U.S. Supreme Court

PHOENIX -- The pair of Supreme Court rulings Wednesday on the issue of gay marriage did leave Arizonans who support the issue with one small victory.

The justices, in issuing their last rulings of the session, left undisturbed a 9th Circuit Court of Appeals ruling which says Arizona cannot refuse to provide benefits to the domestic partners of gay state and university employees.

Attorney General Tom Horne had asked the high court to overturn that ruling. And while the justices had put the case on their schedule for discussion at least five different times, they never even agreed to let Horne make his case.

The court is set to issue a final set of orders today (eds: thursday). But the most that could happen is the justices could send the case back for further review by the appellate court in light of their decision tossing out a key provision of the federal Defense of Marriage Act.

But gays couples living in Arizona got precious little else from the high court.

"There will be federal benefits available to married gay couples in Arizona that got married in one of the 13 states or D.C. where it's legal,'' said Rebecca Wininger, president of Equality of Arizona.

But there is no relief for those living here and wanting to wed, as Justice Anthony Kennedy, writing the majority ruling, said it remains up to each state to define marriage. What the federal government cannot do, he wrote, is ignore that state decision and instead treat those married couples as single for purposes of federal laws, ranging from bankruptcy protections to being buried together in a national cemetery.

"DOMA contrives to deprive some couples married under the laws of their states, but not other couples, of both rights and responsibilities,'' Kennedy wrote. "By creating two contradictory marriage regimes within the same state, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the state has found it proper to acknowledge and protect.''

One big issue is the ability to file joint tax returns. But Bob Lind, an enrolled agent who specializes in tax law, said even those gay couples who are legally married in another state will lose that privilege if they happen to move to Arizona.

The key, said Lind, is the 2008 voter-approved state constitutional amendment.

"Arizona has a law that says two people of the same gender can't be married,'' he said. Lind said that, regardless of what occurred legally elsewhere, their relationship remains illegal in the state.

Lind pointed out that the Supreme Court dealt only with one provision of DOMA: the issue of federal benefits. He said the court never addressed another section which spells out that states are not required to honor same-sex marriages performed in other states.

Changing that will require voter approval of an initiative being circulated to essentially repeal that 2008 amendment. It would redefine marriage as between any two persons.

Gov. Jan Brewer said as far as she's concerned, the law in Arizona should remain the way it is. And she rejected the contention that gay marriage is inevitable in the state. But Brewer was more circumspect when asked what would be so bad if gays were allowed to wed here.

"I think because of my faith, that plays a role,'' she said. "I believe that the Bible says marriage is between a man and a woman.''

More to the point, Brewer said that is the belief of the majority of Arizonans, as shown by that 2008 vote.

That's also the contention of Cathi Herrod, president of the Center for Arizona Policy which helped engineer that 2008 vote. But she acknowledged that the Supreme Court rulings on both DOMA and California's Proposition 8 will have an impact.

"It means that the public debate on marriage will continue,'' she said. Herrod said while she believes a majority of Arizonans still support the ban on same-sex nuptials, she recognizes the fight coming if backers of the initiative drive get the 259,213 valid signatures by July 2014 to put the issue on the general election ballot.

"Obviously, we're going to have a public debate in Arizona over why marriage matters and the definition of marriage,'' Herrod said. She said the Supreme Court, in saying this is an issue of states' rights, "enables the people to make that decision.''

Herrod also rejected the idea that gay marriage is inevitable.

"Communism fell, the Equal Rights Amendment did not pass,'' she said. "So to say same-sex marriage is inevitable ignores the lessons of history.''

(1) comment

John Flanagan

Brewer is a great governor, and a woman of good Christian convictions. This automatically makes her unpopular with those who have no morals and character.

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