110 Stat.
2419 (1996) (codified at 28 U.S.C. § 1738C, 1 U.S.C. § 7).
SMELT v. COUNTY OF ORANGE 5049
cause [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 Janu-
ary 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, Cali-
fornia 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
4
We note that documents over which we have taken judicial notice
show that Smelt and Hammer filed forms with the California Secretary of
State on December 16, 2004, in which they terminated their domestic part-
nership. See Cal. Fam. Code § 299 (2004).
5
Several other parties and amici have since become involved. The
United States intervened pursuant to 28 U.S.C. § 2403 to defend the con-
stitutionality of DOMA. The district court permitted Campaign for Cali-
fornia Families (CCF) and Proposition 22 Legal Defense and Education
Fund (Prop 22 Fund) to intervene. CCF argues that DOMA and the state
statutes limiting marriage to opposite-sex couples are constitutional. Prop
22 Fund argues to this court that DOMA is constitutional. Equality Cali-
fornia (an organization that represents lesbian, gay, bisexual, and trans-
gendered Californians) moved to intervene in this appeal. Equality
California’s request was denied by a motions panel, and its opening brief
was filed as an amicus brief. It argues that we should not reach the merits
of the claims. Finally, the National Legal Foundation filed an amicus brief
in this court, urging affirmance on the merits of the DOMA challenges.
6
Cal. Fam. Code § 300 reads as follows, in pertinent part: “Marriage is
a personal relation arising out of a civil contract between a man and a
woman, to which the consent of the parties capable of making that con-
tract is necessary. Consent alone does not constitute marriage. Consent
must be followed by the issuance of a license and solemnization . . . .”
7
Cal. Fam. Code § 301 reads as follows: “An unmarried male of the age
of 18 years or older, and an unmarried female of the age of 18 years or
older, and not otherwise disqualified, are capable of consenting to and
consummating marriage.”
8
Cal. Fam. Code § 308.5 reads as follows: “Only marriage between a
man and a woman is valid or recognized in California.”
5050 SMELT v. COUNTY OF ORANGE
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 Peo-
ple, 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 Con-
stitution’s Due Process Cause (Fifth Amendment), equal pro-
tection rights (Fifth Amendment), the Right to Privacy, and
the Full Faith and Credit Clause. Finally, it alleged that Sec-
tion 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.”
9
“Full Faith and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State. And the Congress
may by general Laws prescribe the Manner in which such Acts, Records
and Proceedings shall be proved, and the Effect thereof.” U.S. Const. art.
IV, § 1.
10
“No State, territory, or possession of the United States, or Indian tribe,
shall be required to give effect to any public act, record, or judicial pro-
ceeding of any other State, territory, possession, or tribe respecting a rela-
tionship between persons of the same sex that is treated as a marriage
under the laws of such other State, territory, possession, or tribe, or a right
or claim arising from such relationship.” 28 U.S.C. § 1738C.
11
“In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word ‘marriage’ means only a legal
union between one man and one woman as husband and wife, and the
word ‘spouse’ refers only to a person of the opposite sex who is a husband
or a wife.” 1 U.S.C. § 7.
SMELT v. COUNTY OF ORANGE 5051
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 Califor-
nia 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 sum-
mary 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. Pull-
man 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 stand-
ing to challenge Section 3 of DOMA (1 U.S.C. § 7), but that
12
In re Coordinated Proceeding, Special Title [Rule 1550(c)], Marriage
Cases, No. 4365, 2005 WL 583129 (Cal. Super. Ct. Mar. 14, 2005). The
Superior Court struck down the sections. The six consolidated cases are
now pending before the California Court of Appeal, First Appellate Dis-
trict, Division 3 (Case Nos. A110449, A110450, A110451, A110463,
A110651, A110652). The cases were fully briefed as of January 25, 2006,
and no date for argument has been set.
13
The district court anticipated that the Marriage Cases would ultimately
reach and be decided by the California Supreme Court. So do we.
5052 SMELT v. COUNTY OF ORANGE
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 disasgreed; 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 ulti-
mate decision to abstain under Pullman for abuse of discre-
tion. 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 suf-
fered 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).
SMELT v. COUNTY OF ORANGE 5053
DISCUSSION
I. The California Family Code Sections; Abstention
[1] As already noted, the district court abstained on Smelt
and Hammer’s attacks on the California Family Code Sec-
tions. See Smelt I, 374 F. Supp. 2d at 865-70. It did so pursu-
ant to the Pullman abstention doctrine. The source of the
doctrine is found, not surprisingly, in a case involving Pull-
man 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 cir-
cuit 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 reason-
able 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 sen-
sitive area of social policy,15 the state decision could obviate
the need for federal constitutional adjudication,16 and any fed-
eral 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:
14
Id. at 501-02, 61 S. Ct. at 646.
15
Id. at 498, 61 S. Ct. at 644.
16
Id.
17
Id. at 499-500, 61 S. Ct. at 645.
5054 SMELT v. COUNTY OF ORANGE
(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 adjudi-
cation “obviate the need to decide all the federal constitu-
tional questions” as long as it will “reduce the contours” of
the litigation. C-Y Dev., 703 F.2d at 380. Finally, the issue
here is not one of jurisdiction; it is ultimately a question of the
exercise of discretion. See Columbia Basin Apartment Ass’n
v. City of Pasco, 268 F.3d 791, 802 (9th Cir. 2001); Rip-
plinger, 868 F.2d at 1048. We turn, then, to the situation pre-
sented by Smelt and Hammer’s claims in this case.
[2] We must first consider whether the complaint touches
a sensitive area of social policy upon which we should not
enter unless we have no real alternative. It does, for it cannot
be gainsaid that in our social and legal traditions the institu-
tion of marriage has been considered to be an integral part of
the foundation of a well-ordered and viable society, the sinew
that strengthens society, the glue that holds society together.
In an unbroken line of cases, the Supreme Court has recog-
nized that.
For example, in Reynolds v. United States, 98 U.S. 145, 25
L. Ed. 244 (1878), the Supreme Court noted that:
Marriage, while from its very nature a sacred obliga-
tion, is nevertheless, in most civilized nations, a civil
SMELT v. COUNTY OF ORANGE 5055
contract, and usually regulated by law. Upon it soci-
ety may be said to be built, and out of its fruits
spring social relations and social obligations and
duties, with which government is necessarily
required to deal.
Id. at 165. Ten years later, the Court further explicated that
view when it said:
[Marriage] is something more than a mere contract.
The consent of the parties is of course essential to its
existence, but when the contract to marry is executed
by the marriage, a relation between the parties is cre-
ated which they cannot change. Other contracts may
be modified, restricted, or enlarged, or entirely
released upon the consent of the parties. Not so with
marriage. The relation once formed, the law steps in
and holds the parties to various obligations and lia-
bilities. It is an institution, in the maintenance of
which in its purity the public is deeply interested, for
it is the foundation of the family and of society,
without which there would be neither civilization nor
progress.
Maynard v. Hill, 125 U.S. 190, 210-11, 8 S. Ct. 723, 729, 31
L. Ed. 654 (1888). More recently, the Court has noted that:
“Marriage is one of the ‘basic civil rights of man,’ fundamen-
tal to our very existence and survival.” Loving v. Virginia,
388 U.S. 1, 12, 87 S. Ct. 1817, 1824, 18 L. Ed. 2d 1010
(1967). And still more recently, the Court reiterated that mar-
riage is “ ‘fundamental to the very existence and survival of
the race.’ ” Zablocki v. Redhail, 434 U.S. 374, 384, 98 S. Ct.
673, 680, 54 L. Ed. 2d 618 (1978).
[3] Because of its vital importance to society, while the
people through their governments have always encouraged
marriage, they have always regulated it. Generally that has
been at the state level. As the Court noted as long ago as
5056 SMELT v. COUNTY OF ORANGE
1877, “[t]he State . . . has absolute right to prescribe the con-
ditions upon which the marriage relation between its own citi-
zens shall be created, and the causes for which it may be
dissolved.” Pennoyer v. Neff, 95 U.S. 714, 734-35, 24 L. Ed.
565 (1877), overruled on other grounds by Shaffer v. Heitner,
433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977). Then,
in 1888, the Court had this to say:
Marriage, as creating the most important relation in
life, as having more to do with the morals and civili-
zation of a people than any other institution, has
always been subject to the control of the legislature.
That body prescribes the age at which parties may
contract to marry, the procedure or form essential to
constitute marriage, the duties and obligations it
creates, its effects upon the property rights of both,
present and prospective, and the acts which may
constitute grounds for its dissolution.
Maynard, 125 U.S. at 205, 8 S. Ct. at 726. Again, “the state
court is no doubt correct in asserting that marriage is a social
relation subject to the State’s police power.” Loving, 388 U.S.
at 7, 87 S. Ct. at 1821. Similarly, where the territories were
concerned, the Court held that Congress may impose limita-
tions on marriage. See Reynolds, 98 U.S. at 166.
[4] California has exercised that undoubted police power,
and in so doing has expressed its concerns and beliefs about
this sensitive area. Thus, as this case shows us, the people of
the State of California have defined what marriage is, viz. a
consensual, contractual personal relationship between “a man
and a woman,” which is solemnized. Cal. Fam. Code § 300;
see also Cal. Fam. Code §§ 301, 308.5.18 By the same token,
18
The definition is not peculiar; indeed it is traditional. See, e.g., 2 Sam-
uel Johnson, A Dictionary of the English Lanuage (London, W. Strahan
et. al. 1755) (Marriage is: “The act of uniting a man and woman for life.”
To marry is: “To join a man and woman.”); Noah Webster, A Compendi-
SMELT v. COUNTY OF ORANGE 5057
California has regulated and limited the institution in a num-
ber of ways. For example: those under 18 cannot marry with-
out somebody else’s consent;19 to marry, you must be
unmarried (in other words, no polygamy or polyandry);20 mar-
riages within certain degrees of consanguinity are forbidden.21
[5] But as important as the institution of marriage is, our
purpose here is not to write a paean to its past and contempo-
rary glories; it is the more mundane purpose of pointing to the
fact that it is difficult to imagine an area more fraught with
sensitive social policy considerations in which federal courts
should not involve themselves if there is an alternative.22 In
short, the first Pullman factor is easily met, and we now turn
to the second one.
[6] When we do so, we think it is equally apparent that the
resolution of the Marriage Cases in the California courts may
not only narrow, but even eliminate, any need for federal con-
stitutional adjudication regarding Smelt and Hammer’s
attacks on the California statutory provisions in this case. If
ous Dictionary of the English Language 185 (1806) (Marriage is: “the act
of joining man and woman.”); Webster’s Third New International Dictio-
nary 1384 (3d ed. 1986) (Marriage is: “the state of being united to a per-
son of the opposite sex as husband or wife.”); Black’s Law Dictionary 972
(6th ed. 1990) (Marriage is: “Legal union of one man and one woman as
husband and wife.”); The Compact Oxford English Dictionary 1039 (2d
ed. 1994) (Marriage is: “The condition of being a husband or wife . . . .”).
19
Cal. Fam. Code §§ 301, 302.
20
Cal. Fam. Code §§ 301, 2201.
21
Cal. Fam. Code § 2200.
22
We do not overlook Smelt and Hammer’s claim that this case touches
on First Amendment issues, which should dissuade us from abstention.
See Ripplinger, 868 F.2d at 1048. But it is difficult, or impossible, to see
a true speech problem here, which is what Ripplinger was concerned with.
All that is involved here is the failure to issue a marriage license. In all
events, state litigation on the issues is already well underway. See Almodo-
var, 832 F.2d at 1141; see also Askew v. Hargrave, 401 U.S. 476, 477-78,
91 S. Ct. 856, 857-58, 28 L. Ed. 2d 196 (1971) (per curiam).
5058 SMELT v. COUNTY OF ORANGE
the California courts ultimately determine that the sections in
question violate the California constitution, we will have no
need to consider the federal constitutional claims regarding
those sections. That brings us to the third Pullman factor.
[7] Again, the third factor is easily satisfied in the context
of this case. We simply “cannot predict with any confidence
how [the California Supreme Court] would decide” the state
constitutional questions. Pearl Inv. Co. v. City & County of
S.F., 774 F.2d 1460, 1465 (9th Cir. 1985); see also Fireman’s
Fund, 302 F.3d at 930-40. Especially is that true where, as
here, the California Supreme Court will be faced with a con-
stitutional issue that presents difficult questions of state con-
stitutional law, which it has not yet passed upon.23 Added to
that is the fact that a California Superior Court has found the
state statutes to be unconstitutional, and review of that deci-
sion is now pending in a California Court of Appeal in the
Marriage Cases.
[8] Therefore, all factors in the Pullman analysis point
toward abstention. Nor have we any reason to assume that the
California Supreme Court will construe the California Consti-
tution in the same way as the federal courts construe the
United States Constitution.24 That makes this a particularly
good case for Pullman abstention. See Columbia Basin, 268
F.3d at 806. The district court did not abuse its discretion
when it abstained.
23
The Court has decided that a county clerk and county recorder could
not disobey state statutes about marriage based on their personal opinions
about the constitutionality of those statutes. See Lockyer v. City & County
of S.F., 33 Cal. 4th 1055, 1119-20, 95 P.3d 459, 498-99, 17 Cal. Rptr. 3d
255, 272-74 (2004). However, the Court did not decide the question of
whether the state laws on marriage were constitutional. Id. at 1125, 95
P.3d at 502, 17 Cal. Rptr. 3d at 277 (Moreno, J., concurring).
24
For example, California’s constitutional law on privacy is different
from federal law on that subject. See Am. Acad. of Pediatrics v. Lungren,
16 Cal. 4th 307, 326, 940 P.2d 797, 808, 66 Cal. Rptr. 2d 210, 221 (1997).
SMELT v. COUNTY OF ORANGE 5059
II. DOMA; Standing
As we earlier noted, Smelt and Hammer have attacked both
of the operative sections of DOMA.25 However, no state has
determined that they are married for state purposes, and they
do not suggest that they have applied for and been denied
some federal benefit. Thus, we are necessarily faced with the
issue of standing. We would be, even if neither the district
court nor the parties had addressed that issue. See Arakaki,
314 F.3d at 1097; WMX Techs., Inc. v. Miller, 104 F.3d 1133,
1135 (9th Cir. 1997) (en banc). That, of course, is because our
jurisdiction is limited to cases and controversies. See U.S.
Const. art. III, § 2, cl. 1.
As the Supreme Court has pointed out: “The standing
requirement is born partly of an idea, which is more than an
intuition but less than a rigorous and explicit theory, about the
constitutional and prudential limits to the powers of an une-
lected, unrepresentative judiciary in our kind of government.”
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124
S. Ct. 2301, 2308, 159 L. Ed. 2d 98 (2004) (internal quotation
marks omitted).
[9] “Over the years,” the Supreme Court has “established
that the irreducible constitutional minimum of standing con-
tains three elements.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).
Those are:
First, the plaintiff must have suffered an “injury in
fact”—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) “ac-
tual or imminent, not ‘conjectural’ or ‘hypotheti-
cal.’ ” Second, there must be a causal connection
between the injury and the conduct complained of—
25
See DOMA Section 2 (28 U.S.C. § 1738C) and DOMA Section 3 (1
U.S.C. § 7).
5060 SMELT v. COUNTY OF ORANGE
the injury has to be “fairly . . . trace[able] to the chal-
lenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party
not before the court.” Third, it must be “likely,” as
opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”
Id. at 560-61, 112 S. Ct. at 2136 (citations omitted); see also
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).
The burden of showing that there is standing rests on the
shoulders of the party asserting it. Defenders of Wildlife, 504
U.S. at 561, 112 S. Ct. at 2136.
[10] But there is still more to standing requirements
because, beyond constitutional standing, there are prudential
standing principles to which “the federal judiciary has also
adhered.” Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 474, 102
S. Ct. 752, 760, 70 L. Ed. 2d 700 (1982). As the Supreme
Court has put it:
[T]his Court has held that “the plaintiff generally
must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or
interests of third parties.” In addition, even when the
plaintiff has alleged redressable injury sufficient to
meet the requirements of Art. III, the Court has
refrained from adjudicating “abstract questions of
wide public significance” which amount to “general-
ized grievances,” pervasively shared and most
appropriately addressed in the representative
branches. Finally, the Court has required that the
plaintiff’s complaint fall within “the zone of interests
to be protected or regulated by the statute or consti-
tutional guarantee in question.”
Id. at 474-75, 102 S. Ct. at 760 (citations omitted); see also
Elk Grove, 542 U.S. at 12, 124 S. Ct. at 2309.
SMELT v. COUNTY OF ORANGE 5061
With those principles in hand, we can approach Smelt and
Hammer’s attacks on DOMA. We must decide whether Smelt
and Hammer have established constitutional and prudential
standing as to either of the two relevant DOMA sections.
They have not.
[11] We first consider Section 2 of DOMA (28 U.S.C.
§ 1738C), which, in effect, indicates that no state is required
to give full faith and credit to another state’s determination
that “a relationship between persons of the same sex . . . is
treated as marriage.” The insurmountable hurdle that Smelt
and Hammer face here is the requirement that they show some
actual or imminent injury as opposed to a mere conjectural or
hypothetical one.
[12] No state has determined that Smelt and Hammer are
married. In fact, as matters now stand California will not do
so.26 Were they to change their residence to Massachusetts,
their situation might change,27 but they have placed nothing
before us to suggest that they have gone, or intend to go, to
that state. In sum, while Section 2 may affect someone who
has been declared married in some state, Smelt and Hammer
do not come within that category of people. That being so, we
agree with the district court28 that Smelt and Hammer lacked
standing to attack Section 2 of DOMA. But, when it comes
to Section 3 of DOMA, we depart from the district court’s
opposite conclusion.29
26
Even if Smelt and Hammer were now in a California registered
domestic partnership, that is not by any means a marriage. See Knight v.
Superior Court, 128 Cal. App. 4th 14, 30, 26 Cal. Rptr. 3d 687, 699
(2005); cf. Cal. Fam. Code § 297.5(k) (stating that the section does not
modify any federal benefits or protections).
27
See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 968 (Mass.
2003); see also Cote-Whitacre v. Dep’t of Pub. Health, 844 N.E.2d 623,
635 (Mass. 2006) (Spina, J., concurring).
28
See Smelt I, 374 F. Supp. 2d at 870-71.
29
See id. at 871.
5062 SMELT v. COUNTY OF ORANGE
[13] Section 3 of DOMA (1 U.S.C. § 7) is definitional. The
word “marriage” and the word “spouse” are defined for the
purposes of federal statutes, rules and regulations. Marriage,
it declares, “means only a legal union between one man and
one woman as husband and wife.” Id.30 It does not purport to
preclude Congress or anyone else in the federal system from
extending benefits to those who are not included within that
definition.
[14] Here, as with Section 2 of DOMA, Smelt and Hammer
are not even married under any state law, or, for that matter,
under the law of any foreign country. No doubt they wish they
could be, but, again, they are not. We, therefore, do not see
how they can claim standing to object to Congress’s defini-
tion of marriage for federal statutory and regulatory purposes.
It certainly is not a question of Congress’s refusal to recog-
nize their status. DOMA itself simply does not injure them or
exclude them from some undefined benefit to which they
might have been or might someday be entitled. In fact, they
do not suggest that they have applied for any federal benefits,
much less been denied any at this point. See Madsen v. Boise
State Univ., 976 F.2d 1219, 1220-21 (9th Cir. 1992) (per
curiam). That they might someday be married under the law
of some state or ask for some federal benefit which they are
denied is not enough. See Scott v. Pasadena Unified Sch.
Dist., 306 F.3d 646, 655 (9th Cir. 2002); San Diego County
Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th Cir.
1996). In short, they have not spelled out a legally protected
interest, much less one that was injured in a concrete and par-
ticularized way.
[15] We, of course, recognize that the district court relied
on the fact that Smelt and Hammer had a kind of “legal
union” under California law because they were registered
30
As we noted in footnote 18 with respect to the similar California stat-
utes, that definition is not extraordinary; it is traditional.
SMELT v. COUNTY OF ORANGE 5063
domestic partners.31 However, that does not affect the
alchemy at all. California does not use the phrase “legal
union”; it merely gives registered domestic partners certain
legal rights and obligations.32 And, those are certainly not the
only legal relationships or unions possible if, indeed, we are
going to move beyond the kinds that have historically defined
a marriage. An ordinary partnership is a kind of legal union;
so, too, in a way, is that special type of contract (or partner-
ship) that can be formed when a man and a woman agree to
live together outside of marriage. See, e.g., Marvin v. Marvin,
18 Cal. 3d 660, 683-84, 557 P.2d 106, 122-23, 134 Cal. Rptr.
815, 831-32 (1976). And when a group forms a corporation,
there is a kind of legal union also. None of those possible
relationships or unions can logically be said to confer stand-
ing to attack DOMA’s definition on its face simply because
it refers to legal unions. There is no good reason to treat Smelt
and Hammer’s relationship any differently. Thus, the mere
fact that Smelt and Hammer were in a kind of recognized
legal relationship in California is not sufficient to confer
standing upon them to attack Section 3 of DOMA on its face.33
[16] But even if Smelt and Hammer were able to establish
constitutional standing, their case stumbles on at least one of
the prudential standing hurdles. It is easy to discern that Smelt
and Hammer are asking the court to decide “ ‘abstract ques-
tions of wide public significance’ which amount to ‘general-
ized grievances,’ pervasively shared and most appropriately
addressed in the representative branches.” Valley Forge, 454
U.S. at 474-75, 102 S. Ct. at 760.34
31
See Cal. Fam. Code § 297.5.
32
Id.
33
If it were, as we pointed out in footnote 4, that legal relationship has
been dissolved under California law. If it conferred standing at first, it no
longer can. See Elk Grove, 542 U.S. at 11-13, 124 S. Ct. at 2308-09.
34
We recognize that Congress did already address the definition of mar-
riage in DOMA, but Smelt and Hammer’s generalized attack remains a fit
topic for that body rather than the courts. For example, legislation about
5064 SMELT v. COUNTY OF ORANGE
[17] While a scry of the complaint might lead one to think
that the issue here is not general, a true perscrutation leads to
the opposite conclusion. Section 3 of DOMA is merely defini-
tional, and we are told that the words it defines are found in
well over one thousand federal statutory enactments.35 Again,
Smelt and Hammer are not in a relationship that has been
dubbed marriage by any state, much less by the State of Cali-
fornia. True, they are in a relationship, but their attack on
DOMA in its multitude of applications is one that every tax-
payer and citizen in the country could theoretically bring on
the basis that the definition does not include some favorite
grouping within its definition of marriage. Thus, anyone could
argue that some federal statute might deprive some person in
some group of some benefit. Any citizen36 or taxpayer37 could
as easily claim that some application or other of the DOMA
definition to some as yet undesignated statute, which confers
some public benefit or right, might exclude that person
because DOMA requires a legal union, a man, and a woman.
[18] Because of the generality of the abstract facial attack
made here, neither we, nor anyone else, can know whether in
the context of some particular statute as applied to some par-
ticular person in some particular situation Congress’s use of
the word “marriage” will amount to an unconstitutional classi-
fication. Thus, Smelt and Hammer’s facial attack on Section
same-sex couples is currently pending in Congress. See Domestic Partner-
ship Benefits and Obligations Act, H.R. 3267, 109th Cong. (2005); Family
and Medical Leave Inclusion Act, H.R. 475, 109th Cong. (2005); Mar-
riage Protection Amendment, S.J. Res. 1, 109th Cong. (2005).
35
It seems that Smelt and Hammer would leave us to fossick in over a
thousand statutory provisions to find those that may apply to them at this
time should they seek benefits.
36
That could be a polygamist, a polyandrist, one or both of two room-
mates or friends (perhaps loving friends), any member of a group of two
or more people, a member of a partnership, a corporation, and—as the lat-
ter suggests—even a single person.
37
Supra note 36.
SMELT v. COUNTY OF ORANGE 5065
3 of DOMA is foreclosed because countenancing it would
ignore “unambiguous limitations on taxpayer and citizen
standing.” Valley Forge, 454 U.S. at 488, 102 S. Ct. at 767.
They cannot establish prudential standing at this juncture. In
so stating, we do not question the “ ‘sincerity of [their] stated
objectives and the depth of their commitment to them.’ ” Id.
at 486 n.21, 102 S. Ct. at 766 n.21. “[B]ut standing is not
measured by the intensity of the litigant’s interest or the fer-
vor of his advocacy.” Id. at 486, 102 S. Ct. at 766. Motivation
alone is not enough. Id. at 486 n.21, 102 S. Ct. at 766 n.21.
No doubt Smelt and Hammer find DOMA “personally offen-
sive,” but that does not suffice to give them standing. Schaffer
v. Clinton, 240 F.3d 878, 884 (10th Cir. 2001) (A party’s
“moral outrage, however profoundly and personally felt, does
not endow him with standing to sue.”); see also Elk Grove,
542 U.S. at 11-18, 124 S. Ct. at 2308-12 (deciding that despite
his strongly held atheistic beliefs, father lacked standing to
challenge Pledge of Allegiance use at daughter’s public
school); Flora v. White, 692 F.2d 53, 54 (8th Cir. 1982) (per
curiam) (holding that adverse psychological impact due to a
religious test in state constitution will not suffice where no
showing that party has or will have the provision applied to
her).
If it be thought that this approach will insulate Section 3
from attack because nobody can, or will, have standing to
bring an action, we must respond as has the Supreme Court.
In the first place, “[t]he federal courts were simply not consti-
tuted as ombudsmen of the general welfare.” Valley Forge,
454 U.S. at 487, 102 S. Ct. at 766-67. Secondly, as the Court
said:
But “[t]he assumption that if [appellants] have no
standing to sue, no one would have standing, is not
a reason to find standing.” This view would convert
standing into a requirement that must be observed
only when satisfied. Moreover, we are unwilling to
assume that injured parties are nonexistent simply
5066 SMELT v. COUNTY OF ORANGE
because they have not joined [appellants] in their
suit. The law of averages is not a substitute for
standing.
Id. at 489, 102 S. Ct. at 767 (first alteration in original) (cita-
tion omitted). Similarly, we will not assume that, considering
all of the individuals affected by all of the statutes that include
the word “marriage,” nobody will be able to complain. Cer-
tainly, we cannot say that there is no person who will or can
bring an action when some particular statute is applied to that
person in some particular way. See, e.g., Adams v. Howerton,
673 F.2d 1036, 1041-43 (9th Cir. 1982); In re Kandu, 315
B.R. 123, 130 (Bankr. W.D. Wash. 2004). As it is, however,
not only are Smelt and Hammer’s claims excessively general-
ized, but also it is impossible to ascertain whether Smelt and
Hammer will ever be within the zone of interest of some par-
ticular enactment.
[19] In fine, Smelt and Hammer lack standing to attack the
constitutionality of Section 3 of DOMA.
CONCLUSION
Smelt and Hammer have presented us with issues of veriest
importance, issues which touch “the foundation of the family
and of society.” Maynard, 125 U.S. at 211, 8 S. Ct. at 729.
However, they lack standing to attack the federal law—
Sections 1 and 2 of DOMA—and the district court properly
abstained from deciding their attack on state law.
Therefore, we affirm the district court’s decision to abstain
until the Marriage Cases are resolved, and the district court’s
decision to dismiss as to the DOMA Section 2 claim. How-
ever, we vacate its decision regarding the merits of the
DOMA Section 3 claim and remand with directions to dismiss
that claim.
AFFIRMED in part, VACATED in part, and
REMANDED.
SMELT v. COUNTY OF ORANGE 5067
FARRIS, Circuit Judge, concurrence:
I concur in the result.