The Ninth Circuit Court of Appeals same-sex marriage opinion this week, once finalized next week, is binding precedent for other states within the Ninth Circuit, which includes Arizona.
In recognition of this fact, U.S. District Court Judge John Sedwick has ordered the parties in the Arizona same-sex marriage cases before him in the U.S. District Court for Arizona to submit their briefs by next Thursday, October 16.
The order Judge Sedwick will issue is not in doubt. The only question is whether the state of Arizona will abandon its defense of state-sanctioned discrimination against same-sex couples, as other states have done, or will it continue with a fruitless appeal at taxpayer expense solely for purposes of delay.
The Arizona Republic reports, Judge: Ariz. has 1 week to respond to gay-marriage ruling:
The fate of Arizona’s marriage law could be decided in a week.
U.S. District Judge John Sedwick issued an order Thursday night stating that he believes this week’s appellate court ruling that declared Idaho and Nevada’s marriage restrictions unconstitutional applies to Arizona, as well.
The 9th U.S. Circuit Court of Appeals said Tuesday that Idaho’s and Nevada’s laws preventing same-sex couples from marrying violated their right to equal protection under the 14th Amendment.
Sedwick, an Alaska judge who often helps pick up Arizona cases, gave the parties in two lawsuits challenging Arizona’s law until next Thursday to file briefs arguing how the 9th Circuit decision does or does not apply. Arizona is part of the San Francisco-based circuit.
Dan Barr, an attorney representing some of the same-sex couples in one of the Arizona lawsuits, said their argument will be “short and sweet.”
“The 9th Circuit has addressed all the arguments that the state has put up in defense of its gay-marriage ban and rejected all of them,” he said. “I think it’s highly probable you’ll have gay marriage in Arizona by Thanksgiving, if not by the end of the month.”
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Amid the legal back-and-forth, Arizona waits for direction from either state Attorney General Tom Horne or Sedwick.
Horne could determine that the 9th Circuit order applies to Arizona and immediately instruct county clerks to begin issuing licenses. He is not expected to do that.
“We’re still going to file our briefs on Thursday and then wait for Sedwick to rule on our briefing,” Horne spokeswoman Stephanie Grisham said. “I am sure he will rule against us, and then it will be up to our office at that point to decide if we file an appeal.”
Once Sedwick rules, Horne can either appeal Sedwick’s ruling to the 9th Circuit or stop his challenges, allowing same-sex couples to begin marrying.
Why Marriage Matters Arizona has a petition drive asking Tom Horne and the state of Arizona to drop its defense of state-sanctioned discrimination against same-sex couples, and to not pursue a fruitless appeal at taxpayer expense solely for the purpose of delay. “Justice delayed is justice denied.” The Phoenix New Times reports, Equality Group Calls on Tom Horne to Step Aside, Stop Defending State’s Gay-Marriage Ban:
Why Marriage Matters Arizona delivered more than 5,100 signed petitions to the Attorney General’s office yesterday. “The petition calls on him to stop standing on the wrong side of history and stop standing in the way of allowing loving, committed couples to marry,” says Jeremy Zegas, project director for the organization.
The delivery comes on the heels of an eventful week in the fight for (and against) gay marriage.
On Monday, the U.S. Supreme Court declined to hear appeals on marriage cases coming out of several federal circuits. And on Tuesday, the Ninth U.S. Circuit Court of Appeals–the San Francisco-based court that has jurisdiction over Arizona–ruled that gay marriage bans in Nevada and Idaho were unconstitutional.
The attorneys on one local cases challenging Arizona’s ban, Connolly v. Roche, filed a motion asking U.S. District Judge John Sedwick to decide quickly whether the Ninth Circuit’s decision will apply in Arizona. Sedwick gave both sides seven days to make their case as to why the circuit court’s decision should or should not apply in the state. These filings will be due next Thursday.
Sedwick has suggested that he thinks the Ninth Circuit’s decision will apply. If he does rule in favor of overturning Arizona’s gay marriage ban, the state could still appeal that decision. But for that appeal, it would have to turn to the Ninth Circuit, the very court that overturned such bans this week.
Instead, Zegas and other gay-marriage supporters are asking Horne to give up the fight. Attorney generals in several other states have stopped defending their state’s gay marriage bans. West Virginia’s attorney general joined that list just yesterday.
Horne’s office did not immediately return a request for comment. In a statement on Monday, he said, “We will continue to defend the lawsuits challenging the constitutionality of Arizona’s marriage laws unless and until a controlling judicial decision deems those laws unconstitutional.”
Tom Horne should submit a brief, as the Attorney General of several other states have done, acknowledging that Arizona’s state-sanctioned discrimination against same-sex couples violates equal protection and due process under the U.S. Constitution as the 9th Circuit Court of Appeals opinion holds, and that Arizona will abandon its defense of these cases. Step aside and let freedom to marry ring!
The next steps will be for the Arizona legislature to repeal discriminatory statutory provisions prohibiting same-sex marriages, and to refer by referendum to the ballot the repeal of Prop.102 (2008), adding Article XXX to the Arizona Constitution defining “marriage” as “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”
This artifact of state-sanctioned discrimination against same-sex couples should be removed from the Arizona Constitution, as Southern States have removed from their state constitutions the stain of provisions providing for slavery and state-sanctioned segregation of the races.
Finally, the Arizona legislature needs to take the next step of amending the Arizona Civil Rights Act (ACRA) to prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity, and in public accommodations and housing. It’s time to join the 21st Century, and to repudiate the ignorance of SB 1062.