UPDATE: U.S. Supreme Court temporarily stays ruling on same-sex marriage
PHOENIX -- The path to same-sex marriages in Arizona hit a bump Wednesday as a justice of the U.S. Supreme Court temporarily stayed Tuesday's ruling by the 9th U.S. Circuit Court of Appeals voiding a similar law in Idaho.
In a brief order, Justice Anthony Kennedy, who has immediate purview over the 9th Circuit, accepted pleas that came in the middle of the nigh from Idaho Gov. C.L. "Butch' Otter that he needs time to seek review of what the three-judge panel decided.
Otter pointed out that time was not on his side, as the appellate court, in declaring the laws of his state and Nevada voided, issued a mandate to require both states to start issuing marriage licenses Wednesday morning. Kennedy's order blocked that mandate -- but only for Idaho, as Nevada officials did not join Otter's request for a stay.
But that stay could be short lived: Kennedy gave challengers to the gay marriage bans until 5 p.m. Thursday to file their own arguments about why Otter's request for further delay should be rejected. That allows the full court to consider the issue as early as Friday and decide whether to keep the 9th Circuit ruling on hold or allow the same-sex weddings to proceed in Idaho.
What the full court decides also will affect what happens next in Arizona.
If Kennedy's stay remains in place, that undermines efforts here to convince U.S. District Court Judge John Sedwick that he should acknowledge the precedent set by Tuesday's ruling, summarily declare Arizona's ban illegal and order the state to start issuing marriage licenses to same-sex couples.
Conversely, if the court dissolves what Kennedy did, attorney Jennifer Pizer of the Lambda Legal Defense and Education Fund said that could convince Sedwick that further arguments by the Arizona Attorney General's Office are legally unnecessary and that, given the binding precedent of the 9th Circuit, the Arizona ban cannot stand.
Pizer said Idaho has an uphill battle.
She pointed out that the high court just this past Monday rejected similar pleas from other states to delay appellate court rulings that gays be immediately allow to marry. Pizer said Otter needs to convince the justices that the arguments he is making to stay the mandate are somehow different than those which were presented -- and rejected -- in the other cases.
"I can't imagine, for the life of me, what it would be because these arguments have been made exhaustively,' Pizer said. "The burden will be higher on Idaho to show there's something new and different.'
In their legal pleas early Wednesday morning to the court, attorneys for Otter sought to do just that.
Central to that is that the 9th Circuit ruling was based on the premise that laws banning same-sex marriage, by definition, constitute discrimination on the basis of sexual orientation. And in concluding that, the appellate court said that requires a deeper level of scrutiny to see if the state has any legitimate reason for such discrimination.
Otter's lawyers, in their petition, say that the state's ban should instead be tested against a lower legal standard: Is there a "rational basis' for the law, one that the governor believes the state could meet.
And the Idaho attorneys said they believe they can make a case that the appellate judges "abrogated the decisions of the state and its citizens acting through every available democratic channel to define marriage in the traditional way.' That, they argued, is an improper intrusion on state power.
Arizona Attorney General Tom Horne, who is defending the ban here, said Wednesday he does not intend to intercede in Idaho's request for a stay before the high court.
PHOENIX -- A federal appeals court on Tuesday voided bans on same-sex marriage in Idaho and Nevada, paving the way for gays to marry here.
In a unanimous ruling, the judges rejected arguments by officials in both states that there are legitimate -- and legal -- reasons to let heterosexual couples marry but not extend that right to same-sex couples. Judge Stephen Reinhardt, writing for the panel, said whatever the justification, it amounts to illegal discrimination.
"Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in 'family values,' ' the judge wrote. And the court said that what the states were doing comes down to a "message of disfavor' toward same-sex couples and their children.
"This is a message that Idaho and Nevada simply may not send,' Reinhardt wrote.
Attorney Jennifer Pizer of Lambda Legal Defense and Education Fund said she will "imminently' ask U.S. District Court Judge John Sedwick, handling a similar challenge to Arizona law, to summarily overturn Arizona's own ban and allow gay weddings to happen here.
That may not come without a fight.
Stephanie Grisham, a spokeswoman for Attorney General Tom Horne, said he and the lawyers are still studying Tuesday's ruling. She also said the 9th Circuit ruling is not final, as appeals can be filed to the U.S. Supreme Court.
But Tuesday's ruling comes just a day after the high court refused to delay the effects of similar findings by other appellate courts, an action that has paved the way for gays to now marry in more than half the states.
Pizer said there is no reason to believe that Sedwick would reach some different conclusion than the appellate judges.
"There is nothing being argued in our case, the state is not offering any arguments, that are different, that would require additional arguments,' Pizer said, including that the state should reserve marriage for those who can procreate.
"These arguments were before the 9th Circuit,' she continued. "They were rejected by the 9th Circuit, and rightly so.'
More to the legal point is that Tuesday's ruling, unless overturned, sets precedent for all the states in the region.
"That rule of law is binding on Arizona,' she said.
The governor's office had no comment. But Tuesday's ruling was greeting with anger by Cathi Herrod, president of the Center for Arizona Policy, who spearheaded a successful 2008 ballot measure banning same-sex marriage.
"By fundamentally undermining the right of the people to vote to protect marriage as the union of one man and one woman, the 9th Circuit court has not only usurped their authority but has taken another step to deny every child the best opportunity to have a mother and a father,' she said in a prepared statement.
But Herrod's arguments and those by the state about the benefits of restricting marriage to heterosexuals are virtually identical to those advanced by attorneys from Idaho and Nevada. And in each and every case, the 9th Circuit rejected them.
One of the prime arguments by the states is that the bans on same sex marriage do not discriminate on the basis of sexual orientation but on the basis of ``procreative capacity.' Put simply, defenders of the disparity note that straight couples can do something that gays cannot: Produce a child without a third party.
Reinhardt said that might represent "a justification for the discrimination worked by the laws.' But he said "it cannot overcome the inescapable conclusion that Idaho and Nevada do discriminate on the basis of sexual orientation.'
The appellate judges were no more kind to arguments that allowing gays to wed will somehow make the institution of marriage less attractive to heterosexuals. Reinhardt said the experience in Massachusetts, where same-sex marriage has been legal since 2004, shows no decrease in marriage rates or an increase in divorce rates in that time.
"It would seem that allowing couples that want to marry so badly that they have endured years of litigation to win the right to do so would reaffirm the state's endorsement, without reservation, of spousal and parental commitment,' he wrote.
Nor were the judges they swayed by contentions that children raised by two parents of the opposite sex are more likely to thrive, what Reinhardt referred to as an argument that those children "receive a better upbringing.' The court said that was not supported by any actual evidence.
Reinhardt judge acknowledged there may be some merit to arguments that because opposite-sex couples can accidentally conceive, marriage is important because it binds such couples together and to their children.
"Defendants' argument runs off the rails, however, when they suggest that marriage's stabilizing and unifying force is unnecessary for same-sex couples, because they always choose to conceive or adopt a child,' he continued. Reinhardt said the issue is that there is a child, not how it was conceived.
"Raising children is hard; marriage supports same-sex couples in parenting their children, just as it does opposite-sex couples,' he wrote.
And Reinhardt said the procreation-as-justification defense for why only heterosexual couples should marry falls apart for several reasons
One is that both Idaho and Nevada -- as well as Arizona -- allow people who cannot have children because they are infertile or too old to marry. And he said if states are particularly interested in increasing the number of children raised by married biological parents, there are other options, like rescinding the right to no-fault divorce -- or eliminating divorce entirely.
"Neither has done so,' Reinhardt wrote. "Such reforms might face constitutional difficulties of their own, but they would at least further the states' asserted interest in solidifying marriage.'
And the judge said if biological parentage is so crucial, states could ban assisted reproduction using donor sperm or eggs, gestational surrogacy -- and, for that matter, adoption by both opposite-sex and same-sex couples, all of which also are legal in Arizona.
"To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional,' Reinhardt wrote.
The court also brushed aside arguments that allowing gays to wed would threaten religious liberty of institutions and people in both states. Reinhardt said this isn't some law on public accommodations about having to bake a cake for a gay wedding.