Even though views toward homosexuality have changed in recent years, there still is no fundamental right for two people of the same sex to marry one another, the Arizona Court of Appeals has ruled.

In a 3-0 opinion released Oct. 8, Presiding Judge Ann A. Scott Timmer wrote: “…We hold that the fundamental right to marry, protected by our federal and state constitutions, does not encompass the right to marry a same-sex partner. Moreover, although many traditional views of homosexuality have been recast over time in our state and nation, the choice to marry a same-sex partner has not taken sufficient root to receive constitutional protection as a fundamental right.”

Tod Alan Keltner and Harold Donald Standhardt of Phoenix in late June applied to the Maricopa County Superior Court clerk for a marriage license to formalize their relationship. The clerk of the court denied the license based on ARS 25-101(C) and 25-125(A) which, respectively, prohibit marriages between persons of the same sex and define a valid marriage as a union between a man and a woman.

Attorneys for the men, Candace Kent and Michael Ryan of the Phoenix firm of Kent & Ryan, argued in a petition to the Court of Appeals that the refusal of a marriage license to their clients violated the right to due process under the 14th Amendment to the U.S. Constitution and Article 2, Section 4 of the Arizona Constitution, and the right to privacy guaranteed under Article 2, Section 8 of the state Constitution.

The attorneys for Mr. Standhardt and Mr. Keltner argued in their petition to the court that the June 26 ruling by the U.S. Supreme Court in the case of Lawrence v. Texas implicitly recognized the right of two people of the same gender to marry one another. The Lawrence opinion struck down a Texas law that prohibited sexual intimacy between two people of the same gender.

Judge Timmer Dismisses Argument

But Judge Timmer dismissed that argument, writing that Arizona Assistant Attorney General Kathleen P. Sweeney correctly pointed out in her response that the justices of the nation’s high court ruled that the Lawrence case did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

Judge Timmer also said that attorneys for the Arizona men seeking a marriage license incorrectly interpreted the U.S. Supreme Court’s 1967 ruling in Loving v. Virginia. In that case, the state of Virginia’s prohibition against interracial marriages was struck down.

“Petitioners assert that because the ‘freedom of choice to marry’ recognized in Loving is unrestricted, it encompasses the right to marry anyone, including a same-sex partner, even in the face of traditional, societal disapproval of such unions,” Judge Timmer wrote. “We disagree. Implicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman. Thus, while Loving expanded the traditional scope of the fundamental right to marry by granting interracial couples unrestricted access to the state-sanctioned marriage institution, that decision was anchored to the concept of marriage as a union involving persons of the opposite sex. In contrast, recognizing a right to marry someone of the same sex would not expand the established right to marry, but would redefine the legal meaning of ‘marriage.’”

Ms. Kent and Mr. Ryan did not return telephone calls seeking comment on whether they plan to appeal the decision to the Arizona Supreme Court. Mr. Keltner and Mr. Standhardt could not be reached for comment on the decision.

Len Munsil, an attorney and president of the Scottsdale-based Center for Arizona Policy, hailed the Court of Appeals decision. Mr. Munsil drafted the 1996 amendment to state law that specifically defined a marriage as a union between a man and a woman.

“Obviously, we are thrilled that the court refused this invitation to judicial activism,” Mr. Munsil said. “We hope this clear, well-reasoned opinion will have national impact in declaring what should be obvious — there is no federal or state constitutional right to gay marriage. Any court that would declare such a right would be engaging in liberal activism and ignoring the will of the people.”

The case number is 1 CA-SA 03-0150. —