Now that Arizona’s statutory and constitutional provisions banning same-sex marriage have been struck down by the court as unconstitutional, there is much more work to be done.
The next step for the Arizona legislature will be to clean up a number of statutory provisions through “technical amendments” to make them gender neutral. This includes not just marriage, but for example, property rights; wills, trusts and estates; child rearing and custody rights; the right to adoption; medical power of attorney and directives, and hospital visitation; employee benefits, including health insurance; tax filing status; divorce, property settlement, spousal support and maintenance; and even the criminal code for such things as spousal abuse, abandonment, etc.
The Arizona Republic had a decent article on this on Sunday. Gay-marriage ruling brings new legal questions:
Same-sex couples in Arizona this weekend celebrated their newly won right to marry. But their fight for equality under the law isn’t over.
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[A] number of laws include wording that could allow the state to discriminate against same-sex couples, including a 2011 statute that explicitly gives a married man and woman preference in adoptions.
And then there are details to be worked out when same-sex couples arrive at the hospital to have a baby, and then when Arizona same-sex couples face less joyful firsts, from the first couple to seek a divorce to custody battles.
“It will be obvious that today’s victory means that couples who are married should be treated as married, even in the context like adoption,” Jennifer Pizer, senior attorney with the gay-rights organization Lambda Legal, said after Friday’s legal ruling. “I’m hopeful that the state will be helpful in this instance and save everybody the trouble of there needing to be further legal considerations about it.”
Generally, same-sex couples who marry in Arizona won’t have to do anything special to claim the rights granted to opposite-sex married couples, including having the authority to make health care and death decisions for a spouse.
“Parenting is a little different,” Pizer said.
If one parent already has legal custody of a child he or she has adopted and the couple then legally marries, the other parent will likely have to go through the stepparent adoption process.
“The procedure is similar, more streamlined than a traditional adoption,” Pizer said. “There’s not a home study” — where social workers scrutinize the home environment — “which is very intrusive.”
Under Arizona law, there is a presumption that a married man and woman who have a child are automatically that child’s legal parents, even in cases where the child may have been conceived from donated egg, sperm or embryo. Pizer said when a married same-sex couple arrives at the hospital to have a baby, they should now also be automatically considered the two legal parents.
But there have been challenges with that in other states, she said. What happens in Arizona, she said, remains to be seen.
“In most circumstances, the couple will present themselves as legally married and medical personnel will proceed accordingly and it will be fine,” she said. “But we will be prepared to take appropriate educational action if we have to.”
Douglas Gardner, a family law attorney, said “the world is different now” but same-sex couples will still face legal hurdles.
When looking to end their marriages, courts will typically consider the length of marriages, not the length of the relationship, when determining spousal support and alimony. That could cause financial heartache for some couples, he said.
“The court would look at it as a very short-term marriage if the couple got married today, even though the relationship lasted much longer,” he said. “And would not award spousal support for the length of the relationship.”
Pizer said they’ve seen this issue in states that have legalized marriage for same-sex couples.
“Arizona will probably come up with some sort of common-law test based on what commitments the couple made at different stages in their relationship,” she said. “Marriage may not be a complete marker.”
Now that 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,” has been struck down as unconstitutional and is “dead letter” law, the Arizona legislature should refer the repeal of this measure to the ballot.
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 should 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.
Unfortunately, I would anticipate that the dead-enders at the Center for Arizona Policy and other anti-gay organizations will be back with what they euphemistically refer to as “religious liberty” measures, like SB 1062, to grant them a carve-out from having to comply with laws that conflict with their “deeply held religious beliefs or moral convictions,” i.e., a “right to discriminate” card.
I suggest that you substitute someone’s race, nationality, ethnic origin, or religious belief for sexual orientation or gender identity and see how well received that argument would be with the public or in the courts. Equal protection of the laws means just that, equal protection. No one gets to opt-out of complying with the law because they want to discriminate against their fellow American citizens. Nor are fundamental constitutional rights subject to a plebiscite vote, that’s what makes them fundamental constitutional rights.
