Supreme Court extends gay marriage nationwide
PHOENIX -- Repeatedly citing the "fundamental right' to wed, the nation's high court this morning extended that to same-sex couples.
In an extensive majority opinion, Justice Anthony Kennedy said laws against gay nuptials are no more defensible than since-voided statutes banning interracial marriage and marriage by prisoners.
"The reason marriage is fundamental under the Constitution apply with equal-force to same-sex couples,' he wrote in the 5-4 ruling.
Today's ruling, while technically dealing with challenges from other states, affirms last year's decision by a federal judge which overturned a 2008 voter-approved state constitutional amendment defining marriage as solely between one man and one woman as well as even older measures adopted by the Legislature about who can wed. That fact led to much of the stinging dissent from Chief Justice John Roberts who blasted his colleagues for removing the ability to make that decision from the people and their elected lawmakers.
"Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,' he said. "Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.'
But Justice Anthony Kennedy, writing the majority decision in the 5-4 ruling, brushed all that aside.
"The dynamic of our constitutional system is that individuals need not await legislative action before assert a fundamental right,' he wrote. "The nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter.'
Today's ruling says more than the Constitution's equal-protection arguments requires states to allow gays to wed. It also, by extension, means that Arizona has to recognize same-sex marriages performed in other states.
Less clear, however, is how it affects other Arizona laws which reserve special privileges for an opposite-sex couples.
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.
Following last year's ruling, Tom Horne, then the state attorney general, said he read it to affect only the rights of gays to marry. "Other consequences remain to be determined,' he said.
There was no immediate comment from Mark Brnovich, his successor.
But Jennifer Pizer, an attorney with the 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.
Separate are questions of discrimination.
Arizona has no laws prohibiting 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.
Then there's the question of whether today's ruling prohibits business owners from claiming religious beliefs in turning away customers.
It's fairly clear that Arizona lawmakers want to preserve that right. In fact, last 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 in which 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 then-Gov. Jan Brewer, who called it a solution in search of a problem that does not exist in Arizona.
That religious question clearly was on the minds of the justices.
Kennedy wrote that nothing in today's ruling disturbs the rights of religious organizations and individuals to teach their own principles, including that same-sex marriage is not to be condoned.
But Roberts said left out of all that is "the freedom to exercise religion.' And he sees the majority decision as creating problems.
For example, he said, what happens when a religious college provides married student housing only to opposite sex couples, or a religious adoption agency refuses to place children with same-sex married couples.