Ruling in gay marriage case could endanger Arizona amendment

PHOENIX -- A federal court ruling Tuesday overturning California's ban on gay marriage could provide the legal fodder to overturn a similar voter-approved constitutional amendment here.

In a split decision, the 9th U.S. Circuit Court of Appeals said the California measure violates a provision of the U.S. Constitution which guarantees equal rights to all. Judge Stephen Reinhardt, writing for the majority, said the sole purpose of Proposition 8 was "to dishonor a disfavored group by taking away the official designation of approval of their committed relationship and the accompanying societal status, and nothing more.'

"Proposition 8 serves no purpose, and has no other effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,' the judge wrote. "The Constitution simply does not allow for laws of this sort.'

Judge N. Randy Smith dissented, saying there is a "legitimate governmental interest' in limiting marriage to one man and one woman. But Smith joined with the majority in rejecting arguments that the original ruling of District Court Judge Vaughn Walker should be invalidated because he did not disclose he is in a long-term same-sex relationship.

"It's clearly a really good day,' said Nicholas Ray, executive director of Equality Arizona. He pointed out that Arizona, like all Western states, is governed by the rulings of the 9th Circuit.

Cathi Herrod, president of the Center for Arizona Policy, which championed the successful 2008 ballot measure, said that having such a ruling from the 9th Circuit means this state's constitutional amendment is "endangered.'

"The 9th Circuit decision is one more example of activist judges making the law and not deferring to the people,' she said.

But both agreed that Tuesday's ruling won't have an immediate impact here because foes of same-sex marriage are certain to appeal the ruling all the way to the U.S. Supreme Court. And that means a final ruling could be at least a year away.

Beyond that, there is one key difference in the California situation than what exists here.

In invalidating California's 2008 initiative, the judges noted that there already were gay couples getting married in the state. And he said that gay couples still have other rights under state law, including the ability to register as "domestic partners' which gives those in such relationships various rights similar to that of married couples.

"Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents,' Reinhardt wrote. In fact, he said that the court was looking at the issue from that perspective rather than the broader question of the constitutionality of denying same-sex couples the right to marry -- a conclusion that would automatically void the Arizona constitutional provision if eventually upheld.

Herrod said that distinction may help preserve what voters approved here.

"Arizona, by contrast with California, has very few laws that grant special rights based on sexual orientation,' Herrod said.

Still, she said, some do exist. And those, Herrod said, might form the basis for a court looking at the Arizona ban on same-sex marriage to reach a similar conclusion to what was decided Tuesday.

For example, Tucson has a domestic partner registry that requires hospitals to grant visitation rights to those who sign up. Phoenix has a similar ordinance.

Several cities and Pima County also offer health coverage to the domestic partners of their employees.

There are no parallel state laws.

But in 2008 then-Gov. Janet Napolitano had the Department of Administration rewrite state personnel rules to expand the definition of who is a "dependent' of a state workers.

Those rules include someone living with the employee for at least a year and expected to continue living with that person. The rules, which did not specify the gender of the partner, also required a showing of financial interdependence and an affidavit by the worker affirming there is a domestic partnership.

But in 2009, after Napolitano resigned to become head of the Department of Homeland Security, the Republican-controlled Legislature approved, and her successor, Jan Brewer signed, a state law narrowing the definition and specifically excluding unmarried couples.

But in a ruling last year, a three-judge panel of the 9th Circuit voided that move.

The judges said the state is not obligated to provide health insurance for its workers or their families.

"But when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular," Judge Mary Schroeder wrote for the court. She noted there is no other way for gay workers to get those benefits in Arizona, with a state constitutional amendment barring same-sex nuptials.

Tuesday's majority ruling also contained language that could be used to attack the Arizona law.

In pushing the 2008 ballot measures, proponents said they want to strengthen and protect the institution of marriage, even saying that the purpose of this union is to procreate and raise children.

"It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman,' Reinhardt wrote.


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