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UPDATE: Arizona's same-sex marriage ban unconstitutional

Attorney General Tom Horne explains Friday why he chose not to appeal a judge's order voiding Arizona's constitutional provision defining marriage as solely between one man and one woman.  (Capitol Media Services photo by Howard Fischer)

Attorney General Tom Horne explains Friday why he chose not to appeal a judge's order voiding Arizona's constitutional provision defining marriage as solely between one man and one woman.  (Capitol Media Services photo by Howard Fischer)

PHOENIX -- Gays are now legally marrying in Arizona.

The historic move came just moments after Attorney General Tom Horne said Friday he will not appeal a decision earlier that morning by U.S. District Court Judge John Sedwick declaring Arizona's ban on same-sex weddings unconstitutional and immediately ordering the state to "permanently cease enforcement of those provisions of Arizona law declared unconstitutional by this order.' That followed a similar ruling earlier this week by the 9th U.S. Circuit Court of Appeals voiding similar laws in Nevada and Idaho.

"The probability of the 9th Circuit reversing today's district court decision is zero,' Horne said at a hastily called press conference just hours after Sedwick's ruling. "The probability of the U.S. Supreme Court accepting review of the 9th Circuit decision is also zero.'

And Horne said while he believes the rulings are wrong, he is bound by rules which make it unethical -- and subject to discipline -- for an attorney to file legal papers solely for the purpose of delay. He said that would be the case were he to appeal, calling such a move "an exercise in futility.'

Potentially more significant, Horne directed the clerks of superior courts in the state's 15 counties to immediately start issuing marriage licenses to same-sex couples.

"The emails have gone out,' he told reporters, noting that even before he announced his decision there already were 10 couples waiting at the clerk's office for Maricopa County.

Horne said he personally disagrees with Sedwick's ruling. He cited the 2008 voter-approved state constitutional amendment defining marriage in Arizona as solely between one man and one woman.

"We fought a revolution against England on the understanding that we're smart enough to rule ourselves as a people and we didn't need a British aristocracy ruling over us,' he said.

"I believe we're still smart enough to rule over ourselves as a people,' Horne continued. "And this is an important decision and it's a policy decision that should be made by the people and not by the courts.'

But Horne conceded that right of voters to set policy is not unlimited.

For example, he said Arizona voters could not legally deny marriage between people of different races or different religions. Horne said there are constitutional provisions prohibiting such discrimination.

"There's no provision in the Constitution protecting sexual orientation,' he said. "In my opinion, this would be a policy matter for the people to decide.'

Friday's order means more than gays living here can marry. It also requires Arizona to recognize same-sex weddings performed in other states.

"We're legal in Arizona, finally,' said the Rev. Debra Peevey who, with spouse Candy Cox went to Horne's press conference. Peevey, who in 1981 became the first openly gay person to be ordained by the Christian Church (Disciples of Christ), said the pair, who have been together 30 years, went to California in 2008 to get married when it became legal for same-sex couples to wed in that state.

Peevey, who works with Why Marriage Matters, said her organization was instrumental in arranging to have ministers of various faiths available at courthouses around the state so that gay couples could wed as soon as they got their licenses.

Gov. Jan Brewer, in a prepared statement, called Friday's ruling "not only disappointing but also deeply troubling that unelected federal judges can dictate the laws of individual states.' She said judges are creating rights "based on their own personal policy preferences.'

"Simply put, courts should not be in the business of making and changing laws based on their personal agendas,' Brewer said in her statement, saying "that power belongs to the states, and to the people.' She said such changes should be allowed only through the Legislature or at the ballot.

There was already an organization formed to put such a measure on the 2016 ballot. And the chances for approval appeared good, with a statewide poll last year of 700 adult heads of households finding that 55 percent said they would support allowing gays and lesbians to wed, with just 35 percent opposed.

But that same survey also showed a deep cultural divide along party lines: Just 36 percent of Republicans were in favor of repealing the 2008 ban.

Friday's ruling makes that initiative drive not only unnecessary but also makes what the majority thinks legally irrelevant.

Cathi Herrod, president of the Center for Arizona Policy, said Friday's ruling -- and even the failure of the U.S. Supreme Court to so far review similar rulings from elsewhere -- does not mean the fight over same-sex marriage is over.

She pointed out that several federal appellate courts have yet to weigh in on the issue. And Herrod said that if any one of them uphold a state's ban, that conflict between circuits could force the justices to step in.

Herrod has more than a passing interest in the issue. It was her organization that pushed the successful 2008 ballot measure defining marriage in Arizona as solely between one man and one woman.

She said the issue does not go away even if the Supreme Court does conclude there is a constitutional right of gays to wed. As proof she cited the historic 1973 ruling of Roe v. Wade which declared that women have a constitutional right to terminate a pregnancy.

"The pro-life movement is stronger than ever,' she said, citing a series of new restrictions on abortions that have been approved by states and upheld by courts. None of those rulings, however, have disturbed the basic premise of the 1973 decision.

Herrod has not disputed that public attitudes toward same-sex weddings have softened over the years. But she said that will change.

"We are in the midst of a social experiment,' she said. "And we don't know the full outcome.'

Horne, however, said he cannot view the issue as a social one but a legal one.

"I fought it as far as I ethically could,' he said of the challenge to the Arizona law. But Horne said his decision not to drag the case on "does not diminish my disagreement with the decision.'

Horne was a little more circumspect when asked about his feelings for gays now that they have the ability to marry.

"Obviously, I have good personal feelings for gay people that I know,' he said, saying he is involved in "the world of classical music' where he said gays are represented disproportionately. But Horne said he had the legal obligation to defend the Arizona ban as long as it was defensible.

Pressed for whether he shares in the happiness of gays who now can marry, he responded, "Without detracting from the legal position I have taken, I would say, 'Yes.' '

PHOENIX -- Friday's federal court ruling voiding Arizona restrictions against same-sex marriage raises a series of new questions about other state laws which discriminate based on sexual orientation.

For example, one law dealing with adoption spells out that if all other relevant factors are equal, the state should give preference to "a married man and woman' versus a single adult.

With Friday's decision, gays will get equal status as married. But Attorney General Tom Horne said he could not say whether the law giving preference to couples of opposite sex is any longer enforceable.

"That's undetermined,' he said, saying he reads the ruling as only affecting the right of gays to marry. "Other consequences remain to be determined.'

But Jennifer Pizer, an attorney with Lambda Legal Defense and Education Fund, said she believes that laws like these which differentiate between man-woman married couples and same-sex couples who also are married are probably unenforceable. And Pizer said she hopes it won't require a court battle.

"What should happen is that the state officials that would be applying that law understand that the same reasoning that meant the different-sex requirement for marriage is struck down means that the different-sex requirement for other kinds of family law purposes is just as unconstitutional,' she said.

Pizer said that Arizona and other states trying to keep gays from marrying made various arguments to courts about why having parents of different sexes is important in raising families. All were rejected as "not constitutionally sound.'

"The same is certainly just as true with respect to adoption and any parenting issue,' Pizer said.

But Cathi Herrod, president of the Center for Arizona Policy, is prepared to fight any such change.

"The social science data still shows that marriage provides benefits to society, it provides the best environment for the well-being of children,' she said. "That is not changed by a court decision.'

Herrod said, though, there could be implications for adoption.

For example, she said that Catholic Charities in Massachusetts, where gays have been allowed to marry for more than a decade, was told that it could not refuse to place a child with a same-sex couple. The result, said Herrod, is that organization is no longer handling adoptions.

Less clear how this affects businesses and private individuals.

"We may see problems of people who marry their same-sex partner and the boss looks askance at their newfound newlywed bliss and starts handing out pink slips,' said Pizer. "It is something we're concerned about.'

She acknowledged that Arizona has no laws which prohibit such discrimination based on sexual orientation. But Pizer said there's "evolving case law' which suggests that Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, national origin, religion and sex also extends in the employment field to sexual orientation.

Where newly married gays may lack protection is in other business situations. Horne said he sees nothing in Friday's ruling that governs such situations.

"Somebody doesn't want to go to a gay wedding and do the floral arrangement for example,' Horne said. "That remains to be decided in a final way one way or another.'

The chance that state lawmakers will extend such protections is probably minimal.

In fact, earlier this year they approved SB 1062 which would have expanded the rights of business owners to cite their own religious beliefs to let them refuse service to anyone. Proponents cited a New Mexico case where that state's high court ruled a commercial wedding photographer could not refuse to take pictures of a same-sex wedding.

The only reason that did not become law is because it was vetoed by Gov. Jan Brewer who called it a solution in search of a problem that does not exist in Arizona.

Even with that veto, Pizer said business owners here retain the right to engage in the kind of discrimination the New Mexico court ruled illegal.

"I think there is a reality that some businesses will make the unwise business decision, the sort of commercially counterproductive decision, to turn away customers,' she said. "That will be a shame if they do that.'

One thing Friday's ruling will do is end the fight over domestic partner benefits for public employees.

Brewer has been fighting a preliminary injunction, issued by the same judge who ruled in Friday's marriage case, which blocked her from taking away those benefits from gays. In his earlier ruling, Judge John Sedwick had said the state could not limit benefits to married couples and then preclude them from getting those benefits by blocking them from marrying.

Pizer said that whole question is now moot: Since gays can marry, their partners are entitled to the same benefits public employers give to the spouses of other workers.

Along the same lines, Friday's ruling covers means even those government agencies that had not provided domestic partner benefits will not be able to differentiate between same-sex married couples and heterosexual married couples.

-- By Howard Fischer, Capitol Media Services
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