An attorney for the state wants a judge to throw out a bid by several gay couples to allow them to marry.
In legal papers filed this week in federal court here, Assistant Attorney General Kathleen Sweeney said nothing in Arizona's voter-approved constitutional ban on same-sex weddings violates anyone's federal rights.
Sweeney acknowledged to U.S. District Court Judge John Sedwick that Arizona voters, in defining marriage as solely between one man and one woman, cannot overrule protections in the U.S. Constitution denying residents “due process of law.” But she rejected contentions by attorneys for the couples who sued that there is a constitutional right of gay citizens to marry just the same as heterosexual couples.
Ditto, Sweeney said, for the refusal of Arizona to recognize same-sex marriages performed in other states where that is legal.
Anyway, she said, the “asserted harms” of same-sex couples are insufficient to allow them to seek to overturn what voters here have adopted.
It will be up to Sedwick, though, to make the decision about the rights of gays, at least at the trial court level.
Sedwick has a bit of a record on the issue. He was the judge who forbade the state from denying health care and other benefits to the domestic partners of gay state employees.
Arizona has had laws on the books for years against gay marriage. But amid fears of a constitutional challenge, foes of same-sex marriage got voters to adopt a state constitutional ban in 2008.
The lawsuit, filed last month in federal court, claims that ban violates the individual rights of couples under equal protection and due-process provisions of the U.S. Constitution. Attorney Shawn Aiken argued the ban is “arbitrary and invidious discrimination” and denies gays the “benefits and protections of marriage.”
If that argument fails, Aiken has a fallback position: He wants Sedwick to rule that Arizona has to recognize the validity of same-sex marriages performed in other states where that is legal.
But Sweeney said there is no legal basis for what Aiken wants. For example, she told the judge that Aiken is citing last year's U.S. Supreme Court ruling which overturned a portion of the federal Defense of Marriage Act. Sweeney said, though, that ruling concluded that the federal government could not refuse to recognize marriages considered legal in the state where they were performed.
“In doing so, the court reaffirmed each state's power to define marital relations,” Sweeney wrote.
Sweeney, in her filing with Sedwick, also said the lawsuit is unclear.
She said that Aiken is asking him to void not only the constitutional provision but “all other laws of the state of Arizona banning, refusing to recognize or otherwise restricting same-sex marriage.” But Sweeney said that general description “does not provide sufficient detail to identify what Arizona laws ... plaintiffs are asking this court to declare unconstitutional.”
Separate from the lawsuit, efforts are underway to ask voters to repeal the 2008 ban in 2016.
Sedwick last weighed in on the question of equal rights in 2010.
At issue was a 2009 law which overturned a policy established by Gov. Janet Napolitano extending benefits to gay couples in stable relationships. Attorneys for some same-sex couples sued.
Sedwick acknowledged that the provision, tucked into the state budget, is not discriminatory on its face.
But the judge cited the Arizona constitutional amendment that bars same-sex marriages. What that means, Sedwick said, is the state is making benefits for the partners of its employees available “on terms that are a legal impossibility for gay and lesbian couples.”
“As a result, (the law) denies lesbian and gay state employees in qualifying domestic partnership a valuable form of compensation on the basis of sexual orientation,” the judge wrote.