PHOENIX — Gay couples who want to wed in Arizona might want to do so soon, court watchers say.
That’s because the 6th U.S. Circuit Court of Appeals on Thursday upheld laws banning same-sex marriage in Ohio, Michigan, Kentucky and Tennessee.
None of that affects Arizona, which answers to decisions reached by the 9th Circuit. And that court’s ruling voiding such laws in Nevada and Idaho clearly applies here.
But Thursday’s ruling creates a conflict between federal appellate court circuits. And that means the U.S. Supreme Court, which so far has skirted the question, likely will have to address the issue directly, perhaps as early as next spring.
It’s what happens if the high court sides with the 6th Circuit that could upset the victory gay couples won in federal court just last month in Arizona.
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Arizona Attorney General Tom Horne noted that the 2008 voter-approved state constitutional amendment on the issue remains on the books, albeit unenforceable in light of the 9th Circuit ruling. It defines marriage in Arizona as solely between one man and one woman.
And there are older bans on same-sex weddings that also remain in state statutes.
Stephanie Grisham, Horne’s press aide, said those provisions will become enforceable again — automatically — if the Supreme Court decides that states have the right to decide who can and cannot wed.
She said Horne wants the Supreme Court to take the 6th Circuit case. He will support efforts to uphold that ruling, Grisham said, “because the definition of marriage is a matter that should be left to the states and the people to decide.”
Horne, however, said he’s not convinced the high court would see it that way.
He said Justice Anthony Kennedy is likely to be the deciding vote. And it was Kennedy who wrote the ruling last year striking down a federal ban on same-sex marriages as unconstitutional.
It may, however, not be Horne making that call to urge the justices to side with the 6th Circuit, as his term is up at the end of the year and he surrenders the office to Mark Brnovich. But Brnovich is expected to follow suit: In a response to a candidate survey, he said he believes the Arizona ban should be defended “to the fullest extent legally possible.”
Calls to Brnovich for additional comment were not immediately returned.
It’s not just Horne who believes a Supreme Court ruling siding with the 6th Circuit would put Arizona gay couples back to where they were before last month: unable to wed.
Jennifer Pizer, attorney for Lambda Legal Defense and Education Fund, said that for the moment the rights of gays to marry in Arizona are safe. That is supported both by the 9th Circuit ruling in the other states as well as the decision here by U.S. District Judge John Sedwick voiding Arizona’s restrictions, she said.
“But if the Supreme Court holds otherwise, the state probably could again enforce the laws still on the books,” Pizer said.
She said that likely would prompt a new lawsuit. But this time around, the result might be different.
“The state could cite the Supreme Court,” Pizer said. “And the lower courts would apply the new Supreme Court precedent and permit the re-restriction of marriage.”
That raises another question: What about those who are now getting hitched here legally?
Horne and Pizer appear to agree that their marriages likely would remain valid and have to continue to be recognized by the state absent a high court ruling specifically addressing that.