Four couples filed suit Monday in a bid to void Arizona's ban on recognizing same-sex marriages.
The lawsuit filed in federal court claims that both a long-standing state law and a 2008 voter-approved state constitutional amendment violates their individual rights under equal protection and due process provisions of the United States Constitution. They want Judge John Sedwick to block enforcement of either provision.
Attorney Shawn Aiken argues that the ban is “arbitrary and invidious discrimination.”
“A state law that singles out homosexuals for disfavored treatment and imposes inequality of them violations the principle of equal protection under the law,” he argued to Sedwick. He said that is precisely the effect of Arizona's restrictions, denying gays the right to marry a chosen partner and denying them the “benefits and protections of marriage.”
But Aiken has a fallback position, at least for two of the couples who were legally wed in California but reside in Arizona. He said the U.S. Constitution already requires Arizona to honor opposite-sex marriages performed in other states. Aiken said Arizona has no legal right to decide that same-sex marriages performed legally elsewhere are not entitled to legal recognition.
Aiken conceded, though, there may not be legal precedent for that argument.
Last year, the U.S. Supreme Court voided provisions of the federal Defense of Marriage Act which forbid the federal government from recognizing same-sex marriages performed in states where they are legal. That has since led to changes in various laws and regulations entitling legally wed gay couples to things like being able to file joint federal tax returns and get survivor benefits.
But the justices did not address another provision of DOMA, which says states need not recognize same-sex nuptials from other states. Aiken said, though that the federal law cannot trump the couples' constitutional rights.
The last time courts addressed the issue in Arizona was in 2003 when the state Court of Appeals unanimously rejected arguments that the state law restricting marriage to two people of the opposite sex is illegally discriminatory. The judges said legislators are entitled to conclude the permitting marriage only among heterosexuals promotes the state's interest in procreation and raising children in stable families.
Judge Ann Scott Timmer, writing the appellate decision even before the 2008 constitutional ban, said it is legally irrelevant that the state allows marriage of heterosexual partners who either cannot or choose not to have children. Timmer, now a justice on the state supreme court, wrote that if gays want the right to wed they had to take their case to the Legislature — or directly to the people through an initiative drive.