A federal judge in Phoenix has taken an initial step toward allowing same-sex marriage in that state, indicating that he is likely to strike down the state’s ban when he rules on it soon. Senior U.S. District Judge John W. Sedwick, overseeing two cases involving some fifteen gay and lesbian couples, ruled Friday on only one part of that case, but left little doubt where his overall review was heading.

In his fourteen-page order, he ruled that state officials must treat a gay couple as having been married when one of the partners died this summer. Thus, the death certificate must show that they were married at that time, according to the decision. In the course of that ruling, though, the judge offered a range of observations that seem sure to doom Arizona’s ban when he does confront that issue directly.

Judge Sedwick, who usually sits in Anchorage, Alaska, but is doing temporary duty to handle civil cases in Phoenix, cited a string of other federal court rulings striking down state prohibitions on same -sex marriage, and he commented on “the absence of any persuasive case law to the contrary.” He then added that the surviving partner in this case “is likely to prevail” in his challenge before the judge.

Because that claim is part of a broader case before the judge, involving one lawsuit filed in January and a separate case filed in March and proceeding jointly before him, his remarks were a strong indication that a 2008 state constitutional amendment and two state laws against same-sex marriage probably are going to be nullified.

In that ultimate decision, Arizona’s prohibitions on both same-sex marriages and the recognition of existing same-sex marriages will have to pass a more demanding constitutional test — “heightened scrutiny” — and not the more tolerant “rational basis” test. Because Arizona is located in the Ninth Circuit, and the court of appeals for that area has ruled that gay rights cases are now to be judged by that standard, Judge Sedwick is bound to use the tougher test. In fact, he mentioned that precedent in his ruling and turned aside a claim by the state that it does not apply.

Although Arizona now does have a complete ban on same-sex marriage, the state did make history on the other side of that controversy in 2006, when its voters turned down a state constitutional amendment to impose a ban (“Proposition 107”), rejecting it by a margin of fifty-two to forty-eight percent. It was the first state to reject such an amendment in a wave of such enactments beginning in 2004 and ultimately reaching more than thirty states. Those were passed partly in response to a Massachusetts state court ruling in 2003, the first to protect same-sex marriage under a state constitution.

However, in 2008, the Arizona legislature put the issue to the state’s voters again, in “Proposition 102,” and this time they approved the ban, by a margin of fifty-six to forty-four percent. State statutes passed in 1996 and 1999 had previously created such a ban, but the voter-approved amendment strengthened it.

If Judge Sedwick does strike down the Arizona measures, any appeal by the state would go to the U.S. Court of Appeals for the Ninth Circuit. Last week, that court heard cases involving challenges to similar bans in Idaho and Nevada, along with a lingering case from Hawaii, although that state’s legislature has now voted to allow such marriages.

That is the same appeals court that earlier had struck down California’s ban, enacted in “Proposition 8.” The Supreme Court heard oral arguments in that case last year, but it ultimately issued a procedural ruling that had the legal effect of finalizing the earlier rejection of “Proposition 8” by a federal district judge in San Francisco. The issue is thus now settled in California.

Rulings are awaited not only in the Ninth Circuit, but also in the Sixth Circuit, which held a prolonged hearing last month on cases from the four states in its region: Kentucky, Michigan, Ohio and Tennessee.

The Supreme Court is scheduled to consider the first round of appeals on this issue at its next private Conference, on September 29. It has before it cases from Indiana, Oklahoma, Virginia, Wisconsin, and Utah.

Recommended Citation: Lyle Denniston, Arizona same-sex marriage ban likely to fall, SCOTUSblog (Sep. 14, 2014, 8:03 AM), https://www.scotusblog.com/2014/09/arizona-same-sex-marriage-ban-likely-to-fall/