Attorneys for the state are warning a federal judge that fewer “straight” couples will marry and existing marriages will become less stable if he allows gays to wed.
In a last-ditch effort to keep Arizona’s ban on gay marriage from being voided, the new legal filing claims state recognition of same-sex relationships would send the message that that marriage exists “primarily for the state to approve romantic bonds” instead of to facilitate “sexual conduct of the type that creates children.” Lead attorney Byron Babione of the Christian-based Alliance Defending Freedom, allowed by Attorney General Tom Horne to represent the state, said that would convey the message that “an emotional connection is the defining characteristic of marriage.”
“But if romantic bonds become the ultimate determinant of marriage, no logical grounds would reinforce marriage-stabilizing norms like sexual exclusivity, permanence, and monogamy,” Babione write in legal pleadings to Judge John Sedwick. “So, as society fails to live in conformity with these norms, marriages on the whole are likely to become more unstable.”
Babione also says undermining the link between marriage and procreation means “the social expectation and pressure to marry for man-woman couples having or raising children would likely decrease further.”
“These developments, over time, would lodge in the public mind the idea that marriage is merely an option (rather than a social expectation) for man-woman couples raising children,” he wrote.
But attorney Jennifer Pizer of Lambda Legal Defense and Education Fund said in Massachusetts, where same-sex couples have been able to marry for a decade, there is “zero evidence” there has been any effect on the habits of heterosexual couples.
“It’s a fiction, it’s a fantasy, it came out of somebody’s anxious imagination,” Pizer said.
The filing comes as Sedwick is preparing to rule on challenges to Arizona law and a voter-approved state constitutional amendment which defines marriage as solely between one man and one woman. Plaintiffs include Arizonans who want to wed, couples wed in other states whose relationship is not legally acknowledged here, and survivors of same-sex relationships who want their union recognized.
Separately, Babione also is effectively trying to void a death certificate that Sedwick ordered the state to issue on Sept. 12 that recognized Fred McQuire as the surviving spouse of George Martinez.
In that order, Sedwick said McQuire would suffer irreparable harm if his marriage in California was not recognized after Martinez died in Arizona. State health officials issued the death certificate the same day.
But Sedwick’s action came in the form of a temporary restraining order which, under federal court rules, is good for only 14 days.
Pizer said what’s needed is a permanent order requiring Arizona to honor the death certificate, a move that also paves the way for McQuire to attempt to get federal benefits as a surviving spouse. If that order expires, she said, the death certificate McQuire possesses becomes little more than a piece of paper.
The bigger battle is over whether Arizona’s refusal to legally recognize same-sex weddings violates constitutional equal protection rights.
Attorneys for the state appear on the defensive, especially after Sedwick, ruling in McQuire’s request, wrote it is “probable” there is a conflict between Arizona law and the U.S. Constitution “so that Arizona will be required to permit same-sex marriages.”
Babione and his legal team already have argued that gay marriages cannot be granted the same status as heterosexual unions because of biology. They said the prime purpose of marriage is to produce children who are related to both parents and that gays, by definition, cannot do that.
The latest filing presents new arguments in hopes of convincing Sedwick he should leave the Arizona restrictions untouched.
That includes how traditional marriage would be undermined. But here, too, Babione raises the issue of biology, saying allowing same-sex weddings “would undermine the intrinsic link between marriage and procreation.”
“That change would thus promote the mistaken view that civil marriage has little to do with procreation,” Babione wrote, saying “the social connection between marriage and procreation would wane over time.”
“As fewer man-woman couples marry and as more of their relationships end prematurely, the already significant social costs associated with unwed childbearing and divorce would further increase,” he said.
Babione told Sedwick there are examples of where changes in marriage laws have had detrimental effects, saying no-fault divorce laws increased divorce rates.
“Arizonans may reasonably fear that redefining marriage would lead to similar adverse social trends,” he said.
But Pizer said fears that some change will make society less stable “is never an answer to a request for equal treatment under the law.”
“Everyone is entitled to basic rights,” she said. Pizer compared the arguments to fears that allowing some people to go to the movies might result in others opting not to go.