Alia Beard Rau and Yvonne Wingett Sanchez

The Republic | azcentral.com

The push toward allowing same-sex couples to marry in Arizona may be delayed, at least a few days.

U.S. Supreme Court Justice Anthony Kennedy Wednesday morning issued a temporary halt to Tuesday's ruling from the U.S. Court of Appeals for the 9th Circuit declaring marriage restrictions unconstitutional. Idaho sought the stay after indicating it will appeal the ruling before an expanded 11-member 9th Circuit panel and then likely to the Supreme Court.

The halt could be very temporary. Kennedy gave the plaintiffs until Thursday night to file a response, and then either he or the full Supreme Court could re-evaluate the situation.

The U.S. Court of Appeals for the 9th Circuit on Tuesday ruled the Idaho and Nevada bans violate couples' rights to equal protection under the 14th Amendment. Arizona is part of the San Francisco-based circuit, so the court's ruling will apply to this state as well.

"This makes a huge difference for our family," said Melanie Puskar- Blakely, 32, of Glendale. "It means our home — our native state where we were born and raised — respects us as individuals. Finally."

She and her partner, Tonya Blakely, are parents of four children. The couple married in California in 2008, but the union isn't recognized in Arizona. They had considered moving to California.

"The only reason we would have left eventually would be for same-sex rights," she said. "But if Arizona's going to join in, then there's no reason to go."

As news from the 9th Circuit on Tuesday, along with an earlier U.S. Supreme Court decision Monday, reshaped the legal landscape, Holly Mitchell and Suzanne Cummins were preparing to exchange vows of commitment at a ceremony on Saturday. The Chandler women, together seven years, set the date months ago and hoped for the best.

Mitchell and Cummins are among the seven couples who challenged Arizona's marriage laws in January as part of the first of two lawsuits still pending in court. They have waited anxiously for a ruling and hope the actions of the last two days portend the outcome they want.

"This is so exciting," Mitchell said Tuesday. "Depending on how fast this moves, we are ready to go."

They will apply for a license before Saturday's ceremony if the process is in place; if it isn't, they will count Saturday as their wedding day and attend to the legal details when they are able.

"We are so excited for the marriage movement," Cummins said.

Before Arizona county clerks begin issuing licenses, there are some legal hoops to jump through.

Attorney General Tom Horne has the authority to declare that the 9th Circuit ruling applies to Arizona and issue a letter to county clerks instructing them to start issuing licenses.

"It would be appropriate for Tom Horne to bring this to closure quickly," said Jennifer Pizer, senior counsel for the gay-rights advocacy organization Lambda Legal and an attorney representing same-sex couples in one of two Arizona lawsuits. "It doesn't serve the people of Arizona well to prolong litigation."

That's not expected to happen, at least not immediately.

Horne's spokeswoman, Stephanie Grisham, said it is "premature" for Horne to direct county clerks to issue marriage licenses to same-sex couples.

"It's not a done deal," Grisham said, adding that Nevada and Idaho can still appeal to an 11-judge panel of the 9th Circuit or the U.S. Supreme Court. "Today's 9th Circuit decision should not be treated as final."

She said the Attorney General's Office is reviewing the opinion "to accurately determine its implications for the pending Arizona cases."

Arizona's definition of marriage as only between one man and one woman was established in statute in 1996. The Arizona Court of Appeals in 2003 upheld that definition. Voters amended the Arizona Constitution to include the definition of marriage in 2008.

Two cases challenging Arizona's law are pending in federal court. U.S. District Court Judge John Sedwick had been expected to rule at any time on Connolly vs. Roche. The second Arizona case, Majors vs. Horne, is also before Sedwick.

Attorneys for plaintiffs in both cases said they will immediately file motions asking Sedwick to declare Arizona's law unconstitutional based on the 9th Circuit ruling.

"Obviously the 9th Circuit's opinion will be binding in Arizona, but we still need an order from our court for marriage licenses to be issued," said Heather Macre, an attorney representing same-sex couples in the Connolly case.

It's unknown how long it may take for Sedwick to issue his ruling.

"The judge's timeline is his own," Macre said. "We have to be respectful of that. I don't think we'll see licenses issued today or tomorrow."

Pizer agreed, speculating it could be done in a matter of weeks.

"Residents of Arizona can start planning their weddings and they probably can leave the date a bit flexible to give us a chance to tidy up the litigation, put a bow on it, put a cake topper on it," she said. "But it's wonderful news for Arizona residents who have been waiting an awfully long time."

The Christian legal organization Alliance Defending Freedom is overseeing the defense of Arizona's definition of marriage in the two cases. It deferred comments to Horne's office.

Gov. Jan Brewer declined to comment on the ruling.

Social issues, including marriage, have become a point of debate in the governor's race.

When asked for a comment, Republican Doug Ducey, who has said he supports "traditional marriage," said only "I'll follow the law."

Democrat Fred DuVal, who has supported same-sex couples marrying, said the change is "inevitable."

"This is the way the civil-rights story always goes," he said. "It is a struggle, then there becomes critical mass, then there is a movement … and things happen really fast and we're watching that play out."

Asked to speculate how the Republican-controlled state Legislature and conservative lobbying groups might react, DuVal said, "I know they will be resistant, but … the force of history will simply wash over them in time."

The conservative advocacy group the Center for Arizona policy has been an influential proponent of the state's current definition of marriage. Organization President Cathi Herrod admitted that the 9th Circuit ruling will have a "significant impact" on Arizona's law, but she has no intention of being washed over.

"It's doubtable we have much legal recourse, but the effort to restore marriage to its meaning as a timeless institution that's best for men, women and children will continue," she said.

She said the U.S. Supreme Court Roe vs. Wade ruling 40 years ago legalizing abortion was only the beginning of that fight, and predicted it would be the same for marriage.

"The Center for Arizona Policy will redouble our efforts to promote and defend marriage as between one man and one woman," she said, declining to comment on any legislation they may introduce next session. "The battle's far from over."

Arizona clerks say they are awaiting word from Horne.

The Maricopa County Clerk of the Superior Court, which issues marriage licenses, was reviewing the ruling Tuesday afternoon. The office had been researching how other states handled same-sex marriage applications and printed marriage licenses, said Chris Kelly, chief deputy clerk of the Superior Court.

"We have been preparing for the prospect that this would potentially to come down," Kelly said. "As soon as we get the word, we're prepared to adhere to the judge's ruling."

Aaron Nash, special counsel for the Maricopa County Superior Court Clerk's Office, has said issuing such applications and licenses could start with relatively little notice. The office's information-technology department would just need to change some language, such as including "spouse" as an option in addition to "bride" and "groom" or "husband" and "wife."

"Our procedure for issuing licenses would likely be the same or very similar as for opposite-sex couples," Nash has said.

The 9th Circuit is the fourth to rule on the issue of same-sex couples marrying. All have deemed laws banning such marriages unconstitutional.

The cases, including Arizona's two, have charged that Arizona's definition of marriage violates equal-protection and due-process rights guaranteed by the U.S. Constitution's 14th Amendment. Defendants have argued that marriage between only a man and a woman protects the stability of society and assures children are raised by both biological parents.

"Arizona should concede at this point that all the arguments they have raised have been considered by the 9th Circuit and rejected," Pizer said. "The state has nothing more or different to say and they should save Judge Sedwick and everybody else time and trouble and just acknowledge that."

Elizabeth Gill, senior staff attorney with the American Civil Liberties Union LGBT Project called Tuesday an amazing day for Arizona and other states, particularly coming on the heels of Monday's Supreme Court announcement that it would not take cases challenging five other state laws, opening the door for same-sex couples to immediately begin marrying in those states.

"There is an unstoppable legal momentum toward full marriage equality," she said.

Republic reporters Shaun McKinnon, Mary Jo Pitzl, Mariana Dale and Michelle Ye Hee Lee contributed to this article.

What's next?

The U.S. Court of Appeals for the 9th Circuit has overturned marriage bans for same-sex couples in Nevada and Idaho. Its ruling applies to Arizona, but there are some procedural steps before the state begins issuing licenses.

Attorney General Tom Horne could acknowledge the 9th Circuit opinion applies to Arizona, drop the legal defense of Arizona's law and immediately send letters requiring county clerks to begin issuing marriage licenses to same-sex couples.

The attorneys in the two federal cases challenging the Arizona definition of marriage are immediately filing motions asking Arizona U.S. District Court Judge John Sedwick to quickly rule the state's law unconstitutional based on the 9th Circuit opinion.

Sedwick could give the state time to file an argument against overturning the law based on the 9th Circuit opinion, or he could just issue an opinion overturning the law. This could happen within a matter of days or weeks.

The defendants in the Nevada and Idaho cases could ask the courts to keep their marriage laws in effect while they appeal to either an 11-judge panel of the 9th Circuit or the U.S. Supreme Court. Arizona could argue that its law be kept in place while this happens.

Once Horne deems the Arizona cases have concluded, he would issue letters notifying clerks of when they should begin issuing licenses.

The judges who ruled

All three 9th Circuit judges on the panel that knocked down the bans on same-sex marriage were appointed by presidents who were Democrats. A look at each judge:

Stephen Reinhardt: The 83-year-old authored the opinion. He was nominated for the 9th Circuit bench in 1979 by President Jimmy Carter. A native New Yorker and an Air Force veteran, he attended Pomona College and graduated from Yale Law School, and was practicing law in Los Angeles when he was appointed to the bench. Earlier this year, he served on a 9th Circuit panel with Judge Marsha Berzon that ruled that attorneys could not keep people off juries because of sexual orientation.

Marsha Berzon: Berzon, 69, originally from Cincinnati, was appointed to the 9th Circuit in 1999 by President Bill Clinton. She attended Radcliffe College and the school of law at the University of California-Berkeley, and was an attorney in private practice before becoming a law educator at Berkeley and Cornell University. In recent years, she has heard Arizona cases regarding lethal-injection drugs, abortion and Tucson shooter Jared Loughner.

Ronald Gould: Gould, 67, a native of St. Louis, was also appointed by President Clinton in 1999. He studied at the University of Pennsylvania and the University of Michigan School of Law, and had a private law practice in Seattle, where he also taught at the University of Washington.

— Michael Kiefer