Unwilling to wait for a 2016 vote, advocates for same-sex marriage asked a federal judge Thursday to rule the state's ban is illegal.
The lawsuit challenges both long-time state laws as well as a voter-approved 2008 state constitutional amendment defining marriage in this state as solely between one man and one woman. Jennifer Pizer, senior counsel for Lambda Legal Defense and Education Fund, representing seven Arizona couples and two survivors of same-sex relationships, contends that ban violates federal constitutional provisions.
“Because our clients are not able to marry, they're being denied equal protection under the laws, which should be a birthright of all Americans,” she said at a press conference detailing the legal action.
“And they're being denied the fundamental freedom to marry the one they love,” Pizer added. “That's a denial of due process that's guaranteed to all of us by the U.S. Constitution.”
Attorney General Tom Horne, in an interview with Capitol Media Services, said he thinks the Arizona law is legally defensible. Horne sidestepped the question of whether allowing heterosexual couples to marry but denying that right to same-sex couples amounts to unequal treatment. He said that's not the legal issue.
“The question really is, what is the definition of marriage,” he said.
“I would say that the Legislature, and the people acting through the Legislature, have a right to define what is marriage,” Horne continued. “And that should be a decision made by the people governing themselves rather than the judiciary imposing it on them.”
The lawsuit comes as proponents of same-sex marriage are gearing up to put the issue on the 2016 ballot. In fact, many of the same organizations and plaintiffs are involved in that effort.
But Pizer said the two efforts do not conflict.
“In our governmental system we sometimes have multiple roads to roam,” she said. “And the point is getting there so that everybody has the same legal protections they need.”
Anyway, she said, courts are in place to enforce constitutional rights.
“And none of us should have to ask our neighbors to agree that we have the same rights,” Pizer said. “That's what the Constitution's there for.”
She also said the timing had nothing to do with the recent dust-up over SB 1062 which was perceived as an effort to provide legal cover for individuals to use their sincerely held religious beliefs to deny services to gays and others. Pizer said the lawsuit had been in the works for “quite a long time.”
The challengers fall into three categories.
First are Arizona couples who have been together and want to marry but cannot because of Arizona law.
Nelda Majors, 75, spoke of being with 74-year-old partner Karen Bailey since they were in college in the 1950s. But she said the issue goes beyond wanting state recognition of their relationship.
Majors pointed out that the Scottsdale couple has been raising Bailey's two great grand-nieces for more than a decade.
“Only Karen is recognized as their legal guardian,” she said. “If something should happen to Karen, my relationship with these wonderful girls could be in danger.”
Vicente Talanquer and Kent Burbank are in a second category, having been legally married in Iowa last year but their relationship not being recognized here.
According to the lawsuit, only Talanquer is legal father to two boys they adopted out of foster care. Burbank wants legal recognition of their marriage so he, too, is considered a parent.
“When these couples return home to the state they love, they are officially ‘unmarried’ by the state of Arizona,” Pizer said. “That denies them and their children the right to joyfully and officially proclaim that they are married.”
More significant, she said, is that the failure of Arizona to allow gays to wed or to recognize their legally performed marriages from elsewhere means they cannot respond the same way as heterosexual couples to be at a partner's hospital bedside or speak for their children.
In the third category is Josefina Ahumada of Tucson, surivor of Helen Battiste, whom she legally married in New Mexico. The lawsuit says that after Battiste's death the state refused to issue Ahumada's application for a death certificate, instead being willing to deal only with her son.
Pizer and Horne did agree on one issue: It may not matter who wins in federal court in Arizona.
Both noted there already are other cases making their way through the federal courts challenging similar laws in other states that are farther along.
That includes another case being pursued by Lambda Legal challenging Nevada's voter-approved ban on same-sex marriage. While a trial judge upheld the law, the 9th U.S. Circuit Court – the same one whose rulings hold sway over Arizona – is expected to hear arguments later this spring.
Horne said the issue ultimately will be decided by the U.S. Supreme Court.
The lawsuit also is in many ways similar to one filed in January by attorney Shawn Aiken in federal court on behalf of both couples wanting to marry and those legally wed elsewhere who want their relationship recognized by the state. Judge John Sedwick has asked for a report on the status of that case by April 1.