Thursday, May 27, 2004

AZ State Supreme Court Waves Off Chance to Consider Gay Marriage

A gay couple's appeal to the state Supreme Court of Arizona's ban on same-sex marriages has been rejected without comment. Mr. Standhardt and Mr. Keltner were denied a marriage license in Maricopa County, according to their original lawsuit, filed July 7.

The Court of Appeals held in October that there is no fundamental constitutional right to same-sex marriage under either the state or federal constitutions. The opinion of Division One Special Action panel of judges is available in pdf format online at http://www.cofad1.state.az.us/opinionfiles/SA/SA030150.pdf.

Petitioners had three bases for their appeal: homosexual marriage is a fundamental Constitutional right under the recent Supreme Court case Lawrence, the AZ Constitution’s enhanced privacy protections grant the right to same-sex unions, and the State lacks a rational basis upon which to base the policy of denying marriage rights to gays.

Petitioners relied on the Supreme Court’s language in Lawrence ("out laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.") for their contention that for homosexuals, as for straight people, marriage is a fundamental right.

Should a fundamental right be implicated by a government policy then the court will only uphold the measure upon finding that a compelling state interest is furthered and that the policy is narrowly tailored to achieve that interest. Application of strict scrutiny by a court seldom leaves a policy intact.

The appeals panel rejected use of strict scrutiny in this case for three reasons:

First, the appeals court found the Lawrence court specifically "[did] not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." In essence, the AZ courts have taken a significant step toward cabining the effect of Lawrence to sodomy laws by this ruling.

Secondly, the court viewed the language relied upon by the plaintiffs as acknowledging a homosexual person’s right to define his or her own existence, and enter a homosexual
relationship, but denied that such a right includes the choice to enter a state-sanctioned, same-sex marriage.

Third, and finally, language in Lawrence indicated that the Court did not consider sexual conduct between same-sex partners a fundamental right, instead applying, without explanation, the rational basis test.

The court next rejected outright the petitioners’ assertion that the right to same sex marriage is implied by the specific privacy provisions of the AZ Constitution. The court, finding no precedent and no logical connection, passed over the argument as if it were filler in the brief.

Finally, the court applies the rational basis test, looking for a permissible purpose and rational, though not necessarily perfect, relation between the policy and its purpose. The court found a rational basis for excluding homosexual couples from the institution of marriage: procreation. Because homosexual couples cannot reproduce, the court holds that government has a rational basis for excluding gays from marriage. The court acknowledges that homosexual couples can raise children, but because they cannot reproduce (a distinction looking for a technological contra-positive, such as double ova fetus, in my opinion) there is no reason for the state to sanction the marriage. The court recognized that not all opposite-sex partners can reproduce, but excuses the state from the need to determine their fitness to reproduce because it would be violative of couple’s privacy rights. This implies that if you volunteer your intent not reproduce, that even a straight couple could be denied a license to marry (Right.).

A rational basis test is often held by legal commentators to be essentially a method for courts to abdicate review without seeming to do so. In this case, however, the court bends over backwards to find a rational basis, twisting logic into a pretzel to get the desired result. Certainly, the state’s recognition of opposite-sex marriage can be rooted in a desire to promote procreation and family life as the court asserts. But gay marriage cannot simply be a shadow cast by straight marriage. The court asserts that the state’s lack of interest in sanctioning marriages between couples who are incapable of procreating provides a rational basis for exclusion. This argument is absurd.

The essential misdirection clouding the rational basis analysis of gay marriage is use of the reproductive, or any other, purpose of straight marriage. A creative jurist will always be able to find that the state has purposes in granting straight marriage that don’t apply to gays and thereby justify the exclusion of gays. But the state’s goal in granting licenses to straights is quite obviously not the same as the state’s goal in denying those same licenses to gays. The policy of denying licenses is not simply the flip-side of the policy of granting them. There must be an independent rational basis for the policy of denying licenses to gays, not just a rational basis in granting them to straights that doesn’t apply to gays.

The AZ appeals court, examining the nature of the right of marriage, wrote,

"[a]lthough Griswold and Loving described marriage as a personal right, neither case suggested that a state cannot infringe upon that right for social purposes, such as encouraging procreation and protecting children. Indeed, the Court recognized in Loving that "marriage is a social relation subject to the State’s police power."


The aspects of State police power are very broad and, of necessity, incompletely defined. However, the safety, welfare, health, and morals of the community are considered the broad outlines of police power. So, if we are trying to find an affirmative policy goal for excluding gays from marriage, where in the police power might such an independent rational basis be found? Safety, health, and welfare hold no promise. Forced to affirm the real reason for excluding gays from marriage, courts and States will invariably have to locate those reasons within the ambit of public morals. People have a moral objection to gay marriage for various reasons. That’s fine, but the courts must not skirt the truth and give an appearance of impartiality where there is none. Courts must be forced to acknowledge that the only rational basis upon which a state can base denial of gay marriage is public morals.

Politicians tend to acknowledge their moral misgivings openly, but judges hide behind the poor jurisprudence. This must end. If we are to have an open and honest debate about gay marriage, our courts cannot be allowed to hide behind sophistry, but must confront the real issues openly.

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