Tom Horne concedes 9th Circuit Court of Appeals decision striking down same-sex marriage bans applies to AZ


The state of Arizona has submitted its reply briefs in Majors vs. Horne and Connolly vs. Roche, the two legal challenges to Arizona’s constitutional ban on same-sex marriage.

9cirIn a bit of a surprise, the Arizona-based Christian legal group Alliance Defending Freedom to whom Attorney General Tom Horne had farmed out the litigation of these cases did not submit the briefs — it was the Arizona Attorney General’s office.

A bigger surprise is that Tom Horne agrees that the 9th Circuit Court of Appeals ruling from last week does apply to Arizona, just as soon as the Ninth Circuit Court issues its mandate. His brief is only two pages. Arizona is conceding the cases. Marriage equality in Arizona is only a technicality away.

The Arizona Republic reports, Horne concedes gay marriage ruling applies to AZ:

AzEqualThe state’s brief argument concedes that the 9th Circuit ruling would apply to Arizona, but says Sedwick should wait to issue his ruling until the 9th Circuit issues a mandate. The mandate is essentially a technical document telling the courts to go forward with the opinion. The 9th Circuit issued a mandate within hours of its original ruling but withdrew it so Idaho could appeal. That appeal is concluded but the 9th Circuit has not yet reissued the mandate.

Attorneys for the same-sex couples in the Majors vs. Horne case argued the 9th Circuit ruling “requires that Arizona’s discriminatory marriage ban be struck down as unconstitutional.”

“The 9th Circuit has now joined an ever-lengthening list of federal courts deciding that there is no ‘gay exception’ to our U.S. Constitution’s guarantees of liberty and equality for all, including the freedom to celebrate love, commitment, and family with the person of one’s choice in marriage,” the attorneys wrote in their filing. “Arizona excluded same-sex couples from marriage not to advance compelling interests, but to make them and their families unequal to everyone else.”

Attorneys for same-sex couples in the Connolly vs. Roche case said Arizona defended its law with the same arguments that failed before the 9th Circuit: that the state has a need to protect the traditional definition of marriage in order to bind children to their biological parents, that the traditional definition of marriage helps assure fathers remain in the picture and help raise their children and that allowing same-sex couples to marry will undermine the value of marriage for opposite-sex couples.

The 9th Circuit dismissed all three of those arguments, as have other appeals courts.

“Same-sex marriages are now being performed and recognized in 30 of the 50 states,” the attorneys wrote. “The same should finally come true in Arizona.”

Sedwick could issue a ruling at any time. If he deems the law unconstitutional, Horne could then either concede and instruct county clerks to begin issuing licenses to same-sex couples or appeal to the 9th Circuit. [Horne has conceded; no appeal.]

Some of you may be thinking to yourself, “Damn! That Tom Horne finally did the decent thing on his way out the door.” Not so fast. The Republic in an editorial opinion gets it right: Tom Horne, take a knee on same-sex marriage:

While it’s admirable that Horne recognizes how this case will end, he does neither the law nor his legacy any favors by asking the judge to delay action. He’s buying at most a few days.

It would have been so much better if he had filed a brief acknowledging that the 9th Circuit ruling applies to Arizona, urging the federal judge to immediately issue a ruling to that effect and pledging to tell court clerks to begin granting licenses as soon as the judge ruled.

That would have acknowledged the inevitable and honored the many committed gay and lesbian couples who have waited patiently for the legal and societal benefits a marriage license confers. It will be theirs within a few days. Horne only looks small for insisting on a delay.

Gay and lesbian couples have forged lifetime bonds without any of the legal certainties their heterosexual neighbors have enjoyed. As they gain those certainties, the institution of marriage will be strengthened. This is something to celebrate, not postpone.

In any event, things are going to move quickly now. Judge Sedwick just needs to issue his order, and the Ninth Circuit needs to issue its mandate — it’s game over.  You can start making your wedding plans.