Gay couples who want to wed in Arizona might want to do it soon.
That’s because the 6th U.S. Circuit Court of Appeals on Nov. 6 upheld laws banning same-sex marriage in Ohio, Michigan, Kentucky and Tennessee.
None of that affects Arizona, which answers to decisions reached by the 9th Circuit. And that court’s ruling voiding such laws in Nevada and Idaho clearly applies here.
But the Nov. 6 ruling creates a conflict between federal appellate court circuits. And that means the U.S. Supreme Court, which so far has skirted the question, likely will have to address the issue directly, perhaps as early as this spring.
It’s what happens if the high court sides with the 6th Circuit that could upset the victory gay couples won in federal court here just last month in Arizona.
Attorney General Tom Horne noted that the 2008 voter-approved state constitutional amendment on the issue remains on the books, albeit unenforceable in light of the 9th Circuit ruling. It defines marriage in Arizona as solely between one man and one woman.
And there are older bans on same-sex weddings that also remain in state statutes.
Stephanie Grisham, Horne’s press aide, said those provisions become enforceable again – automatically – if the Supreme Court decides that states have the right to decide who can and cannot wed.
In fact, she said Horne wants the Supreme Court takes the 6th Circuit case. And she said he will support efforts to uphold that ruling “because the definition of marriage is a matter that should be left to the states and the people to decide.”
Horne, however, said he’s not convinced the high court would see it that way.
He said Justice Anthony Kennedy is likely to be the deciding vote. And it was Kennedy who wrote the ruling last year striking down a federal ban on same-sex marriages as unconstitutional.
However, it may not be Horne making that call to urge the justices to side with the 6th Circuit, as his term is up at the end of the year and he surrenders the office to Mark Brnovich. But Brnovich should follow suit: In a response to a candidate survey, said he believes the Arizona ban should be defended “to the fullest extent legally possible.”
Calls to Brnovich were not immediately returned.
It’s not just Horne who believes a Supreme Court ruling siding with the 6th Circuit would put Arizona gay couples back to where they were before last month: unable to wed.
Jennifer Pizer, attorney for Lambda Legal Defense and Education Fund, said the rights of gays to marry in Arizona are safe, for the moment. She said that is supported both by the 9th Circuit ruling in the other states as well as decision here by U.S. District Court Judge John Sedwick voiding Arizona’s restrictions.
“But if the Supreme Court holds otherwise, the state probably could again enforce the laws still on the books,” Pizer said.
She said that likely would prompt a new lawsuit. But this time around the result might be different.
“The state could cite the Supreme Court,” Pizer said. “And the lower courts would apply the new Supreme Court precedent and permit the re-restriction of marriage.”
That raises another question: What about those who are now getting hitched here legally.
Horne and Pizer appear to agree that their marriages likely would remain valid and have to continue to be recognized by the state absent a high court ruling specifically addressing that.
But Pizer conceded that remains an assumption.
“Unless and until the U.S. Supreme Court so holds as a matter of federal law, it’s the likely answer, but not iron-clad.”
There is another remedy for Arizona: Ask voters to repeal the 2008 constitutional provision. If that were to happen, it would not matter what the Supreme Court decides.
That’s because even the 6th Circuit ruling did not say gay marriages are illegal. Instead, the majority said this is a question best left to voters in each state rather than the courts.
Supporters of same-sex marriage actually started organizing last year for a 2016 ballot measure, though those efforts have not advanced much since then as the focus was put on a judicial solution. A Supreme Court ruling otherwise could revive the initiative.
How that would fare, after months of allowing gays to wed, remains unclear. The original 2008 measure was approved by a 56-44 margin.