Supreme court same-sex marriage rulings keep status quo in Arizona -- at least for now - East Valley Tribune: Politics

Supreme court same-sex marriage rulings keep status quo in Arizona -- at least for now

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Posted: Wednesday, June 26, 2013 6:59 pm | Updated: 6:03 pm, Fri Jun 28, 2013.

The pair of Supreme Court rulings Wednesday on the issue of same-sex marriage gave gay Arizonans next to nothing -- even if they get legally married elsewhere.

In his opinion for the majority, Justice Anthony Kennedy explained why, from the court's perspective, it is illegal for the federal government to deny benefits to those who are legally wed according to the laws of their states.

"DOMA contrives to deprive some couples married under the laws of their states, but not other couples, of both rights and responsibilities,'' Kennedy wrote. "By creating two contradictory marriage regimes within the same state, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the state has found it proper to acknowledge and protect.''

And Kennedy said the federal government cannot ignore a state decision to allow same-sex marriages and instead treat those married couples as two singles for purposes of federal laws, ranging from bankruptcy protections to being buried together in a national cemetery.

But there's a caveat to what the court did.

"This opinion and its holdings are confined to those lawful marriages,'' Kennedy wrote.

Consider the issue of filing joint tax returns.

Bob Lind, who specializes in tax law, said gay couples who are legally married in another state now will be allowed to file joint returns there. In fact, he said they probably can go back and file amended returns, jointly, for the last three years.

But Lind said they will lose that privilege if they happen to move to Arizona. And Arizonans who travel somewhere else to wed and return here also will gain no federal tax benefits.

The key to Arizonans being locked out of most benefits of Wednesday's ruling is the 2008 voter-approved state constitutional amendment, said Lind. He is an "enrolled agent,'' someone who has been given the privilege of representing taxpayers before the IRS either by passing a comprehensive test or experience as a former IRS employee.

"Arizona has a law that says two people of the same gender can't be married,'' he said. Lind said that, regardless of what occurred legally elsewhere, their relationship remains illegal in the state.

Lind pointed out that the Supreme Court dealt only with one provision of DOMA: the issue of federal benefits. He said the court never addressed another section which spells out that states are not required to honor same-sex marriages performed in other states.

Changing that will require voter approval of an initiative being circulated to essentially repeal that 2008 amendment. It would redefine marriage as between any two persons.

Rebecca Wininger, president of Equality Arizona, said a few married gay couples could be helped. The key is whether what they are seeking is equal treatment for federal benefits.

For example, she said a couple could be legally married in New York. And then one of them, in the military, might be transferred to an air force base in Arizona.

Under Wednesday's ruling, she said, the partner of the military employee will be entitled to the same federal benefits as the spouse of any other person.

But Wininger, like Lind, said pretty much everything else remains off limits to Arizonans, even those who wed legally elsewhere.

"As far as the state of Arizona is concerned, there is no gay marriage,'' she said. "We're still second-class citizens.''

Gov. Jan Brewer said as far as she's concerned, the law in Arizona should remain the way it is. But Brewer was more circumspect when asked what would be so bad if gays were allowed to wed here.

"I think because of my faith, that plays a role,'' she said. "I believe that the Bible says marriage is between a man and a woman.''

More to the point, Brewer said that is the belief of the majority of Arizonans, as shown by that 2008 vote.

That's also the contention of Cathi Herrod, president of the Center for Arizona Policy which helped engineer that 2008 vote. But she acknowledged that the Supreme Court rulings on both DOMA and California's Proposition 8 will have an impact.

"It means that the public debate on marriage will continue,'' she said. Herrod said while she believes a majority of Arizonans still support the ban on same-sex nuptials, she recognizes the fight coming if backers of the initiative drive get the 259,213 valid signatures by July 2014 to put the issue on the general election ballot.

"Obviously, we're going to have a public debate in Arizona over why marriage matters and the definition of marriage,'' Herrod said. She said the Supreme Court, in saying this is an issue of states' rights, "enables the people to make that decision.''

Herrod also rejected the idea that gay marriage is inevitable.

"Communism fell, the Equal Rights Amendment did not pass,'' she said. "So to say same-sex marriage is inevitable ignores the lessons of history.''

The high court by its action -- or inaction -- may have left Arizonans who support gay rights with one small victory.

The justices, in issuing their last rulings of the session, left undisturbed a 9th Circuit Court of Appeals ruling which says Arizona cannot refuse to provide benefits to the domestic partners of gay state and university employees.

Attorney General Tom Horne had asked the high court to overturn that ruling. And while the justices had put the case on their schedule for discussion at least five different times, they never even agreed to let Horne make his case.

The court is set to issue a final set of orders Thursday. But the most that could happen is the justices could either put the issue off until next session, or send the case back for further review by the appellate court in light of their decision tossing out a key provision of the federal Defense of Marriage Act.

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