Confusing Fed Courts doctrine, same-sex marriage, and DOMA

Arthur Bruno Smelt and Christopher David Hammer are a couple living in Orange County, California who have spent a big chunk of this decade trying to be the Mildred and Richard Loving of the same-sex marriage movement.

After applying for (and being denied) a California marriage license back in 2004 or 2005, Smelt and Hammer filed suit in federal court, challenging the constitutionality of the denial of the license, as well as the constitutional validity of the Defense of Marriage Act ("DOMA"). The Ninth Circuit ultimately affirmed the district court decision to abstain from the challenge to state law on Pullman grounds, deferring to then-pending state constitutional challenge to California's one-man/one-woman definition of marriage (what became the California Supreme Court's 2008 decision striking-down the state definition of marriage, subsequently overridden by Proposition 8, which was upheld by the court in the face of a state constitutional challeneg). The court also held that Hammer and Smelt lacked standing to challenge the non-recognition provisions of DOMA.

In the interim between the 2008 decision and enactment of Prop 8, Smelt and Hammer were married (and California still recognizes that marriage as valid). They then brought a constitutional challenge in California state court to DOMA and to the failure of the entire United States to eliminate distinctions as to who can marry. Named defendants were the United States of America, the State of California, Does 1-1000 (I have not found the complaint, so I am not sure who those are). The United States removed the action to federal court under 28 U.S.C. § 1442 (removal by the United States). The U.S. then moved to dismiss for lack of subject matter jurisdiction--arguing that the United States could not have been sued in state court in California because of sovereign immunity and the federal court's derivative jurisdiction after removal is the same as the state court's original jurisdiction. Last week, the district court agreed.

I am thoroughly confused by a number of decisions that Smelt, Hammer, and their lawyers (I assume there are lawyers; the district court opinion does not indicate that they are acting pro se) have made. From the outside looking in, they appear desperate to go it alone and to be heroes on this issue. But their strategic choices have been bizarre and have reflected ignorance of core Fed Courts doctrine.

1) Two things must happen for anyone to have standing to challenge DOMA: a) They must be married and b) They must try to do something that triggers the (allegedly) discriminatory limits of DOMA--namely, either attempting to gain federal benefits as a married couple or to have their marriage recognized in another state. Smelt and Hammer never have tried to do either of those things, as far as I can tell (either before they were married or since they have been married), so I am not sure why their lawyers continue to believe they could be successful in challenging DOMA this way, given existing standing doctrine.

2) Why did they sue the United States? If their lawyers went to law school (and took Fed Courts or Civil Rights), they should know you cannot sue the United States for constitutional violations. You must sue responsible executive officers.

3) For that matter, why did they go to state court, knowing that any federal defendant would simply remove? And any federal constitutional claim would be a basis for removal.

4) Last week's disposition of the case turned on the unique removal doctrine of derivative jurisdiction, under which the federal court to which a case is removed lacks jurisdiction if the original court lacked jurisdiction. That doctrine has been statutorily overridden in general removal cases, but not in federal-government or federal-officer removal cases such as this one. I am not entirely sure the benefits of the government's strategy of removing-then-dismissing, rather than just dismissing; maybe because the appeal now is in the federal system. Still, this case just seems so obviously defective, no strategy can go wrong.

5) At some level, I think Smelt and Hammer still are reeling from being screwed in the first instance. As I have argued, Pullman abstention was unwarranted in the first case because the federal court deferred to state law litigation of issues under parallel state constitutional provisions (equal protection and due process). But there is no rule (and should not be any rule) requiring a plaintiff to exhaust state constitutional arguments before moving to federal constitutional arguments where parallel substantive rights are at issue. They should have been able to go forward on their original constitutional challenge to the denial of a marriage license.

6) A bit of patience, strategy, and knowledge of the doctrines could permit Smelt and Hammer to move forward in a real challenge to parts of DOMA. They need to apply for some federal benefits as a married couple (social security, whatever); have those benefits denied because; then sue the responsible federal officer who denied those benefits (not the United States), arguing the unconstitutionality of that portion of DOMA that defines marriage as between one man and one woman for federal law and federal programs, which likely was the cause of the denial of benefits.

7) It will be tougher to challenge the state-recognition provision of DOMA, just because of how the provision is written and its limited function beyond symbolism. It provides that no state is required to recognize an otherwise-valid same-sex marriage from another state; it kicks-in to justify the decision of one state to decline to recognize a another state's same-sex marriage. But states do not need DOMA to decline to recognize that out-of-state marriage; the Full Faith and Credit Clause has recognized a public-policy exception to recognition of foreign judgments. So even a federal court willing to say that, say, Utah acted unconstitutionally in failing to recognize the Smelt/Hammer California marriage could do so without having to touch DOMA, depending on the arguments the state made.

8) Ironically, Smelt and Hammer have run against a preference for big group impact litigation of constitutional issues. This partially explains the stretch to use Pullman in the first case--the court could avoid litigating this individual claim in deference to major impact litigation over the issue as a whole brought by knowledgeable cause lawyers. Thus, if Davoid Boies and Ted Olson go forward in litigating their intended federal constitutional challenge to same-sex marriage, we might see the court hearing any case by Smelt and Hammer to defer to the larger, group litigation. Despite the insistence (especially recently) on a return to the individual model of litigation and away from cause-oriented litigation, courts still seem aware of cause-centered cases and the completeness and expertise that goes into those cases. Similarly, I imagine leaders in the SSM movement have not been thrilled with Smelt's and Hammer's continued litigiousness, particularly given its incompetence.

Update, Tuesday:

My timing was good, because this has been a big week for DOMA discussions.

First, as noted in the comments, the National Law Journal had a story yesterday about a challenge to DOMA that just might work, brought by several people in Massachusetts who already have applied for, and been denied, some federal benefits (health insurance, disability, survivors' benefits) that ordinarily are available to married persons. No standing problems; no naming-the-wrong-defendant problems. And it might have legs. Mike Dorf also commented on a parallel challenge to DOMA, brought by the Massachusetts attorney general.

Second, Hillel Levin has a new paper on the conflicts-of-laws issues underlying same-sex marriage, which states are going to have to wrestle with, with or without DOMA.

Third, an interesting Fed Courts thought experiment: The plaintiffs in the Massachusetts case actually sought and were denied benefits. But at what point might they have been able to get into court? If they could have alleged a present intent to seek benefits or to claim marital status on their 2010 tax returns, would that have been enough to establish standing and to create a ripe controversy? Ordinarily, yes, a plaintiff can bring such an anticipatory, pre-enforcement challenge to an existing law, on a showing of specific intent to engage in conduct that triggers the unconstitutional law so as to satisfy standing.

But the right to do this (as discussed in Ex Parte Young) often is premised on the idea that the alternative is to wait for the law to be enforced, often through criminal prosecution and the risk of imprisonment, pretty big risks to take. So the pre-enforcement challenge allows persons to pursue the constitutional issue with less risk. But here, there is no risk of criminal punishment. The ability to trigger enforcement of DOMA rests entirely with the would-be challenger to the law--all he must do is request those benefits and have them denied. So would the courts have accepted an anticipatory challenge in this type of case?