Arizona will almost certainly have gay marriage by Thanksgiving, if not by the end of October. I have not seen much about this in the news, other than this article, so let me break down how this will happen.
Last week the 9th Circuit Court of Appeals (the Federal Court of Appeals that oversees Arizona and other western states) ruled that the gay marriage bans in Idaho and Nevada are unconstitutional. (This follows the lead of over 25 other courts that have reached the same conclusions around the country as a result of last year’s DOMA case). The decision was appealed to the United States Supreme Court, and the Court declined to hear the case. That is why Idaho and Nevada are now issuing marriage licenses to couples in those states. But what about Arizona?
Arizona’s ban was not a question before the Court last week. However a lawsuit was filed back in March challenging Arizona’s ban on gay marriage. The lawsuit is pending in Federal District Court in downtown Phoenix. After last week’s ruling by the 9th Circuit, the Judge hearing the Arizona case decided to move things forward.
Because the Federal Court in Phoenix must follow the law of any case that the 9th Circuit hears, the Judge told the parties in the case that they must file briefs by this Thursday. Essentially he said “tell me why I should not end this case now and hold that Arizona’s ban on gay marriage is unconstitutional,” or in legal jargon, how can you distinguish the gay marriage bans in Idaho and Nevada from Arizona’s?
The answer is clear, and that is that the judge will hold that Arizona’s ban on gay marriage is no different and therefore unconstitutional. At that point Arizona’s Attorney General, Tom Horne, who is working with a private Christian group in defending Arizona’s ban, will almost certainly appeal the decision to…the 9th Circuit. They will almost certainly, immediately, say “we already decided this issue” and therefore the ban in Arizona must end. Horne could then appeal that decision to the Supreme Court, and they will choose not to hear the case (as they have done in other cases already this year), and at that point gay marriage will move forward in Arizona.
Let’s be clear. Any lawyer worth their salt will tell you the same thing, and that is that by Thanksgiving, ALL County Clerks in ALL of Arizona will be forced to issue marriage licenses to same sex couples. Maricopa County has already said they expect this to happen and are ready to start handing them out. So you better get ready for all those wedding invites to come flooding in!