RICHARD FRANK ADAMS and ANTHONY CORBETT SULLIVAN, Plaintiffs-Appellants,

JOSEPH D. HOWERTON,

ADAMS v. HOWERTON

No. 80-5209

UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

October 7, 1981, Argued

February 25, 1982, Decided

PRIOR HISTORY

COUNSEL: David M. Brown, Robert A. DePiano, Brown, Weston & Sarno, Beverly Hills, Cal., for plaintiffs-appellants.

Dzintra I. Janavs, Asst. U. S. Atty., Los Angeles, Cal., argued, for defendant-appellee; Andrea Sheridan Ordin, U. S. Atty., Eva S. Halbreich, Asst. U. S. Atty., Los Angeles, Cal., on brief.

JUDGES: Before WALLACE and TANG, Circuit Judges, and TURRENTINE*, District Judge.

* Honorable Howard B. Turrentine, United States District Judge,

Southern District of California, sitting by designation.

OPINION BY: WALLACE

We affirm.

I

II

Section 201(a) of the Act establishes immigration quotas and a system of preferential admissions based upon the existence of close family relationships. The section excludes immediate relatives of United States citizens from the quota limitations, which have been periodically revised by Congress.

8 U.S.C. @ 1151(a). Section 201(b) defines "immediate relatives" to include the spouses of United States citizens. 8 U.S.C. @ 1151(b). (See note 1)

Section 201(b) was added to the Act in its present form by the Immigration and Nationality Act Amendments of 1965, Pub.L. No. 89-236, @ 1, 79 Stat. 911. Neither that section nor any subsequent amendments further define the term "spouse" directly.

Cases interpreting the Act indicate that a two-step analysis is necessary to determine whether a marriage will be recognized for immigration purposes. The first is whether the marriage is valid under state law. The second is whether that state-approved marriage qualifies under the Act. Both steps are required. E.g., United States v. Sacco, 428 F.2d 264, 270 (9th Cir.) (construing 8 U.S.C. @ 1302, 1306(a), 1451(a), (e)), cert. denied, 400 U.S. 903, 91 S. Ct. 141, 27 L. Ed. 2d 140 (1970).

This same two-step analysis is appropriate under section 201(b). We first consider the validity of the marriage under state law.

In visa petition proceedings addressing this question, the Board of Immigration Appeals has held that the validity of a marriage is governed by the law of the [*1039] place of celebration. See In re Gamero, 14 I. & N. Dec. 674 (B.I.A.1974). See also Gee Chee On v. Brownell, 253 F.2d 814, 817 (5th Cir. 1958).

Because a valid marriage is necessary for spouse status under the immigration laws, In re P., 4 I. & N. Dec. 610, 613 (B.I.A.1952), we look to Colorado law to determine whether the Adams-Sullivan marriage is valid.

Adams and Sullivan argue, in effect, that we need not reach this question because each is a putative spouse under Colorado law. They claim that they held a good faith belief that they were married. The district judge rejected this claim as without merit, observing that Adams and Sullivan could not have been without doubts concerning the validity of their marriage. 486 F. Supp. at 1123. We need not reach the issue. Even if Adams and Sullivan held a good faith belief that they were legally married, it is clear that the provisions of Colorado law they cite were enacted not to confer validity on the marriage of a putative spouse, but rather to protect property rights and insure support for children when the invalidity of such a marriage is discovered. See Colo.Rev.Stat. @ 14-2-111 (1973).

It is not clear, however, whether Colorado would recognize a homosexual marriage. There are no reported Colorado cases on the subject. The Colorado Attorney General in an informal, unpublished opinion addressed to a member of the Colorado legislature three days after the alleged marriage in question occurred, stated that purported marriages between persons of the same sex are of no legal effect in Colorado. Colorado statutory law, however, neither expressly permits nor prohibits homosexual marriages. Some statutes appear to contemplate marriage only as a relationship between a male and a female. See Colo.Rev.Stat. @ 14-2-104 (1973) ("Formalities. Marriage between a man and a woman, licensed, solemnized, and registered ... is valid in this state.").

While we might well make an educated guess as to how the Colorado courts would decide this issue, it is unnecessary for us to do so. Furthermore, valid marriages entered into by parties not intending to live together as husband and wife are not recognized for immigration purposes. Garcia-Jaramil lo v. INS, 604 F.2d 1236, 1238 (9th Cir. 1979), cert. denied, 449 U.S. 828, 101 S. Ct. 94, 66 L. Ed. 2d 32 (1980); Volianitis v. INS, 352 F.2d 766 (9th Cir. 1965). See also Lutwak v. United States, 3 44 U.S. 604, 611, 73 S. Ct. 481, 486, 97 L. Ed. 593 (1953); United States v. Sacco, supra, 428 F.2d at 269-71.

Therefore, even though two persons contract a marriage valid under state law and are recognized as spouses by that state, they are not necessarily spouses for purposes of section 201(b).

We thus turn to the question of whether Congress intended that homosexual marriages confer spouse status under section 201(b). Where a statute has been interpreted by the agency charged with its enforcement, we are ordinarily required to accord substantial deference to that construction, and should follow it "unless there are compelling indications that it is wrong." New York Dept. of Social Services v. Dublino, 413 U.S. 405, 421, 93 S. Ct. 2507, 2517, 37 L. Ed. 2d 688 (1973); Faulkner v. Watt, 661 F.2d 809, 812 (9th Cir. 1981); United States v. Standard Oil Co. of California, 618 F.2d 511, 518 (9th Cir. 1980).

Thus, we must be mindful that the INS, in carrying out its broad responsibilities, has interpreted the term "spouse" to exclude a person entering a homosexual marriage.

While we do accord this construction proper weight, we base our decision primarily on the Act itself. See Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S. Ct. 2361, 2369, 60 L. E d. 2d 980 (1979); Usery v. First Nat'l Bank of Arizona, 586 F.2d 107, 111 (9th Cir. 1978).

Nothing in the Act, the 1965 amendments or the legislative history suggests that the reference to "spouse" in section 201(b) was intended to include a person of the same sex as the citizen in question. It is "a fundamental canon of statutory construction" that, "unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 314, 62 L. Ed. 2d 199 (1979). See Rhodes v. Republic Nat'l Life Ins. Co., 5 01 F.2d 1213, 1217 (9th Cir. 1974), cert. denied, 420 U.S. 928, 95 S. Ct. 1126, 43 L. Ed. 2d 398 (1975).

The term "marriage" ordinarily contemplates a relationship between a man and a woman. See Webster's Third New International Dictionary 1384 (1971); Black's Law Dictionary 876 (5th ed. 1979). The term "spouse" commonly refers to one of the parties in a marital relationship so defined. Congress has not indicated an intent to enlarge the ordinary meaning of those words. In the absence of such a congressional directive, it would be inappropriate for us to expand the meaning of the term "spouse" for immigration purposes. Consumer Prods. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed. 2d 766 (1980).

Our role is only to ascertain and apply the intent of Congress. See, e.g., Lavin v. Marsh, 644 F.2d 1378, 1381 (9th Cir. 1981); Hughes Air Corp. v. Public Utilities Comm'n of California, 644 F.2d 1334, 1337 (9th Cir. 1981).

Our conclusion is supported by a further review of the 1965 amendments to the Act. These amendments not only added section 201(b) in its present form, but also amended the mandatory exclusion provisions of section 212(a) of the Act, 8 U.S.C. @ 1182(a). Yet, both section 15(b) of the amendments, Pub.L. No. 89-236, @ 15(b), 79 Stat. 911, 919 (codified at 8 U.S.C. @ 1182(a)(4)), and the accompanying Senate Report, S.Rep. No. 748, 89th Cong., 1st Sess., reprinted in, (1965) U.S.Code Cong. & Ad.News 3328, 3343, clearly express an intent to exclude homosexuals.

[Editor's note: I believe these provisions were repealed in 1990 - any legal beagles please confirm]

See Boutilier v. INS, 387 U.S . 118, 121, 87 S. Ct. 1563, 1565, 18 L. Ed. 2d 661 (1967). As our duty is to ascertain and apply the intent of Congress, we strive to interpret language in one section of a statute consistently with the language of other sections and with the purposes of the entire statute considered as a whole. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S. Ct. 1893, 1898, 44 L. Ed. 2d 525 (1975). We think it unlikely that Congress intended to give homosexual spouses preferential [*1041] admission treatment under section 201(b) of the Act when, in the very same amendments adding that section, it mandated their exclusion. Reading these provisions together, we can only conclude that Congress intended that only partners in heterosexual marriages be considered spouses under section 201(b).

IV

We next consider the constitutionality of the section 201(b) so interpreted. Adams and Sullivan contend that the law violates the equal protection clause (See note 4) We need not and do not reach the question of the nature of the claimed right

Since that time, the Court's general reaffirmations of this principle have been legion. The Court without exception has sustained Congress' 'plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.' Boutilier v. Immigration and Nat uralization Service, 387 U.S. 118, 123 (87 S. Ct. 1563, 1567, 18 L. Ed. 2d 661) (1967).

"(O)ver no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens."

Section 201(b), 8 U.S.C. @ 1151(b), provides:

"The 'immediate relatives' referred to in subsection (a) of this section shall mean the children, spouses, and parents of a citizen of the United States: Provided, That in the case of parents, such children must be at least twenty-one years of age. The immediate relatives specified in this subsection who are otherwise qualified for admission shall be admitted as such, without regard to the numerical limitations in this chapter."

Because we do not reach the question of whether Colorado law permits homosexual marriages, we need not examine the constitutionality of the statute. We observe, however, that an appeal challenging a Minnesota law which authorized heterosexual but not homosexual marriages was dismissed by the Supreme Court for want of a substantial federal question. See Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), a case decided after Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), but before Zab locki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978). "A summary dismissal by the Supreme Court of an appeal from a state court for want of a substantial federal question ... operates as a decision on the merits." Carpenters Pension Trust v. Kronschnabel, 632 F.2d 745, 747 (9th Cir. 1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1004 (1981). See Hicks v. Miranda, 422 U.S. 332, 334, 95 S. Ct. 2281, 2284, 45 L. Ed. 2d 223 (1975).

Technically, the challenge to this construction of section 201(b) is based upon the equal protection "component" of the fifth amendment's due process clause. See Bolling v. Sharpe, 347 U.S. 4 97, 74 S. Ct. 693, 98 L. Ed. 884 (1954). See also Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct. 254, 257, 30 L. Ed. 2d 231 (1971). The equal protection clause itself, a portion of the fourteenth amendment, applies only to the states, not the federal government.

Adams and Sullivan contend that the right to marry is an intrinsic part of a constellation of personal rights variously described as rights of privacy and as components of substantive due process.

In Zablocki v. Redhail, supra, a case involving a traditional heterosexual marriage, the Supreme Court stated that "the right to marry is of fundamental importance." 434 U.S. at 383, 98 S. Ct. at 679. See also Loving v. Virginia, supra, 388 U.S. at 12, 87 S. Ct. at 1824; Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655 (1942).