Ruling Near – October 10, 2014

Alia Beard Rau, The Republic | azcentral.com 10:07 p.m. MST October 10, 2014

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.

The Arizona-based Christian legal organization Alliance Defending Freedom is representing the state in the two lawsuits. Attorneys with the group did not return calls seeking comment.

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.”

Joe Connolly and Terry Pochert, plaintiffs in one of the two Arizona cases, said Friday that the week’s events had buoyed their optimism that Sedwick would rule in their favor.

“I personally think eventually this will be very positive for the state of Arizona,” Pochert said. “If we win this case, I think our real work starts, and that’s that process of healing. I think it’s going to take a couple of years or even longer for people to realize the impact of the decision. I think people will realize nothing has really changed. We’ve created another layer in society that’s a little more stable.”

Connolly and Pochert, of Maricopa, married legally in California in 2008; so, if the court overturns Arizona’s law, they won’t line up for a marriage license at the Pinal County clerk’s office. Instead, they will wait for Arizona to recognize their union.

At their Lutheran church in Tempe, Connolly and Pochert have met others who would feel the effects of a ruling more immediately. One couple have been trying to adopt children and have been frustrated by laws that treat them differently than a legally married couple.

“This is going to be a chance for them to have their relationship recognized,” Connolly said. “They will be able to marry in the church, get dual parental adoption rights and probably health benefits. Something like that makes all the work we went through absolutely worth it.”

The 9th Circuit ruling came one day after the U.S. Supreme Court turned away appeals from five states seeking to prohibit same-sex marriages. After the 9th Circuit issued its opinion, Idaho immediately asked the U.S. Supreme Court for an emergency halt to the ruling to give the states time to appeal.

Justice Anthony Kennedy granted it — at least temporarily.

But Friday afternoon, with no comment, the high court lifted the stay, requiring Idaho to begin issuing licenses to same-sex couples. The stay did not apply to Nevada. Clerks in that state began issuing marriage licenses to same-sex couples Thursday night.

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.

Alaska and Montana are in the same situation as Arizona. They are under the jurisdiction of the 9th Circuit and have local marriage lawsuits pending in lower federal courts.

The Alaska judge overseeing that state’s case held a hearing Friday afternoon to allow the two sides to argue why they think the 9th Circuit ruling does or does not apply to their case. The Montana judge has not indicated what he may do or when.

Byline under one of the movies:
Arizona Republic columnist EJ Montini and reporter Richard Ruelas discuss the latest developments for same-sex marriage in Arizona.

Terry Pochert (left) and his husband, Joe Connolly, are suing for the right to marry in Arizona. A U.S. District Court judge gave parties in two Arizona cases until Thursday to file briefs stating why the 9th Circuit ruling does or does not apply to Arizona. (Photo: Pat Shannahan/The Arizona Republic)