Who's Next In Allowing Same-Sex Marriages

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Many same-sex couples in Arizona spent the weekend getting marriage licenses, after a federal judge overturned the state’s ban on gay unions Friday. A flurry of states have started allowing all couples to wed in recent weeks, and some of them — like firmly conservative Arizona — may come as a surprise. But much of the change has been a fairly orderly result of the judicial process.

The downfall of Arizona’s ban on same-sex marriage came pretty fast, at least from a legal perspective — less than a year from the time lawsuits were filed in federal district court. On October 6, the U.S. Supreme Court refused to hear cases on same-sex marriage bans in five states, effectively allowing those unions to go forward.

Just one day later, the Ninth U.S. Circuit Court of Appeals struck down marriage bans in Idaho and Nevada. Since Arizona is also in the Ninth judicial circuit, a judge overturned the ban here and Republican Attorney General Tom Horne decided he wouldn’t appeal.

“The only purpose that would be served by filing another appeal would be to waste the taxpayers’ money. That is not a good conservative principle,” Horne said.

As Horne made his announcement, couples were already standing by at the Maricopa County courthouse waiting to get their licenses. Nelda Majors and Karen Bailey have been together for almost 57 years and were the lead plaintiffs in one of the lawsuits challenging Arizona’s ban. They had decided not to get married in another state that allows it.

“This is our home. This is where we live, and we wanted to do it here,” Majors said.

“We really wanted Arizona to recognize us and to make us feel as a whole person, too, and they’ve done it. And we thank Tom Horne very much for making this decision," Bailey added.

Still, Arizona AG Horne did say he thought the judge was wrong to overturn Arizona’s ban, which was voter approved by 56 percent in 2008. Governor Jan Brewer said much the same in a statement, charging unelected federal judges with thwarting the will of the people and eroding the authority of states.

“Voters in Arizona have had their voices silenced by an out-of-control federal judiciary,” said Cathi Herrod, president of the Center for Arizona Policy, a socially conservative lobbying group. They helped push a bill earlier this year that would have allowed Arizona business owners to deny service to lesbian and gay people based on their religious beliefs.

“Throughout this country, marriage litigation is not over. Five circuit courts of appeal have yet to rule on the issue of the definition of marriage, so in many, many ways the effort to rebuild a culture of marriage, to continue to promote marriage as the union of only one man and one woman has just begun,” Herrod said.

So, which court is likely to rule next? Carl Tobias, a law professor at the University of Richmond in Virginia, says the 6th Circuit heard oral arguments on bans in Kentucky, Michigan, Ohio and Tennessee back in August.

“And I think from the tone and the questions in the argument, there’s some likelihood that might be two-to-one to uphold a ban, but that’s just guessing. And so that could be any day now,” Tobias said.

Tobias says if a circuit court upholds a ban, that could push the U.S. Supreme Court to take up the issue. But he’s not sure how successful opponents of same-sex marriage would be at the high court, since it’s already tacitly approved gay unions in certain states.

“I think that it really is a signal that there are not five votes to find a ban constitutional,” he said.

After the judge’s ruling, a group gathered at a church in central Phoenix to celebrate that same-sex marriage is now legal in Arizona and in a majority of U.S. states. But LGBT activists don’t think their work is done.

“Many people in Arizona don’t even realize that same-sex couples here can get married one day and receive a pink slip the next day as a wedding present," said Jennifer Pizer, senior counsel for Lambda Legal, which worked on the suit against Arizona’s ban.

Pizer says fighting for employment and housing protections and anti-bullying measures will keep her and her colleagues busy for a long time to come.


This segment aired on October 20, 2014.


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