High court to weigh same-sex marriages
Supreme Court will hear arguments on state bans
Six months after an Appeals Court forced Arizona to allow same-sex couples to marry, the future of those unions is now at the mercy of the highest court in the land.
The U.S. Supreme Court on Tuesday will hear arguments in lawsuits from four other states with similar bans. It will decide whether the 14th Amendment, which guarantees equal protection, requires a state to allow same-sex couples to marry. A ruling, which would apply to Arizona, is expected this summer.
Thirty-seven states now allow samesex couples to marry. Arizona was the 31st state. Legal insiders widely predict the Supreme Court, in a split decision, will require the rest to follow.
Advocates on both sides in Arizona are already looking beyond the hearing to the next battles, primarily adoption, discrimination protections and solidifying religious freedom.
“Nobody should be celebrating right now, but I find it difficult to believe the Supreme Court would have done what it did last fall ... in all those cases and allowing same-sex marriage to instantly become legal,” said attorney Dan Barr, who represented plaintiffs in one of two lawsuits challenging Arizona’s law. “They are smart people. They knew what was going to happen.”
The Supreme Court’s refusal last fall to allow the bans to remain in effect until it could take up the issue — and refusal to take up the issue sooner — resulted in thousands of couples across the nation marrying.
ASupreme Court ruling returning the authority to the states would throw those marriages into legal chaos.
“It would be a tremendously cruel thing to do,” Barr said, and unlikely.
The adoption issue came to a head last week when Republican Gov. Doug Ducey ordered the state Department of Child Safety to immediately resume issuing adoption and foster-care licenses to married same-sex couples. The agency had halted the practice based on legal advice from Republican Attorney General Mark Brnovich.
Maricopa County Attorney Bill Montgomery, also a Republican, continues to refuse to provide adoption services to married same-sex couples, and the American Civil Liberties Union of Arizona has notified him of their intent to sue.
The influential Center for Arizona Policy President Cathi Herrod, a strong backer of Ducey during his election, declined to comment on Ducey’s action but did explain her position, which matches that of Brnovich and Montgomery.
“The plain language of Arizona’s adoption statute only allows joint adoption by a married man and woman,” she said. “The court decisions redefining marriage do not change this adoption statute.”
She said the Supreme Court ruling, depending on how broad it is, may clarify this issue.
“The question will be whether statutes specific to a married man and woman are changed by the court cases or whether they would have to be changed through the legislative process,” she said.
Arizona law also currently states that, all other things being equal, a married man and woman should be selected first in adoption situations.
There are groups looking at pushing for changes to wording in state law to ensure married same-sex couples have all of the same rights as married oppositesex couples. Democrats this session introduced legislation to change the wording in the adoption statutes, but Republican leadership killed the bills without allowing any votes or public hearings.
Beyond that, Arizona groups are in the early stages of a push to add sexual orientation and gender identity to the categories such as race, religion, gender and disability protected under state discrimination laws. Thirty other states have such discrimination protections.
“When the Supreme Court comes down and says marriage is legal, that doesn’t give everyone in our community the rights that we still need for protection,” said Equality Arizona public-policy co-chair Rebecca Wininger. “We could be married on Saturday, fired on Monday and evicted from our housing on Tuesday.”
Rumors of a bipartisan legislative push backed by business leaders this session proved untrue, but Equality Arizona co-chair Catherine Alonzo said there is an effort in the early stages under a new group called the Competitive Arizona Coalition.
They haven’t yet decided whether action will come in the form of a legislative push or if they will take it directly to voters.
“At the moment, we are really in the education phase,” she said. “Research has shown us that a majority of Arizo- nans think it’s important to include LGBT as both sexual orientation and gender identity as part of the protected class, but it also has shown that a majority of Arizonans think we already have it.”
She said the group has the backing of businesses and has begun meeting with Republican and Democratic lawmakers. She said she thinks legislation has a chance of passing, even under Arizona’s conservative Republican Legislature.
Democrats this session introduced bills that would have offered protection based on sexual orientation and gender identity from discrimination in housing and employment. Republican leadership killed those bills without allowing any votes or public hearings.
Herrod said such non-discrimination laws and ordinances have been used nationwide to stifle First Amendment freedoms.
“Cake bakers in Oregon have been fined $130,000 because they declined to bake a cake for a same-sex wedding because it was against their religious beliefs,” she said. “Our greatest concern is that these proposed laws are being used to force people of faith to choose between their livelihood and their faith.”
She said her organization is watching cases like that in Oregon and other states to determine whether Arizona law is strong enough to protect individuals’ religious freedoms.
The Center for Arizona Policy was behind the unsuccessful Senate Bill 1062 last year, which former Gov. Jan Brewer vetoed after opponents argued it would allow businesses to discriminate against LGBT individuals. Proponents argued it was a tweak to existing state religious-freedom laws to ensure individuals and businesses were not forced to act against their beliefs.
Lawmakers did not introduce similar legislation this session.
Residents tired of waiting for the state to take action have developed local anti-discrimination ordinances in Phoenix, Tempe, Tucson and Flagstaff. Mesa and Scottsdale are considering similar ordinances. But ACLU of Arizona Executive Director Alessandra Soler said a consistent statewide policy is needed.
“I think businesses are starting to realize that in order to attract talent, we have to have policies that protect people from discrimination,” she said. “We can’t live in a state where you can be legally married and then you can be fired because there’s no protection against discrimination for gay people.”
Wininger said groups in Arizona are geared up for battle on this and other fronts.
“Until we can have full and equal civil rights within our communities, we’ll keep fighting the good fight,” she said.
Herrod said the religious community will continue its fight as well.
“Regardless of whether the Supreme Court redefines marriage, our task is to rebuild a culture of marriage,” she said. “Marriage between one man and one woman still provides the best institution for men, women and children, and we’ll continue to make that case.”