In a decision released on September 28, 2011, U.S. District Judge Stephen V. Wilson of the Central District of California ruled that binding 9th Circuit precedent requires him to dismiss a lawsuit challenging the U.S. Customs and Immigration Service's refusal to recognize a same-sex marriage between a U.S. citizen and a citizen of Indonesia. Judge Wilson relied on a nearly-thirty-year-old ruling that predates positive advances in gay rights in the Supreme Court.
The plaintiffs, Lui and Roberts, married in Massachusetts on April 9, 2009. That same day, Roberts, the U.S. citizen, filed a petition on behalf of his husband with the California Service Center of the US Customs and Immigration Service, seeking recognition of his husband's spousal status through an I-130 Petition. The Service denied the petition and was upheld by the Board of Immigration Appeals on January 20, 2011. The men then filed an action with the district court, claiming that the government's refusal to recognize their marriage constitutes "sex discrimination" in violation of the Immigration & Nationality Act's anti-discrimination provision, as well as violating their 5th Amendment rights to due process and equal protection. In effect, then, they are challenging Section 3 of DOMA, which bars federal agencies from recognizing same-sex marriages. They hopefully cited in support of their case Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010), appeal pending in the 1st Circuit, in which the court held Section 3 unconstitutional in a case involving claims for various federal benefits.
This is one of the cases in which the House of Representatives has intervened to defend DOMA, while the Justice Department, nominally the defendant, has switched sides and argued, in support of the plaintiffs, that Section 3 is unconstitutional.
Unfortunately, in the 9th Circuit, anybody seeking recognition of a same-sex marriage in the immigration context faces the precedent of Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), in which the court upheld the Immigration Service's denial of an I-130 petition on behalf of a same-sex couple who married in Colorado. (A county clerk issued a marriage license to this same-sex couple; at the time, the state had a gender-neutral marriage statute which had not been definitely construed by any court to ban same-sex marriages.) The court in Adams rejected all arguments by the petitioners, including the claim of sex discrimination and the claim of 5th Amendment (due process and equal protection) violations. Adams has never been overruled or disavowed by the 9th Circuit, and is thus technically binding on all trial judges in that circuit. The circuit court's decision was, ironically enough, written by Anthony Kennedy, who later wrote the gay rights decisions in Romer v. Evans and Lawrence v. Texas on the Supreme Court, which laid the foundation for current attacks on DOMA!
"In Adams, the Ninth Circuit held that 'Congress's decision to confer spousal status . . . only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements,'" wrote Judge Wilson. "The fact that DOMA was enacted years after the Ninth Circuit's decision in Adams is not persuasive given that marriage as defined in Section 3 of DOMA is consistent with Adams. While Plaintiffs and Defendants point out the alleged deficiencies in the reasoning in Adams, this Court is not in a position to decline to follow Adams or critique its reasoning simply because Plaintiffs and Defendants believe that Adams is poorly reasoned."
Judge Wilson pointed out that the prerogative to overturn a 9th Circuit precedent "rests not with this District Court, but with the en banc Ninth Circuit and the Supreme Court." Judge Wilson signalled his awareness of the case pending in the 1st Circuit, but noted that "the plaintiffs in Gill were spouses of federal employees who brought suit on the basis of denial of certain federal marriage-based benefits, thus the context of that case was somewhat different from the present case, which arose in the context of immigration law. More importantly, the court's decision in Gill does not affect this Court's obligation to follow binding Ninth Circuit precedent."
In other words, if this case is to be won by plaintiffs, it needs to be won at the appellate level, as trial courts are bound to follow any precedent on point. The only real distinction between Adams and this case is that in Adams, the validity of the marriage under Colorado state law was dubious, whereas the validity of the plaintiffs' marriage in this case is, as a matter of Massachusetts law, unquestioned.