Court ruling paves way for gay marriage in Arizona

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PHOENIX -- A federal appeals court on Tuesday voided bans on same-sex marriage in Idaho and Nevada, paving the way for gays to marry here.

In a unanimous ruling, the judges rejected arguments by officials in both states that there are legitimate -- and legal -- reasons to let heterosexual couples marry but not extend that right to same-sex couples. Judge Stephen Reinhardt, writing for the panel, said whatever the justification, it amounts to illegal discrimination.

"Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in 'family values,' ' the judge wrote. And the court said that what the states were doing comes down to a "message of disfavor' toward same-sex couples and their children.

"This is a message that Idaho and Nevada simply may not send,' Reinhardt wrote.

Attorney Jennifer Pizer of Lambda Legal Defense and Education Fund said she will "imminently' ask U.S. District Court Judge John Sedwick, handling a similar challenge to Arizona law, to summarily overturn Arizona's own ban and allow gay weddings to happen here.

That may not come without a fight.

Stephanie Grisham, a spokeswoman for Attorney General Tom Horne, said he and the lawyers are still studying Tuesday's ruling. She also said the 9th Circuit ruling is not final, as appeals can be filed to the U.S. Supreme Court.

But Tuesday's ruling comes just a day after the high court refused to delay the effects of similar findings by other appellate courts, an action that has paved the way for gays to now marry in more than half the states.

Pizer said there is no reason to believe that Sedwick would reach some different conclusion than the appellate judges.

"There is nothing being argued in our case, the state is not offering any arguments, that are different, that would require additional arguments,' Pizer said, including that the state should reserve marriage for those who can procreate.

"These arguments were before the 9th Circuit,' she continued. "They were rejected by the 9th Circuit, and rightly so.'

More to the legal point is that Tuesday's ruling, unless overturned, sets precedent for all the states in the region.

"That rule of law is binding on Arizona,' she said.

The governor's office had no comment. But Tuesday's ruling was greeting with anger by Cathi Herrod, president of the Center for Arizona Policy, who spearheaded a successful 2008 ballot measure banning same-sex marriage.

"By fundamentally undermining the right of the people to vote to protect marriage as the union of one man and one woman, the 9th Circuit court has not only usurped their authority but has taken another step to deny every child the best opportunity to have a mother and a father,' she said in a prepared statement.

But Herrod's arguments and those by the state about the benefits of restricting marriage to heterosexuals are virtually identical to those advanced by attorneys from Idaho and Nevada. And in each and every case, the 9th Circuit rejected them.

One of the prime arguments by the states is that the bans on same sex marriage do not discriminate on the basis of sexual orientation but on the basis of ``procreative capacity.' Put simply, defenders of the disparity note that straight couples can do something that gays cannot: Produce a child without a third party.

Reinhardt said that might represent "a justification for the discrimination worked by the laws.' But he said "it cannot overcome the inescapable conclusion that Idaho and Nevada do discriminate on the basis of sexual orientation.'

The appellate judges were no more kind to arguments that allowing gays to wed will somehow make the institution of marriage less attractive to heterosexuals. Reinhardt said the experience in Massachusetts, where same-sex marriage has been legal since 2004, shows no decrease in marriage rates or an increase in divorce rates in that time.

"It would seem that allowing couples that 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,' he wrote.

Nor were the judges they swayed by contentions that children raised by two parents of the opposite sex are more likely to thrive, what Reinhardt referred to as an argument that those children "receive a better upbringing.' The court said that was not supported by any actual evidence.

Reinhardt judge acknowledged there may be some merit to arguments that because opposite-sex couples can accidentally conceive, marriage is important because it binds such couples together and to their children.

"Defendants' argument runs off the rails, however, when they suggest that marriage's stabilizing and unifying force is unnecessary for same-sex couples, because they always choose to conceive or adopt a child,' he continued. Reinhardt said the issue is that there is a child, not how it was conceived.

"Raising children is hard; marriage supports same-sex couples in parenting their children, just as it does opposite-sex couples,' he wrote.

And Reinhardt said the procreation-as-justification defense for why only heterosexual couples should marry falls apart for several reasons

One is that both Idaho and Nevada -- as well as Arizona -- allow people who cannot have children because they are infertile or too old to marry. And he said if states are particularly interested in increasing the number of children raised by married biological parents, there are other options, like rescinding the right to no-fault divorce -- or eliminating divorce entirely.

"Neither has done so,' Reinhardt wrote. "Such reforms might face constitutional difficulties of their own, but they would at least further the states' asserted interest in solidifying marriage.'

And the judge said if biological parentage is so crucial, states could ban assisted reproduction using donor sperm or eggs, gestational surrogacy -- and, for that matter, adoption by both opposite-sex and same-sex couples, all of which also are legal in Arizona.

"To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional,' Reinhardt wrote.

The court also brushed aside arguments that allowing gays to wed would threaten religious liberty of institutions and people in both states. Reinhardt said this isn't some law on public accommodations about having to bake a cake for a gay wedding.

By Howard Fischer, Capitol Media Services

PHOENIX -- The road to gay marriage in Arizona hit a bump this morning as the U.S. Supreme Court temporarily stayed Tuesday's ruling by the 9th U.S. Circuit Court of Appeals ruling voiding similar laws in Nevada and Idaho.

In a brief order, the justices accepted the pleas from officials in both states to prevent the appellate court from forcing officials there to start issuing marriage licenses. The justices, who had on Monday rebuffed similar efforts from other circuits, gave no reason for their action.

But it also is clear the high court does not want the question to linger. It gave the challengers to the gay marriage bans until 5 p.m. Thursday to file a response.

Rulings by the 9th Circuit are binding in Arizona, though there has been no decision here by U.S. District Court Judge John Sedwick on two separate challenges to both state law and a 2008 voter-approved constitutional amendment defining marriage as solely between one man and one woman.

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