An Arizona case, Brewer v. Diaz, was one of 10 same-sex marriage cases on the court’s conference agenda Friday, but the court accepted only two of them: a California case in which the justices will determine whether the 14th Amendment bars the state from defining marriage as between a man and woman, and whether the federal Defense of Marriage Act violates the Fifth Amendment equal protection clause as it is applied to same-sex couples legally married under state law. They will probably be heard in March.
Whether the Arizona case is returned to the lower courts or stays on hold at the Supreme Court won’t be known until Monday, when the court typically issues its orders denying certiorari.
Arizona State University law professor Paul Bender said the court often employs the strategy of holding a case to avoid reaching a decision in one matter that will conflict with another on a related issue.
“I find it hard to believe they will deny it on Monday,” Bender said.
If the case is denied, then it will return to U.S. District Court for a decision on whether to permanently block Arizona’s law that defines dependents as a spouse and child. The law, passed in a budget bill in 2009, is temporarily blocked while the legal challenge goes through court.
The state had previously recognized domestic partners, defined as same or different sex, as dependents.
After the passage of the new law, a group of gay and lesbian state employees who have life partners filed suit in November 2009, alleging that the law discriminated against gays and lesbians because they couldn’t marry under Arizona’s law.
A U.S. District Court judge found the law unconstitutional in 2010 and the 9th U.S. Circuit Court of Appeals upheld the ruling.
The lower courts ruled that while they didn’t find the law discriminatory on its face, it made it impossible for gay and lesbian couples to obtain the benefits.
The state, justifying the law as a cost savings measure passed in an economically turbulent time, says in its briefs the lower courts went against Supreme Court precedent requiring proof the Legislature intended to discriminate on the basis of sexual orientation.