Alia Beard Rau

The Republic | azcentral.com

The U.S. Court of Appeals for the 9th Circuit will hear arguments today in three cases challenging restrictions on same-sex marriage.

And while none of the cases are from Arizona, the court's ruling on those cases will apply to the state.

The odds are stacked against an Arizona law that defines marriage as between only one man and one woman.

Arizona is among 31 states that prohibit same-sex couples from marrying.

Judges in more than a dozen of those states, including three federal appeals-court circuits, have struck down bans like Arizona's.

The 9th Circuit is widely considered the most liberal in the nation.

The three judges who were randomly selected to hear the cases today were all appointed by Democratic presidents and have previously weighed in on gay-rights issues.

It's "extremely likely" the court will rule in a way that strikes down Arizona's definition of marriage — and possibly within the next couple of weeks — said attorney Dan Barr, who is representing plaintiffs in one of two Arizona lawsuits challenging the marriage definition.

"I have a hard time seeing that this won't be a 3-0 opinion striking down the gay-marriage bans," he said. "I don't think Vegas would even allow people to place bets on it."

The Center for Arizona Policy, the conservative lobby group that has advocated in support of the marriage restrictions, is already looking past the 9th Circuit and is hanging its hopes on the U.S. Supreme Court.

"Regardless of what happens at the 9th Circuit, the Supreme Court is going to have to decide this sooner than later," said organization legal counsel Josh Kredit. "The prudent thing would be for the 9th Circuit to wait and see where the Supreme Court is going with this."

Lawsuits' background

The cases being heard today were filed in Hawaii, Idaho and Nevada.

The defenders of the state laws argue marriage is necessary to ensure a stable environment for children.

"A child's formative years are benefited by the presence of both a mother and a father," attorneys for the Coalition for the Protection of Marriage wrote in court filings in the Nevada case. "The man-woman marriage institution vindicates the child's interest in knowing and being raised by her own natural mother and father."

The plaintiffs in the cases are same-sex couples, many with children.

Their court filings argue that states' restrictions unconstitutionally prohibit them from marrying and negatively affect their families.

"Although no one else's children are harmed by allowing same-sex couples to marry, the marriage ban hurts same-sex couples' children immeasurably," write the Nevada plaintiffs' attorneys in court briefs.

Arizona's statute and state Constitution amendment defining marriage are nearly identical to Nevada's.

Two lawsuits have been filed in Arizona but have not advanced to the appeals-court level. Both are in U.S. District Court.

U.S. District Judge John Sedwick could rule at any time in Connolly vs. Roche, the first of the two Arizona lawsuits, although at this point many expect he will wait for the 9th Circuit opinion.

The second Arizona case, Majors vs. Horne, is also before Sedwick, but the parties have until late October to file arguments.

As with the lawsuits from other states, the Arizona cases charge that Arizona's definition of marriage violates equal-protection and due-process rights guaranteed by the U.S. Constitution's 14th Amendment.

Arizona's definition of marriage 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 in 2008.

Judges in spotlight

Arizona is one of nine states under the 9th Circuit.

The court's rulings apply to all nine states, unless they are intentionally narrowed to apply to only a single state or case.

The ruling on the marriage cases is expected to be broad.

And based on the selected judge panel, it is expected to deem states' marriage restrictions unconstitutional.

"The 9th Circuit ruling will likely directly affect our laws," Kredit said.

Judge Stephen Reinhardt was nominated by President Jimmy Carter and wrote the opinion on California's Proposition 8 case that ruled California's marriage ban unconstitutional in 2012. He also wrote the opinion on a case that said jurors can't be discriminated against based on sexual orientation.

Judge Marsha Berzon was nominated by President Bill Clinton. She joined Reinhardt's opinion in the juror-discrimination case.

Judge Ronald Gould was also nominated by Clinton and wrote an opinion in a case challenging the military "don't ask, don't tell" rules that said a military discharge under the rule requires a higher burden of proof, making it a tougher fight for the law defendants. The lawsuit later led to a ruling that the plaintiff's discharge was unconstitutional.

"Not only given their viewpoints, but you can see it in the opinions they've already written," Barr said. "You don't have to guess here what they're going to do."

Arguments begin today at 1 p.m. and are expected to last about two hours, with each side in each of the three cases getting time to make their arguments.

The hearing will be aired live online on the 9th Circuit website.

At the appeals-court level, the judges often interrupt attorneys to ask questions — and occasionally offer their opinions.

The line of questioning can give an indication as to where the judges may be leaning, but just as often they will play devil's advocate and take an opposite tactic.

"Judges Reinhardt and Berzon are two of the more active questioners on the 9th Circuit, and I expect you'll hear a lot from them," Barr said. "Judge Reinhardt is going to know people are watching. He's going to dominate the argument."

Kredit said the panel's questioning will likely focus on what legal standard should be applied — the "strict scrutiny" standard or the lower threshold of "rational basis."

Strict scrutiny requires a compelling government interest, that it be narrowly tailored and that it be the least restrictive means of regulation.

Rational basis requires only that the regulation be a rational response to a legitimate government concern.

"Government almost never wins with strict scrutiny," Kredit said. "The burden there is heavily on the government."

Recent rulings

Legal insiders say they expect a ruling to come quickly.

The expected arguments are the same ones that have been made around the country over the past year, and there are numerous rulings from other justices to model an opinion after.

Out of more than two dozen judges who have weighed in against marriage restrictions over the past year, only a Louisiana federal court judge has upheld a ban.

"I would be very surprised if the 9th Circuit does not have an opinion come out within two weeks," Barr said. "They're all just looking at each other at this point."

The 10th U.S. Circuit Court of Appeals was the first appeals court to decide the issue, striking down Utah and Oklahoma laws.

The 4th Circuit was next, overturning Virginia's ban.

The 7th Circuit, which covers Illinois, Indiana and Wisconsin, was the most recent to rule, issuing a unanimous opinion Thursday, nine days after hearing arguments, declaring Wisconsin and Indiana's marriage restrictions unconstitutional.

Justice Richard Posner, who was appointed by President Ronald Reagan, wrote the sarcasm-filled opinion, saying the cases are about the welfare of children, but not in the way the states argue.

"The only rationale that the states put forth with any conviction — that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended — is so full of holes that it cannot be taken seriously," Posner wrote. "If channeling procreative sex into marriage were the only reason that Indiana recognizes marriage, the state would not allow an infertile person to marry."

It also, he argued, would not allow first cousins past child-bearing age to marry. Arizona has a similar law, allowing first cousins to marry only if they are age 65 or older.

He then goes on to further mock the states' arguments.

"Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry," he wrote. "Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure."

Supreme Court may act

Regardless of when Sedwick or the 9th Circuit rule, an opinion deeming Arizona's law unconstitutional is not expected to result in couples being able to marry immediately.

"The issue becomes whether they will stay the opinion while it's being appealed," Barr said.

Arizona's attorneys have already asked Sedwick, if he rules the law unconstitutional, to stay or halt the decision from going into effect while the state appeals the case to the 9th Circuit.

The plaintiffs have asked the court to overturn the law immediately, allowing same-sex couples to begin seeking marriage licenses.

In most states recently, federal and appeals-court judges — and in Virginia and Utah's cases, the U.S. Supreme Court — have halted rulings from going into effect while the cases move through the appeals process.

Kredit said he sees that as a sign the high court will take the cases, and may rule to allow the laws to remain in effect.

"The Supreme Court is saying you can't ram these through," he said. "I don't know if that's tipping their hand one way or the other, but if they wanted to allow this to happen, they could have."

If the 9th Circuit overturns the laws of states under its jurisdiction, Kredit said he expects the Supreme Court to again issue an emergency halt to the ruling going into effect while it is appealed.

Then, the next and final battleground is the Supreme Court.

Plaintiffs in cases out of Utah, Oklahoma and Virginia have already asked the high court to hear them.

The justices could decide by mid-October whether the Supreme Court will take one of those cases.

If it does, arguments could be held by early next year with a ruling next summer.