Shaun McKinnon

The Republic | azcentral.com

One of the central arguments in the gay-marriage lawsuits against Arizona is the question of how the ban came to be.

Plaintiffs outline a state intent on taking something away from gay Arizonans, through hearings, amendments and incremental changes that, the suits suggest, continued to restate the same law.

In its responses, the state of Arizona puts forth a different view.

The state's lawyers argue Arizona was never seeking to deny couples a right to marry. Instead, they say, the state had always defined marriage as a union between a man and a woman — later efforts were simply to ensure the original definition wouldn't change.

"If you look through the common law and the history of Arizona back to territorial days, marriage was a contract between a man and a woman," said Caleb Dalton, litigation counsel for Alliance Defending Freedom, a private group helping to defend the state in the case.

"That's been the understood definition of marriage," he said. "The recent laws that the plaintiffs have challenged didn't change anything. They merely reaffirmed that definition."

Although both lawsuits challenging Arizona's marriage laws named state and county officials as defendants, Attorney General Tom Horne hired the alliance to help argue the case and named its lawyers special assistant attorneys general.

Alliance Defending Freedom specializes in religious-freedom issues and has led the defense of marriage cases in Oklahoma and Virginia. Judges in both states have overturned marriage bans, but those rulings have been appealed.

Attorneys filed their final arguments in Arizona last week.

Alliance attorneys lay out the state's case against the lawsuits point by point:

• The state regulates marriage for the primary purpose of protecting relationships that would produce children and let those children grow up with a biological mother and father.

Dalton said marriage laws are meant to ensure a stable environment exists for children and aren't based on any sort of ill will toward gay people.

• Redefining marriage would cast doubt on the value of a mother and a father raising children, the alliance said, which undermines the state's interest in promoting stable homes.

"You have to start with the foundation that a biological mother and father is the ideal situation for every child to grow up in," Dalton said. "We know that doesn't occur in every situation, but that's the ideal."

• Changing marriage laws would weaken the institution rather than strengthen it.

In earlier documents, lawyers offered evidence they say suggests redefining marriage would lead to fewer men and women marrying each other and greater instability in existing marriages.

Included were statistics showing that in five states where same-sex marriage had become legal, overall marriage rates had dropped from 2010 to 2011 and the divorce rate in one state, Massachusetts, had risen sharply.

If the court rules in favor of the couples, the alliance has asked the court to stay its decision immediately to allow the state to appeal.