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Horne hangs final anti-gay marriage hope on technicality

same-sex-gay-marriage-620Attorneys for the state are using a largely technical argument in a last-ditch effort to salvage Arizona’s laws that prohibit gays from marrying.

In legal papers filed Thursday, Attorney General Tom Horne, his staff and outside attorneys said they disagree with last week’s ruling by the 9th U.S. Circuit Court of Appeals overturning virtually bans in Nevada and Idaho that are virtually identical to those in Arizona. In that case, the appellate judges said laws restricting marriage to one man and one woman illegally violate the constitutional rights of gays based solely on their sexual orientation.

In fact, they conceded that appellate ruling is binding on Sedwick – and probably governs what the judge has to rule in Arizona

But Horne instead is seeking to buy time in hopes that somehow the full appellate court – or perhaps the U.S. Supreme Court – will decide otherwise.

Heather Macre, an attorney for one group of plaintiffs seeking to overturn the Arizona ban, said the state’s decision to try a procedural move and not to try to challenge the underpinning of last week’s appellate ruling is not surprising.

“The 9th Circuit dismantled all of their arguments,” she said.

But Jennifer Pizer of Lambda Legal Defense and Education Fund, who represents other challengers, was less charitable in her reaction. She described the state’s filing as “a white-knuckled grip on the last remaining shred on the last remaining straw of a legal position where they’ve conceded that the 9th Circuit decision is binding.”

What Horne is arguing to Sedwick is that the appellate court issued but then withdrew its “mandate” to Nevada and Idaho to start issuing marriage licenses. And while both states have, in fact, started allowing gays to wed, Horne told Sedwick he cannot legally rely on the 9th Circuit ruling to void the Arizona law – at least not yet.

In fact, Horne called any effort by Sedwick to void Arizona’s laws based on the 9th Circuit ruling “a gamble.”

Pizer, however, said Horne and his staff have not identified a single issue that would somehow make Arizona’s ban on gay marriage legally different than the ones already overturned.

“And yet these lawyers working for Tom Horne are blocking the door to prevent this particular group of people from being able to room where everybody else lives,” Pizer said. “It’s hardly an honorable position for the state.”

Horne referred all calls to Rob Ellman, the state’s solicitor general, who works for him. Ellman declined to comment.

The Alliance Defending Freedom, a Christian law firm which has helped the state defend the law, has consistently referred all calls to Horne.

The legal point on which Horne and his staff are hanging their hopes stems from the fact that last week’s ruling about Idaho and Nevada laws was issued by a three-judge panel of the appellate court.

There are interests in those states who want to preserve a ban on same-sex weddings. So they want that decision reviewed by the full appellate court.

The U.S. Supreme Court last week already refused to provide an emergency stay of the 9th Circuit ruling while the foes of same-sex marriage prepare an appeal.

That should have ended the matter. But it didn’t.

In a brief order earlier this week, the appellate court said it would “afford (Utah) a second opportunity to obtain an emergency stay of our order from the Supreme Court, even though we see no possible basis for such a stay.” That leaves full and final implementation of the 9th Circuit ruling in legal limbo.

The move may end up being, at best, a stalling tactic.

Every other federal appeals court in the country that has looked at the issue has concluded that state laws banning same-sex marriage are unconstitutional. And each and every attempt to get the Supreme Court to intercede – or at least delay the order – has been spurned.

Sedwick already has tipped his hand a bit, ruling in a related issue that it appears Arizona’s 2008 voter-approved ban on same-sex weddings and older state statutes violate constitutional rights.

Less clear is what will happen the moment he rules, assuming he sides with challengers.

Pizer said that, unless the judge also agrees to stay the effect of his order, that would allow same-sex couples to immediately go to county clerks and demand marriage licenses. And with Arizona having no waiting period, that could mean weddings shortly thereafter.

Macre was more cautious in her analysis, saying a lot of it depends on exactly how Sedwick words his order. And, if nothing else, she said county clerks are not prepared to issue same-sex licenses.

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