A state court is considering whether Arizona's ban on marriage for same-sex couples is a denial of a fundamental right or a reasonable attempt to protect children by promoting family. A three-judge panel heard arguments Tuesday and agreed to decide the challenge filed by two Phoenix men. Harold Donald Standhardt and Tod Alan Keltner want the court of appeals to overturn Arizona's same-sex marriage ban as unconstitutional and to order a court clerk to give them a marriage license. Michael S. Ryan, a lawyer representing Standhardt and Keltner, said it is unconstitutional for the state to deny legal protections to gay couples that it extends to heterosexual couples. "We're entitled to the same protections, the same benefits, and the same responsibilities as any other family," Ryan argued. Just because the state and federal constitutions do not explicitly say that same-sex marriage must be permitted does not mean there is no right for gay men and lesbians to marry, Ryan said. The constitutions' framers could not envision that some laws enacted during their times would be unacceptable later, Ryan said, citing overturned laws that banned interracial marriages. "As Americans we have the right to believe differently. They don't have the right to make their belief the law," Ryan said of social conservatives who want to keep the same-sex marriage ban.
Assistant Attorney General Kathleen Sweeney defended the ban as constitutional. "I don't think there is a fundamental right to same-sex marriage," she said. Sweeney said the state is trying to protect children and support procreation by limiting marriage to opposite-sex couples. In a "fundamental difference," only those couples can procreate, she said. An important purpose of the marriage laws is to encourage couples to avoid having children without a long-term commitment, Sweeney said. "They serve an important societal goal," she said of the laws. "They're not aimed at homosexuals." Because there is no fundamental right to same-sex marriage, the issue "really is something that should be left to the legislature to determine," she said.
During his rebuttal Ryan disputed Sweeney's argument that procreation is involved. There is nothing about recognizing same-sex marriages that would hinder opposite-sex couples, he said. Judge John Gemmill asked Ryan whether the court could overturn the ban but leave it up to the legislature to decide what law should replace it. The court cannot defer too much to lawmakers because the court has the obligation to remedy any constitutional violation it finds, Ryan responded. At the hearing's conclusion, presiding judge Ann Scott Timmer said the panel would rule as soon as possible. "We know it's an important decision," she said.