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Appeals Court Sidesteps Gay Marriage Constitutional Question

A federal appeals court on Friday sidestepped whether it was unconstitutional under federal and state law to deny gays and lesbians the right to marry, leaving the issue to state courts to decide.

The case, brought by two gay Orange County men who were denied a marriage license, leaves Massachusetts as the only state allowing same-sex marriage.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said the couple should await the outcome of California litigation challenging the state's law banning gay nuptials.

Judge Ferdinand Fernandez wrote 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."

A San Francisco trial judge has already declared the marriage ban invalid, but the decision was stayed for review by a state appeals court, which is expected to hear arguments soon.

The federal lawsuit exposed a rift in the same-sex marriage movement, with major civil rights groups opposing it because it could have led the U.S. Supreme Court to throw out assertions that it was unconstitutional to treat homosexuals differently from heterosexuals.

Jon Davidson, legal director of the Lambda Legal Defense and Education Fund, was relieved by Friday's decision.

"For us, the battle is still under way in state courts, which is where we believe this should be, and the 9th Circuit agreed with us," Davidson said.

Lambda, the American Civil Liberties Union and other civil rights groups are waging gay marriage battles in several states, including California, Iowa, Washington, New Jersey and New York. Without more states recognizing same-sex marriage, Davidson said, the movement today does not have a chance before the U.S. Supreme Court.

While Friday's federal case challenged both California and federal rules barring same-sex marriage, the court noted that the federal judiciary should stay out of the fight now and leave it to the states.

Fernandez, joined by judges Sidney Thomas and Jerome Farris, added that the couple does not have legal standing to sue over federal laws against same-sex marriage because the pair has not attempted to acquire any federal benefits of marriage, such as filing a married income tax return.

"That they may someday be married under the law of some state or ask for some federal benefit is not enough," Fernandez wrote.

The couple, Arthur Smelt and Christopher Hammer, who are both 46, did not immediately return a message left at their Mission Viejo house. Their attorney, Arthur Gilbert of Santa Ana, was not immediately available.

Despite recent polls showing Americans increasingly accept same-sex marriage, the movement has seen a backlash in the two years since Massachusetts issued marriage licenses and San Francisco Mayor Gavin Newsom made a short-lived attempt to allow gays and lesbians to marry at City Hall.

Since 2004, more than a dozen states have approved constitutional bans on same-sex marriage and 19 now outlaw the practice. Voters in about six states could be asked to amend theirs similarly this year.