Legal same-sex marriages could take place in Arizona by the end of 2014, says an attorney representing a lawsuit by same-sex partners.
On Monday, the U.S. Supreme Court decided not to consider appeals of lower-court decisions supporting the challengers of same-sex marriage bans in Wisconsin, Indiana, Oklahoma, Utah and Virginia. Legal experts said that makes it less likely for bans in other states, like Arizona, to survive in the long run.
Today, the Ninth Circuit of Appeals struck down bans in Idaho and Nevada based on the 14th Amendment's Equal Protection Clause, meaning that Arizona's ban is on even shakier ground.
Paul Eckstein, a lawyer for a same-sex partner case now before Arizona U.S. District Court, says it's possible things could move quickly now, with weddings happening sooner rather than later.
The Arizona Legislature passed a ban on same-sex marriage in 1996, and voters enshrined the ban in the Arizona Constitution through a 2008 ballot measure. Arizona law, below a prohibition on marriage between close family relatives, states that "marriage between persons of the same sex is void and prohibited."
The defendants in the Nevada and Idaho cases could file a petition for relief with the U.S. Supreme Court, but that's unlikely considering Monday's decision, Eckstein says.
Arizona Attorney General Tom Horne, who was defeated by Republican challenger Mark Brnovich in the August 26 primary election, says his office is still analyzing today's ruling to see "just how broad or narrow the language is."
Arizona could intervene in the Nevada and Idaho cases and file its own petition for certiorari review, Horne says.
After Monday's Supreme Court decision, Horne released a statement saying it "does not affect the validity of the Arizona laws challenged in the cases that our office is presently litigating. The judicial decisions challenged in the certiorari petitions do not bind the United States District Court for the District of Arizona. We will continue to defend the lawsuits challenging the constitutionality of Arizona's marriage laws unless and until a controlling judicial decision deems those laws unconstitutional."
The defendants in the Idaho and Nevada cases also could ask for an en banc decision from the Ninth Circuit court, which involves a larger panel of judges. If that happens, the defendants could receive a stay that prevents same-sex weddings until a new ruling. The en banc ruling also would take a few months to arrive, which could delay same-sex weddings in Arizona.
Eckstein is helping Lambda Legal to represent a case filed earlier this year on behalf of same-sex partners. The case was given a boost on September 12, when U.S. District Judge John Sedwick ordered the state Department of Health Services to alter a death certificate for a man to show he was married to another man.
Horne isn't trying this case personally, as he's done with others. Horne doesn't believe in the ban and thought he would ultimately lose any defense of it, which is why he farmed it out to Robert Ellman, state Solicitor General, according to Eckstein.
The Supreme Court's action means that same-sex weddings is now legal in 30 states.
UPDATE: Dan Barr, another lawyer with Perkins Coie, like Eckstein, says in a Facebook update that the Ninth "crushed" the defendants opposed to gay weddings, and quotes from today's ruling:
Ninth Circuit applies heightened scrutiny to not only strike down same-sex marriage bans within circuit that includes Arizona, but to crush them. "The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions. When we integrated our schools, education improved. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 492-95 (1954). When we opened our juries to women, our democracy became more vital. See Taylor v. Louisiana, 419 U.S. 522, 535-37 (1975). When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion. See Witt v. Dep't of Air Force, 527 F.3d 806, 821 n.11 (9th Cir. 2008). When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all."
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