Alia Beard Rau

The Republic | azcentral.com

Lawsuit claims Arizona statute and the state%27s constitution violate federal equal protection laws

This is the second lawsuit challenging Arizona%27s ban on same-sex marriage this year

Gay-rights advocates are attacking Arizona's voter-approved ban on marriage for same-sex couples on multiple fronts. Following the resounding rejection last month of Senate Bill 1062, they believe the state is ready to move in a new direction.

Seven Arizona same-sex couples and the surviving spouses of two others on Thursday filed a federal lawsuit challenging Arizona's ban. This lawsuit, organized by the national gay-rights organization Lambda Legal and Phoenix-based law firm Perkins Coie, follows a similar legal challenge four other Arizona couples filed in January.

The lawsuits claim Arizona's statute and the state's Constitution, both of which define marriage as between one man and one woman, violate equal-protection and due-process rights guaranteed by the U.S. Constitution's 14th Amendment.

"We are asking the state they love and call home to end the discrimination against them and their families," Lambda Legal senior counsel Jennifer Pizer said. "Our clients deserve to be treated equally by the government to which they pay taxes."

At the same time, Equality Arizona and other state advocacy groups have introduced the Why Marriage Matters Arizona campaign. The goal is to begin building public support for a possible 2016 ballot measure seeking marriage rights for same-sex couples in Arizona.

"The work is all very synergistic," Pizer said. "We are all trying to help move the state forward."

The synergy goes beyond Arizona. There are more than two dozen lawsuits challenging restrictions on marriage for same-sex couples across the country, some of which could impact Arizona as well. A 9th U.S. Circuit Court of Appeals opinion on Lambda Legal's case against Nevada's law could apply to Arizona if it's written broadly. The Appeals Court is expected to hear arguments in that case this summer.

The goal of these cases is to push at least one of them up to the U.S. Supreme Court in hopes of a ruling that would apply uniformly to all the states.

"Most folks watching the issue anticipate within a couple of years the Supreme Court will be asked again to recognize same-sex couples," Pizer said. "This Arizona case is part of the national landscape."

Cathi Herrod, president of the Christian-based advocacy group Center for Arizona Policy, led the effort to define marriage in Arizona as between one man and one woman. She said this issue doesn't belong in the courts.

"The definition of marriage was decided by Arizona voters in 2008 and it should be an issue decided by the public," she said. "We will continue to defend marriage."

Herrod said she doesn't believe the majority of the public supports allowing same-sex couples to marry, as some would have the public believe.

"Our challenge now is to make the case for why marriage should continue to be defined as between one man and one woman," she said. "Social-science data continues to show strong evidence that marriage between a man and a woman is the best structure for men, women and children. Marriage has been the building block of our society and that hasn't changed."

Arizona Attorney General Tom Horne has filed legal documents defending Arizona's position in the lawsuit filed in January and denying that Arizona's regulations violate the 14th Amendment.

In the court filings, Horne said the U.S. Supreme Court has clearly given individual states the power to define marriage as each sees fit. He denies that the U.S. Constitution establishes any right to marriage for same-sex couples.

Paul Bender, professor of law at Arizona State University's Sandra Day O'Connor College of Law and a constitutional law expert, said the 14th Amendment doesn't spell out any protections for same-sex couples. As a result, he said, it will be up to the courts to resolve.

"You are definitely cutting new ground," he said. "The courts have been reluctant to formalize the way it is going to treat sexual-orientation classifications. They haven't settled on what the rules of the game are."

Bender predicts the longer it takes for the case to get to the high court, the more likely it is the court will deem state laws banning marriage for same-sex couples unconstitutional.

"The Supreme Court is not insulated completely from public opinion and as public opinion changes, it affects the court," he said.

The plaintiffs in Thursday's lawsuit

said they hope to successfully make the opposite case.

Scottsdale couple Nelda Majors and Karen Bailey, who met in college and have been together for 56 years, are the lead plaintiffs in the case. They spent decades pretending in public to be simply best friends, creating imaginary boyfriends and never speaking even to their families about their true relationship.

"After more than five decades of life together, we want the opportunity to show our love as couples do, through marriage," said Majors, 75, in a soft Texas drawl. "It is unfair that I can't marry the one person I cherish most in this world."

Majors and Bailey have so far chosen not to marry in one of the states that allow them to wed.

"All we want is to express and celebrate our love and commitment through marriage before our family an friends right here in our home in Arizona," Majors said. "We will wait it out. We are praying every minute that this will be resolved in the right way."

In the meantime, they worry about what their lack of married status will mean as they age, particularly in terms of inheritance taxes and the right to make medical decisions for the other.

Plaintiff Patrick Ralph, 60, was with Gary Hurst for 39 years before Hurst died last summer. Ralph said his heart broke a second time when he discovered he would not be allowed to be listed as Hurst's husband on the Arizona death certificate even though the two had married in California in 2008.

"We were truly meant for each other," said Ralph, tearing up. "I want to do something to allow people like me to get at least a death certificate to honor their marriage. It's just so hard to deal with."

As he continues to mourn Hurst's loss, Ralph said he's now focusing his energy on the lawsuit.

"He would want me here and if he were here, he'd do it for me. He would love it," he said, smiling through tears. "Part of me feels that he knows. I want to finish this."

Kathy and Jessica Young were compelled to join the lawsuit out of concern for the future of their 7-year-old son. They married in New York and Arizona doesn't recognize Kathy as the boy's parent, only Jessica, who gave birth to him.

"Even though we are raising our son together, I don't have any legal rights to him," said Kathy, 41.

Jessica, 29, said they want the same rights as any other parents.

"Our family is like any other family," she said. "We have a dog. We go to the movies. I don't want to worry about what's going to happen to our son if something happens to me. It's a daily concern."