Questions remain after ruling on gay marriage
Repeatedly citing the “fundamental right’’ to wed, the nation’s high court on Friday extended that right to same-sex couples.
In an broadly worded majority opinion, Justice Anthony Kennedy said laws against gay nuptials are no more defensible than sincevoided 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.
Friday’s ruling, while technically dealing with challenges to laws in other states, affirms last year’s decision by a federal judge which overturned the de- cision by Arizona voters in 2008 to define marriage as solely between one man and one woman. It also voided even older measures adopted by the Legislature about who can wed.
That fact led to Chief Justice John Roberts blasting 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 in his dissent. “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 (they) 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.’’
Friday’s ruling, by extension, also means Arizona has to recognize same-sex marriages previously performed in other states.
Less clear, however, is how it affects other Arizona laws which reserve special privileges for 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. But Josh Kredit, legal counsel for the Center for Arizona Policy, said the Supreme Court ruling does not mean that law is now invalid and that Arizona has to provide equal treatment for all married couples.
“That would assume that the only reason for the law was because it was because they were married and not specifically because it was a man and a woman,’’ Kredit said.
“The Legislature passed the law that says that, all things being equal we think that, as the social science shows us, children do best with a married mom and dad,’’ he explained. “It’s the Legislature saying, ‘We don’t think moms and dads are interchangeable.’’’
But Jennifer Pizer, attorney for Lambda Legal Defense and Education Fund, said Friday’s ruling should effectively make such laws invalid.
“There really should not be any serious dispute ... about whether families headed by same-sex couples deserve the same respect,’’ she said. Pizer said the ruling “should allow us to move forward without lots of secondary disputes.’’
That question of the need for a mom and a dad played out in the debate at the court.
Roberts said heterosexual marriage came about not because of a societal decision to exclude gays but “to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.’’
He said procreation occurs through sexual relations between a man and a woman. And if a child is conceived, its prospects “are generally better if the mother and father stay together rather than going their separate ways.’’
Kennedy, however, said that logic falls apart as no state conditions marriage on the desire or promise to procreate.
“The constitutional marriage right has many aspects, of which childbearing is only one,’’ he said.
There’s a more press- ing question: Now that the court has determined gays have a constitutional right to wed, can businesses refuse to provide services at such nuptials?
Last year a majority of Arizona lawmakers approved SB 1062 to expand 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 samesex wedding.
It did not become law because then-Gov. Jan Brewer vetoed it, calling it a solution in search of a problem that does not exist in Arizona.
Now, however, gay marriage is legal in Arizona.
In a prepared statement, current Gov. Doug Ducey said he hopes Arizonans “will engage constructive- ly as we comply with the requirements of the law based on this ruling.” But Ducey did not address – and press aide Daniel Scarpinato would not answer – whether the governor believes there is now a need for an Arizona law to protect business owners.
Aaron Baer, spokesman for the Center for Arizona Policy, said his organization, which pushed SB 1062, is studying the ruling.
“There might be a need to add protections in there to look at what we can do in state law to ensure people of faith are protected,’’ he said.
Kennedy wrote that nothing in Friday’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 his colleagues did not address “the freedom to exercise religion.’’ And he sees the majority decision as creating problems.
He said states which voluntarily approved samesex marriage also included provisions to accommodate religious practice. But Roberts said nothing in the majority decision dealing only with the right to wed “cannot, of course, create any such accommodation.’’
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. And he noted that the federal solicitor general, representing the Obama administration, acknowledged that the tax exemption of some religious institutions would be in question if they opposed same-sex marriage.
“There is little doubt that these and similar ques- tions will soon be before this court,’’ Roberts wrote. “Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.’’
Other legal questions remain.
For example, Arizona has no laws prohibiting discrimination based on sexual orientation. But Pizer said she believes the wording in Kennedy’s ruling will help extend the reach of existing federal civil rights laws which prohibit discrimination based on race, color, national origin, religion and gender.
“(Friday’s) decision speaks of the equal dignity in the place that LGBT people have in our society and the harms and the unjustifiable exclusions and discrimination of past generations,’’ she said. “All of that analysis and language should be helpful in addressing the array of questions that we still have.’’