PHOENIX (AP) — Monday, July 7, 2014, Lawyers for Arizona and a group of gay and lesbian couples who sued the state over its ban on same-sex marriage want a judge to decide the case without holding a full trial.
The attorneys told U.S. District Court Judge John W. Sedwick they believe he can instead rule based on arguments each side will file in the coming months. The lawyers are split on whether oral arguments are needed, with lawyers for Arizona saying none are necessary. Lawyers for the couples want oral arguments to be set for later this year.
The lawsuit filed by national gay-rights organization Lambda Legal on behalf of seven couples and two surviving spouses argues that the U.S. Constitution’s equal protection and due-process clauses are violated by the state law barring them from being married. The state of Arizona is fighting the lawsuit, which was filed in U.S. District Court in March.
A second lawsuit challenging Arizona’s ban is also working its way through the courts and assigned to Sedwick, who declined in April to merge the cases. The class-action lawsuit was filed by four same-sex couples in January. It is closer to being fully briefed and could be decided before the case filed by Lambda Legal. That case will be decided without holding a full trial, and there will be no oral arguments.
Arizona lawmakers approved a state law barring same-sex marriages in 1996, and the law was upheld by an Arizona appeals court seven years later. Voters in 2008 amended the Arizona Constitution to include the ban.
The schedule proposed by the attorneys in the Lambda lawsuit means the case would be heard after the 9th U.S. Circuit Court of Appeals hears appeals from Idaho and Nevada in September on cases from those states. A federal judge struck down Idaho’s ban on same-sex marriage in May. Another federal judge upheld Nevada’s ban in 2012.
The 9th Circuit’s territory includes Arizona, and its decision would likely guide Sedwick’s decision in the case. Another federal appeals court has already upheld a lower-court ruling overturning a ban on gay marriage. The 10th Circuit Court of Appeals ruled last month that Utah’s gay marriage ban was unconstitutional. That case is expected to land at the U.S. Supreme Court, which last year struck down a key part of the Clinton-era federal Defense of Marriage Act.
Nineteen states permit gay marriages, and legal challenges against bans on the practice have been filed in all 31 states that prohibit it. Proponents have won in several states this year, with appeals pending from court decisions striking down the laws in 11 states, according to the National Conference of State Legislatures. Arizona and 19 other states have challenges pending.
In Monday’s filing, Lambda Legal attorneys and Arizona Solicitor General Robert Ellman proposed a schedule for hearing the Arizona case that includes a request for the judge to issue a ruling without a trial, a procedure called a summary judgment. They will brief Sedwick between now and late October, and they are asking him to set oral arguments as soon as possible after their legal briefs are filed.
If Sedwick follows the lead of many other federal judges that have heard gay marriage cases this year, Arizona’s ban could be gone by the New Year.
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ARIZONA STATE LAWS
2011 Arizona Revised Statutes
Title 25 Marital and Domestic Relations
Article 2 Validity of Marriage
AZ Rev Stat § 25-111 (1996 through 1st Reg Sess 50th Legis)
25-111. Requirement of license and solemnization; covenant marriages
A. A marriage shall not be contracted by agreement without a marriage ceremony.
B. A marriage contracted within this state is not valid unless all of the following occur:
1. A license is issued as provided in this title.
2. The marriage is solemnized by a person authorized by law to solemnize marriages or by a person purporting to act in such capacity and believed in good faith by at least one of the parties to be so authorized.
3. The marriage is solemnized before the expiration of the marriage license.
C. The requirements of this section do not apply to the conversion of an existing marriage that is valid in this state to a covenant marriage that complies with the requirements of section 25-902
Article 3 Marriage License, Ceremony and Record
AZ Rev Stat § 25-123 (1996 through 1st Reg Sess 50th Legis)
25-123. Recording licenses; endorsement of solemnization; recording return; lost licenses
A. The clerk of the superior court shall maintain a record of all marriage licenses issued.
B. The person solemnizing the rites of matrimony shall endorse the act of solemnization on the license and shall return the license to the clerk within thirty days after the solemnization. The returned marriage license shall be recorded by the clerk.
C. If a marriage license is lost before the endorsement of solemnization, the persons who wish to marry shall reapply to the clerk for a marriage license pursuant to section 25-121 and pay a fee pursuant to section 12-284.
D. If the license that bears the endorsement of solemnization is lost, the clerk shall issue a replacement license that must be signed by the person who solemnized the marriage, the persons married and two of the witnesses to the marriage ceremony. The signed replacement license shall be returned to the clerk who shall record the license. If the persons married are unable to obtain all of the required signatures, either of them or their representative may apply to the superior court for an order to authorize the issuance of a duplicate endorsed marriage license. The application shall be by a sworn statement that describes the circumstances of the marriage ceremony and that contains the notarized signatures of the applicant and, if possible, both persons married, the person who solemnized the marriage and at least two witnesses to the marriage ceremony. If the application is submitted by a representative, the court shall determine if the representative is an appropriate requesting party. Pursuant to a court order, the clerk shall issue and record a duplicate endorsed marriage license. The court shall not charge a fee for the application or for issuing or recording the duplicate endorsed marriage license.
AZ Rev Stat § 25-124 (1996 through 1st Reg Sess 50th Legis)
25-124. Persons authorized to perform marriage ceremony; definition
A. The following are authorized to solemnize marriages between persons who are authorized to marry:
1. Duly licensed or ordained clergymen.
2. Judges of courts of record.
3. Municipal court judges.
4. Justices of the peace.
5. Justices of the United States supreme court.
6. Judges of courts of appeals, district courts and courts that are created by an act of Congress if the judges are entitled to hold office during good behavior.
7. Bankruptcy court and tax court judges.
8. United States magistrate judges.
9. Judges of the Arizona court of military appeals.
B. For the purposes of this section, “licensed or ordained clergymen” includes ministers, elders or other persons who by the customs, rules and regulations of a religious society or sect are authorized or permitted to solemnize marriages or to officiate at marriage ceremonies.
AZ Rev Stat § 25-125 (1996 through 1st Reg Sess 50th Legis)
25-125. Marriage ceremony; official; witnesses; marriage license; covenant marriages
A. A valid marriage is contracted by a male person and a female person with a proper marriage license who participate in a ceremony conducted by and in the presence of a person who is authorized to solemnize marriages and at which at least two witnesses who are at least eighteen years of age participate.
B. A marriage license shall be signed by both persons married, two of the witnesses to the marriage ceremony and the person who solemnized the marriage, who shall return the signed marriage license to the clerk of the superior court for recording.
C. This section does not apply to the conversion of an existing marriage that is valid in this state to a covenant marriage that complies with the requirements of section 25-902.
AZ Rev Stat § 25-128 (1996 through 1st Reg Sess 50th Legis)
25-128. Unlawful acts of person authorized to solemnize marriages; classification
A. It is unlawful for any person who is authorized to solemnize marriages to:
1. Knowingly participate in or by his presence sanction the marriage of a person under the age of eighteen years who obtained a marriage license without consent in writing of the parent or guardian lawfully entitled to give consent.
2. Solemnize a marriage without first being presented with a marriage license as required by the laws of this state.
3. Fail to file the marriage license with the act of solemnization endorsed on the marriage license within thirty days of the ceremony.
4. Knowingly make a false return of a marriage or pretended marriage to the clerk of the superior court.
B. A violation of this section is a class 2 misdemeanor.