Supreme Court to hear gay rights cases affecting Arizona
By Alia Beard Rau The Republic | azcentral.com Mon Mar 25, 2013 7:43 AM
The future of Arizona’s ban on same-sex marriage rests in the hands of the U.S. Supreme Court, which will hear two unrelated lawsuits on gay rights this week.
While neither originates from Arizona, both address issues that the state has tackled in recent years: bans on same-sex marriage and limits on domestic-partner benefits for same-sex couples.
The Supreme Court will hear arguments Tuesday in Hollingsworth vs. Perry, a case in which same-sex couples allege California’s 2008 voter-approved Proposition 8 violates the equal-protection clause of the 14th Amendment. Proposition 8 defines marriage as the union between a man and a women, and is identical to the measure Arizona voters passed that same year.
On Wednesday, the court will hear arguments in United States vs. Windsor, which alleges that the part of the federal Defense of Marriage Act that defines marriage as being only between a man and a woman violates the Fifth Amendment’s guarantee of equal protection. Because of this federal definition, same-sex couples, even in states that allow them to marry, aren’t eligible for any of the federal benefits heterosexual married couples get, including tax breaks and Social Security benefits.
The high-court opinions in these two cases could be used to decide an Arizona federal lawsuit seeking to protect benefits for same-sex partners of state employees. But they could also be written broadly enough to tell Arizona and 37 other states whether they may continue to ban same-sex marriage.
“This could be the biggest decision by the Supreme Court since Brown versus the Board of Education,” said Phoenix attorney Dan Barr, one of the attorneys challenging the state regulation eliminating benefits for same-sex domestic partners. “You are singling out these people for no reason other than who they are.”
The conservative advocacy group the Center for Arizona Policy has led the move to ban same-sex marriage in Arizona, first pushing to define marriage as being between only a man and a woman in state statute in 1996 and then in the Arizona Constitution in 2008.
Group President Cathi Herrod said she hopes the high court will let states decide the issue.
“On every social indicator, marriage between one man and one woman is the best living arrangement for children,” Herrod said. “No other relationship provides the benefits to society in the way marriage does. A lifelong, faithful union between husband and wife promotes healthy families today and for future generations.”
Arizona is among 38 states to define marriage as being between a man and a woman. Nine states allow same-sex marriage, and Colorado will soon join them.
In Hollingsworth vs. Perry, the U.S. Court of Appeals for the 9th Circuit ruled California’s proposition unconstitutional, saying states must have a legitimate reason for passing laws that treat different classes of people differently and declaring that California had no such reason. The Appeals Court dismissed the argument that the intent of the proposition was to promote childbearing.
Although Arizona is within the 9th Circuit, the ruling was narrowly applied to California and did not halt Arizona’s law.
Voters passed California’s Proposition 8 after the court had already begun allowing marriage licenses for same-sex couples. Part of the Appeals Court’s opposition was based on its feeling that the state was stripping a group of people of rights it had previously been granted. Arizona has never allowed marriage licenses to be issued to same-sex couples.
The impact of the Supreme Court’s action on this case depends on how broadly the court chooses to make its ruling.
It could uphold the law’s definition of marriage as constitutional, leaving Arizona’s intact as well.
It could uphold the Appeals Court ruling, striking down only California’s proposition.
It could rule all state same-sex marriage bans unconstitutional, nullifying Arizona’s ban immediately.
Or it could establish a legal threshold for states to set laws restricting rights of same-sex couples, which could impact Arizona but would likely take time and lawsuits.
“We’ll have rulings likely by June 30, so then we’ll know what the next steps are,” Herrod said. “My hope is that the U.S. Supreme Court defers to the will of the voters, to be decided by the people either through initiative or legislative body.”
President Bill Clinton signed the Defense of Marriage Act into law in 1996. He stated earlier this year that he now believes DOMA to be unconstitutional.
The Obama administration has refused to defend the law in the lawsuit. Instead, a group of Republican U.S. House members is defending the law.
Tara Borelli, staff attorney for Lambda Legal, a national organization that advocates for gay rights and is involved with the Arizona case, said she doesn’t think United States vs. Windsor will affect Arizona much.
“DOMA is about, once you are married, does the federal government have to recognize that marriage?” she said. “It won’t have an immediate impact on the people living in Arizona because (same-sex couples) aren’t permitted now to become married.”
But while Barr agreed the impact likely wouldn’t be immediate, he said it could have more long-term impacts.
“Ruled narrowly, the DOMA case would only apply to this congressional statute,” Barr said. “But ruling more broadly, it could wipe away similar laws (defining marriage) in the states.”
Herrod also said a ruling against the DOMA clause in this case could still affect Arizona eventually.
“A ruling that opens the door to the constitutional right to same-sex marriage certainly will lead to lawsuits in Arizona,” she said. “We’ll see more legal challenges to try to get the courts to redefine marriage.”
Arizona does have a related case pending before the U.S. Supreme Court.
In Diaz vs. Brewer, same-sex partners of some state employees are challenging a 2009 law that Republican Gov. Jan Brewer signed prohibiting heath-care coverage for domestic partners of state employees. The law overturned a 2008 executive order by Democratic Gov. Janet Napolitano that granted coverage to this group. The Legislature, in its support of the law, argued it was a cost-saving measure.
The Arizona federal court granted a preliminary injunction in the case that required the state to continue providing health-care benefits while the underlying case proceeds. The state appealed the injunction, and the 9th Circuit upheld it. The state then asked the Supreme Court to weigh in.
The Supreme Court did not agree to hear arguments in this case, or several other related cases, this term. But it also did not issue any decision on the case, meaning it could still rule in the future.
“What we anticipate will be the most likely is they will issue an order when they rule in the Hollingsworth and Windsor cases,” Borelli said.
Elizabeth Gill, an attorney for the American Civil Liberties Union’s LGBT and AIDS Project and one of the attorneys on the Windsor case, said the biggest impact to the Diaz case and Arizona as a whole is the fact that the high court has agreed to hear a case on this subject.
“They’ve created a national dialogue about the issue of marriage and the freedom to marry for same-sex couples,” Gill said. “It feels like this is a watershed moment.”
In both the Hollingsworth and Windsor cases, Arizona Attorney General Tom Horne joined several states in filing an amicus or friend of the court brief defending the definition of marriage as being between one man and one woman and arguing that states have the authority to define and regulate marriage.
“Traditional marriage focuses on protecting children and creating optimal child rearing environments, not on celebrating adult romantic relationships,” the brief states. “While same-sex couples may do an excellent job of raising children, they cannot provide the family structure states seek to encourage with traditional marriage: where those who raise children combine both legal responsibility for and a biological connection with that child.”
The briefs argue that the courts for more than 150 years have left the regulation of domestic issues to the states, where they should remain.
“Traditional marriage is not about imposing disadvantages on homosexuals, but about promoting behavior exclusive to opposite-sex couples, namely procreation,” the briefs state. “States may rationally conclude that, all things being equal, it is better for the biological parents also to be the legal parents, and that marriage promotes that outcome.”
Without such a limited definition, the briefs go on to argue, any grouping of adults could have an equal claim to marriage, including polygamists.
“For this court to mandate that all states recognize same-sex marriage would be to wreak revolutionary change on American marriage jurisprudence,” the briefs state.
Barr called the arguments nonsense, saying it essentially says that people who get married and don’t have children or who have children through adoption or with the help of fertility treatments are somehow inferior.
“To say that people who are married and procreate are somehow different than parents who adopt, whether they are married or not, just leaves me speechless,” he said. “It’s insulting to all those people.”
Karen Bailey, 73, and Nelda Majors, 74, of Scottsdale, have been together for more than 50 years.
They will be on the Supreme Court steps Tuesday as groups gather to rally before the first hearing.
They said they would marry if it were legal in Arizona.
“Nelda and I met when we were in college. We have raised two wonderful girls. We are a loving family,” Bailey said. “We think we should have the rights of marriage.”
Majors said she doesn’t see how the Supreme Court could rule any other way.
“We should have the legal rights that everybody else has,” she said. “We’re praying they will see it our way.”
Majors said they don’t have to get married to prove their commitment to each other.
But as they get older, they worry about not having the legal protections of a married couple to visit each other in the hospital, protect their estate from inheritance taxes or legally care for the nieces they’ve raised since they were babies.
“There are 1,138 laws that apply to married couples that don’t apply to us,” Majors said. “We don’t want any special rights, we just want the same laws that apply to everybody else.”
Herrod said she never predicts Supreme Court rulings.
“But certainly my hope is the U.S. Supreme Court will not determine public policy and will defer to the states to define marriage according to the will of the people,” she said.