Alia Beard Rau

The Republic | azcentral.com

Federal courts in more than a dozen states have overturned restrictions on same-sex couples marrying over the past year.

A U.S. District Court judge could rule at any time on the first of two Arizona cases challenging its marriage restriction.

The 9th Circuit Court of Appeals later this year could also issue an opinion that impacts Arizona.

The future of marriage for same-sex couples in Arizona rests in a judge's hands, with a decision possible anytime.

But before there's any final resolution on the issue that some call the nation's latest civil-rights battle, Arizonans will face a months-long roller coaster of court filings, hearings and rulings.

Nineteen states allow same-sex couples to marry, eight of those because of court rulings. There are lawsuits in all 31 states that still have bans.

The pending ruling in Connolly vs. Roche, the first of two Arizona lawsuits challenging the state's definition of marriage as only between one man and one woman, will become one of more than a dozen issued in federal District Courts over the past year.

Judges have ruled in favor of allowing same-sex couples to marry in all the other cases.

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

Both cases charge that Arizona's statute and the state's Constitution defining marriage violate equal-protection and due-process rights guaranteed by the U.S. Constitution's 14th Amendment.

"Arizona cannot divide people into two groups on a question like marriage," said Shawn Aiken, the attorney representing the couples in the Connolly case. "You can't give it to one group and take it away from another, not on such a fundamental right."

The Christian legal organization Alliance Defending Freedom is overseeing the defense of Arizona's definition in the two cases and is helping to defend laws in other states, as well.

"States have said the right to marry means a man and a woman coming together to form and raise the children that result from their union," attorney Caleb Dalton said. "The state has good reasons for continuing to affirm giving children the right to know who their mother and their father are and to benefit from the unique things that mothers and fathers both have to offer their children."

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.

Dalton said the definition in local law goes back to Arizona's territorial days. He said the federal government has no authority to tell states what to do in this matter.

"States can't regulate away any constitutional rights," he said. "But it's always been the presumption that any regulation by the state of domestic relations is within its broader regulatory power."

Higher courts rule

Regardless of how — and when — U.S. District Judge John Sedwick rules in the Arizona cases, the real battleground is in the nation's 13 appeals courts.

The 10th U.S. Circuit Court of Appeals was the first and so far the only one to decide the issue, striking down Utah and Oklahoma laws prohibiting same-sex couples from marrying.

The 9th Circuit, which hears cases originating in Arizona and eight other Western states, will hear arguments Sept. 8 in cases from Nevada and Idaho. The opinions in those cases, which could come late in the year, will likely apply to Arizona and overrule any Arizona District Court opinions.

Sedwick could issue his ruling at any time, since final arguments in the case were filed Monday.Or he could wait for a 9th Circuit ruling and base his opinions on the higher court's decision.

Paul Eckstein, attorney for the same-sex couples in the Majors case, said he thinks Sedwick will rule sooner rather than later.

"Everyone seems to think it's coming," he said. "I think he could decide Connolly by the end of August."

Some legal insiders have predicted a decision in a matter of days, which would be unusual for a case of this magnitude.

Dalton disagrees.

"I wouldn't be surprised if ... Sedwick sits on this one for a while while the 9th is considering those similar marriage laws," Dalton said. "Those would likely control, or at least have a persuasive effect, on Sedwick's opinions."

The next — and final — battleground is the U.S. Supreme Court.

Utah and Oklahoma are expected to appeal to the high court soon. Justices could decide early this fall, likely even before the 9th Circuit weighs in, whether the Supreme Court will take one of those cases. If it does, arguments could be held this fall or early next year with a ruling next summer.

Dalton said it is likely the Supreme Court will take the Utah case.

"It's a divisive public-policy issue and something that will probably divide the court, as well," he said.

Eckstein said the Supreme Court could wait and take several different marriage cases at one time.

"It's conceivable that a case from Arizona will get to the Supreme Court," he said. "There are other cases further along ... but they may want to take one from different circuits."

He said the high court is not immune to public opinion on social issues and predicts a decision legalizing marriage nationwide for same-sex couples.

"There has been a major legal earthquake on this issue," Eckstein said. "We are getting pretty close to half the states either have held bans unconstitutional or have allowed same-sex marriage by statute or constitution.

"I would think the most likely outcome today would be a 6-3 opinion finding bans on same-sex marriage unconstitutional."

A long wait for results

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.

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.

"It's in the judge's hands," Aiken said. "We expect him to rule one way or the other in whatever order he gives us. We shouldn't have the chaos we've had in some other states" where states were required to issue licenses for several days before opponents could seek a stay.

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

Federal courts in Idaho, Indiana, Kentucky, Michigan, Oklahoma, Oregon, Pennsylvania, Texas, Utah, Virginia and Wisconsinhave ruled in favor of same-sex couples marrying, as have state courts in Arkansas, Colorado, Florida and Texas.

All the rulings have been halted from going into effect while they are appealed, except in Oregon and Pennsylvania, where the states did not appeal the rulings.

"I would speculate that all proceedings would be stayed pending the outcome of the Supreme Court," Dalton said. "That's consistent with the precedent set by the 10th Circuit in the Idaho case and consistent with the Supreme Court in the Utah case."

If and when same-sex couples are permitted to marry in Arizona, the Attorney General's Office would notify county Superior Court clerks of when to begin issuing licenses.

Aaron Nash, special counsel for the Maricopa County Superior Court Clerk's Office, said issuing such applications and licenses could start with relatively little notice. The office's in-house 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 said.

In the meantime, Aiken said, "we wait. My fingers are crossed."