PHOENIX — Same-sex weddings in Arizona could be less than a week away.
In a brief order made available Friday, a federal judge considering challenges to the Arizona ban said he’s all but convinced that Arizona’s laws and constitutional provision against gays being able to marry are illegal.
Judge John Sedwick said his conclusion follows a ruling earlier this week by the 9th U.S. Circuit Court of Appeals striking down similar bans in Idaho and Nevada. The three-judge panel ruled unanimously that those restrictions violate the rights of homosexuals who want the same rights to wed granted to heterosexuals.
Sedwick said it appears that decision “controls the outcome” of challenges here.
In essence, the judge gave attorneys for the state through this coming Thursday to convince him that’s not true. If they cannot, the judge indicated he will grant a motion by challengers to summarily rule the Arizona restrictions illegal and reject a separate request by the state to dismiss the challenge.
That could come as early as Friday.
The order is a good sign, said Jennifer Pizer, an attorney with Lambda Legal Defense and Education Fund who is handling one of the two challenges in Sedwick’s court.
“The order ... confirms that Judge Sedwick is prepared to apply the 9th Circuit decision and vindicate the basic rights of lesbian and gay Arizonans and their families,” she said.
Pizer pointed out that last month, it took the judge just hours after oral arguments to decide that Green Valley resident Fred McQuire was entitled to be listed by Arizona authorities as the surviving spouse of George Martinez, whom he married in California.
Less clear is how quickly gays would be able to marry.
Sedwick could follow the precedent set by the 9th Circuit and make his ruling effective immediately. Efforts by other states to delay similar orders have been rebuffed by the U.S. Supreme Court. On Friday, the Supreme Court said same-sex marriage can go ahead in Idaho.
Arizona Attorney General Tom Horne says his office is still reviewing that 9th Circuit ruling. Horne said he has not yet decided whether any of the arguments Arizona is making to preserve its restrictions are sufficiently different than what the appellate judges already have dismissed in the other cases.
More to the point, Horne said any decision of whether to appeal of Sedwick’s ruling will depend on whether he believes Arizona would have more success defending its ban than any of the other states have had.
It may be difficult to prove that the arguments here are any different than have been made — and rejected — elsewhere.
In defending Arizona’s restriction, lawyers said that defining marriage as solely between one man and one woman “furthers the state’s compelling interest in connecting children to both their biological mother and their biological father.”
“The most reliable studies on alternative family structures show that, in general, the optimal childrearing environment is a home headed by a married biological mother and biological father,” wrote Byron Babione. He is an attorney with the Christian public interest law firm Alliance Defending Freedom whom Horne has taking the lead in making Arizona’s arguments.
“Moreover, every set of biological parents provides their children with a parent of each sex, and much social science indicates that gender-differentiated parenting is important for human development,” Babione wrote.
But in Tuesday’s 9th Circuit ruling, appellate Judge Stephen Reinhardt said Idaho and Nevada were making the same arguments: that marriage laws “promote child welfare by encouraging optimal parenting.” That included the idea that children raised by two parents of opposite sex are “most likely to thrive” because mothers and fathers have “complementary approaches to parenting.”
Reinhardt said, however, there was nothing presented to the court supporting those contentions.
In the brief Sedwick said he will rule on, Babione also said it is “logical” to assume that if gays can marry “that marriage between man-woman couples having or raising children will decrease.”
“As fewer man-woman couples marry and as more of their relationships end prematurely, the already significant costs associated with unwed childbearing and divorce would further increase,” Babione wrote.
Reinhardt, however, addressed that specific contention in the appellate court ruling by citing data from Massachusetts, where gays have been able to marry since 2004. He said there was no decrease in marriage rates or increase in divorce rates in that time.
And the judge said allowing gays to marry actually might have the opposite result than predicted by foes.
“It would seem that allowing couples who want to marry so badly that they have endured years of litigation to win the right to do so would reaffirm the state’s endorsement, without reservation, of spousal and parental commitment,” Reinhardt wrote.
Babione also contends that if gays can wed, “It is logical to project that fewer fathers will commit to their children’s mothers and jointly raise their children.”
But Reinhardt, addressing the same arguments from Idaho and Nevada, said that comes down to a contention that a man who has a child with a woman, seeing a child raised by two women allowed to marry by the state, will somehow conclude that it is unnecessary for his own child to have a father.
“This proposition reflects a crass and callous view of parental love and the parental bond that is not worthy of a response,” Reinhardt said. “We reject it out of hand.”
Along the same lines, Reinhardt brushed aside arguments by Idaho Gov. C.L. “Butch” Otter than that allowing same-sex marriage will lead to bad behavior by heterosexual couples.
“We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll,” the judge wrote.
Finally, Babione said the people of Arizona, who approved a constitutional amendment in 2008, have a right to define marriage for their community. But Reinhardt, in the earlier ruling, said that does not trump the fact that, absent some legitimate purpose, “laws that treat people differently based on sexual orientation are unconstitutional.”
On a strictly legal question, Babione contends Arizona’s restriction should be upheld if the state can show a rational basis for it. But the 9th Circuit, saying fundamental rights are at issue, already has said it examines these kind of laws on a “strict scrutiny” basis, which require states to show a compelling reason for them.
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