An Arizona state appellate court on Wednesday dealt a setback to gay rights advocates, upholding the constitutionality of Arizona's ban on same-sex marriages. "Although many traditional views of homosexuality have been recast over time in our state and nation, the choice to marry a same-sex partner has not taken sufficient root to achieve constitutional protection as a fundamental right," Judge Ann A. Scott Timmer wrote in the court of appeals ruling. Advocates on both sides of the issue said the ruling by a three-judge panel was the first nationally by an appellate court since the U.S. Supreme Court's June 26 ruling in a Texas case that struck down bans on gay sex.
The court of appeals rejected the argument, made on behalf of a Phoenix gay couple, that the ruling in the Texas case established same-sex marriage as a fundamental right. "This court does not dispute that a homosexual person's choice of life partner is an intimate and important decision," Timmer wrote. "However, not all important decisions sounding in personal autonomy are protected fundamental rights." Arizona laws prohibit marriages between people of the same sex and define a valid marriage as one between a man and a woman.
Harold Donald Standhardt and Tod Alan Keltner applied for a marriage license after the U.S. Supreme Court ruling was issued but were turned down. In their lawsuit they asked the court of appeals to overturn the state ban and to order a court clerk to give them a marriage license. The couple's lawyer, Michael Ryan, said he anticipates an appeal to the Arizona supreme court but that he needed to consult his clients before making a final decision. "It was disappointing, obviously," Ryan said of the ruling. "They at least acknowledged the dignity of same-sex couples, but I don't like their reasoning and think it's wrong."
The couple argued that marriage is a fundamental right and that prohibiting it for same-sex couples violates constitutional protections for due process of law under both the federal and state constitutions and privacy under the Arizona constitution.
Because Arizona's prohibition on same-sex marriage "rationally furthers a legitimate state interest" by encouraging procreation and child-rearing within marriage, it does not deprive the gay couple of their constitutional rights, the ruling added. "Consequently, it is for the people of Arizona, through their elected representatives or by using the initiative process, rather than this court, to decide whether to permit same-sex marriages," Timmer wrote.
Benjamin W. Bull, chief counsel for the Alliance Defense Fund, hailed the Arizona ruling, saying it correctly found that the U.S. Supreme Court decision in June "didn't lay a glove" on the traditional institution of marriage. "All the pundits that screamed 'The sky is falling, the sky is falling' were wrong," said Bull, whose Scottsdale-based group filed a brief opposing the Arizona lawsuit.
Eleanor Eisenberg, executive director of the Arizona Civil Liberties Union, noted that courts in Massachusetts and New Jersey are considering similar cases. She predicted that the same-sex marriage issue will reach the U.S. Supreme Court. "The issue is going to be with us for a while," she said.