Arizona weighs impact of Supreme Court marriage ruling

The Arizona Republic

The U.S. Supreme Court has ruled in a 5-4 opinion that all states must grant same-sex couples the right to marry. But that ruling won't end the debate over the rights of same-sex couples.


In Arizona, where same-sex unions have been legal since late last year, the battle has turned to more than a thousand state statutes that still define marriage as between a man and a woman, from adoption to taxes to property rights.


The high court heard arguments in lawsuits from four states with bans similar to Arizona's. The ruling applies nationwide. Arizona defined marriage as only between one man and one woman, but an October appeals court ruling in a lawsuit challenging the definition led to Arizona becoming the 31st state to allow same-sex couples to marry.


The Supreme Court's ruling comes as no surprise. Legal insiders widely predicted the justices, in a split decision, would require all states to recognize the marriages of same-sex couples.


During a visit to Arizona a few weeks before the ruling, plaintiff Jim Obergefell of Cincinnati said he was confident in the outcome, but still never thought the day would come.


"We never expected to say 'I do' and have those words and promises carry a legal weight," he said of his husband John Arthur, who died from ALS in 2013. "But marriage is not the end of our battle for equality. Far from it."


In Arizona, the adoption issue came to a head in April when Republican Gov. Doug Ducey ordered the state Department of Child Safety to immediately resume issuing adoption and foster-care licenses to legally married same-sex couples. The agency had halted the practice based on legal advice from Republican Attorney General Mark Brnovich.


Maricopa County Attorney Bill Montgomery, also a Republican, continues to refuse to provide adoption services to married same-sex couples, and the American Civil Liberties Union of Arizona has notified him of their intent to sue.


Brnovich, Montgomery and the powerful religious lobby group the Center for Arizona Policy all have argued that the court ruling on marriage doesn't automatically apply to other statutes. Arizona law does not use the broader word spouse in some of its adoption statutes, instead stating that "A husband and wife may jointly adopt children."


Changing statutes such as this one, they've said, requires either individual legislation or additional lawsuits and court rulings.


Arizona law also currently states that, all other things being equal, a "married man and woman" should be selected first in adoption situations. Community property statutes address the rights of a "husband and wife."


There are groups already looking at pushing for changes to wording in state law to ensure married same-sex couples have all of the same rights as married opposite-sex couples. Democrats this session introduced legislation to change the wording in the adoption statutes, but Republican leadership killed the bills without allowing any votes or public hearings.


Beyond that, Arizona groups are in the early stages of a push to add sexual orientation and gender identity to existing categories such as race, religion, gender and disability protected under state discrimination laws. Thirty other states have such discrimination protections, which can be applied to employment and housing.


A handful of cities, including Tucson, Flagstaff, Phoenix and Tempe have written such protections into their city ordinances.


"But 63 percent of the Arizona population does not live in cities that have LGBT nondiscrimination protections," said Fred Sainz, Human Rights Campaign vice president for communications and marketing. "Marriage equality won't stop someone from getting married at 10 a.m., posting their photos on Facebook and then getting fired."


Phoenix Mayor Greg Stanton has said he supports statewide nondiscrimination protections as the next step.


"This decision, although historic, will not end the fight for equality," Stanton said of the Supreme Court ruling at a recent news conference. "We must keep the momentum going. I hope the governor and legislature are listening and get it done statewide."


Arizona Technology Council President and CEO Steve Zylstra has also said he supports statewide protection, saying it would help bring new businesses to the state.


"From a personal and business perspective, nondiscrimination just makes sense," he said during a recent news conference. "The fact that you can still be legally fired, denied housing or refused services for being gay or transgender is working against us all."


Angela Hughey with One Community, a coalition of businesses that support the LGBT community, said her organization is working at the local level to pass nondiscrimination ordinances. Mesa, Scottsdale and Glendale are all in various stages of considering ordinances.


They are also focusing on education, she said, mentioning a survey that showed a majority of Arizona erroneously believe the state already has such protections on the books.


"We have to go out and re-educate people that we don't have totally inclusive protections, but we should," she said. "We (Arizona) have done some things over the years to earn a reputation of not being the most tolerant and welcoming state. This is an opportunity for Arizona to re-brand itself."


The Center for Arizona Policy and other groups are likely working on legislation of their own.


Utah state Sen. Mike Lee had said he would introduce legislation similar to Arizona's failed religious rights bill Senate Bill 1062 that would prohibit the federal government from "discriminating" against faith-based institutions. For example, some have voiced fears that the Internal Revenue Service could revoke the tax-exempt status of religious schools that refuse to hire a teacher who supports allowing same-sex couples to marry.


Former Republican Gov. Jan Brewer in 2014 vetoed SB 1062 under pressure from corporate America, including the NFL, and civil-rights groups as well as the gay, lesbian, bisexual and transgender community. SB 1062 would have offered a legal defense for individuals and businesses facing discrimination lawsuits if they proved they had acted on a "sincerely held religious belief."


Opponents argued it would legalize discrimination, in particular, allowing businesses to refuse to serve the lesbian, gay, bisexual and transgender community.


The Center for Arizona Policy was behind the bill. It did not introduce such a measure during this year's legislative session.