Arizona same-sex marriage ban on thin ice as state awaits rulings in two cases


PHOENIX — The refusal by the U.S. Supreme Court to hear appeals from five states that want to block gay marriage will likely make it tougher for Arizona’s gay marriage ban to survive court challenges, legal experts said Monday.

ArizonaThe court said it would not consider appeals from Wisconsin, Indiana, Oklahoma, Utah and Virginia.

The decision implies that the four conservative justices who support gay marriage bans believe they don’t have the votes to prevail, said Paul Bender, a constitutional law professor at the Arizona State University law school.

The lifting of stays in those five states means 30 states now allow gay marriage and suggests those fighting to uphold Arizona’s voter-approved ban face an even more lopsided fight.

“If things weren’t bad before, they’re certainly a lot worse now,” Bender said.

Two lawsuits in U.S. District Court challenging Arizona’s ban could be decided soon. And the 9th U.S. Circuit Court of Appeals that covers Arizona heard appeals from three other states last month in which judges sharply questioned lawyers defending the bans.

If the 9th Circuit finds same-sex marriage bans unconstitutional, Arizona’s prohibition would automatically fall.

Heather Macre, a lawyer on one of the Arizona cases, said the high court could still take a gay marriage case if one of several other federal appeals court takes a different stance. The Supreme Court is more likely to take cases where there are differing decisions from lower courts.

“They might just be waiting for that,” Macre said. “I would just say that we’re optimistic about our chances based on everything that’s been happening.”

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Arizona lawmakers approved a state law barring same-sex marriages in 1996, and the law was upheld by an Arizona appeals court seven years later. Voters in 2008 amended the Arizona Constitution to include the ban.

Aaron Baer, a spokesman for the Center for Arizona Policy, which pushed the state ban, said the Supreme Court decision backs the group’s argument that courts should stay out of the gay marriage debate.

“I think more than anything today’s indecision by the court just highlights the need for the courts to stay out of this and allow for the people to vote and decide their state’s definition of marriage,” Baer said.

Bender said the high court’s decision will resonate as more and more state bans are struck down.

“As days go by it becomes less and less likely that the bans are going to be upheld,” Bender said. “And I think the four conservatives on the court understand that and I view this as just raising the white flag.”

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