Equal Protection in Arizona Same Sex Marriages – A Look at the Change in Case Law

Last week a judge struck down a same-sex marriage ban in Arizona on equal protection grounds.  The ban was created by both state law and a state constitutional amendment.  United States District Judge John Sedwick on Oct. 17, 2014 declared Ariz. Const. art. 30, § 1, Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) all violated federally protected constitutional rights.  Majors v. Horne, No. 14-cv-00518 (D. Ariz. Oct. 17, 2014) (the full opinion is available at the bottom of this article).

But this was not the first time the state laws were challenged (the Arizona Constitutional Amendment was not created at the time).  In 2003, the Arizona Court of Appeals unanimously found both Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) to be reasonable laws, and upheld them in the face of constitutional challenges. Standhardt v. Superior Court of Ariz.,77 P.3d 451 (Ariz. Ct. App. 2003) (holding Arizona’s statutory prohibition of same sex unions does not violate either the Arizona or United States Constitution). These are the same state laws Judge Sedwick ruled unconstitutional last week.

So what gives?  What has changed so much in the past eleven years to warrant a complete reversal in judicial ideology?  I am very happy for this civil rights victory for same sex couples.

How two unanimous courts could come to completely opposite viewpoints on the same set of laws, really interests me from a civil rights perspective.  I want to delve into this really interesting situation and see what happened.

Couple Gets Married After Waiting 23 Years @ Same Sex Marriage Legalized in Iowa

Photo credit: Alan C., Flickr

Majors v. Horne, 2:14-cv-00518 (D. Ariz. Oct. 17, 2014)

The district court found itself bound by Latta v. Otter, No. 13-cv-00482 (9th Cir. Oct. 7, 2014), issued about ten days prior.  The Ninth Circuit Court of Appeals made the decision really easy for Judge Sedwick to make declaration the challenged Arizona laws are unconstitutional (the opinion is only four pages).

The Latta decision paved the way for Majors to be decided as quickly and as forthright as it was.  Latta is not only is the decision a unanimous thirty-four page opinion that details how and why same sex marriage deserves equal protection under the Fourteenth Amendment.  But additionally, two of the three paneled judges, including Judge Reinhardt who penned the court’s opinion, wrote a separate concurrence stating additional reasons bans on same sex marriages are repugnant to the United States Constitution.

Because of the United States Supreme Court’s refusal to hear any challenges to state bans of same sex marriage and since Latta is so strongly worded, shortly after the opinion was announced Arizona Attorney General Tom Horne said that he would not appeal the decision because it would be a fruitless endeavor.  In explaining his reasoning he even mentioning the law is so clear now that a lawyer could possibly be sanctioned because the court may view it as a frivolous lawsuit.

In order to understand Majors, one really just needs to read Latta.

Latta combines appeals from both the states of Idaho and Nevada since both argued the same subject of the constitutionality of same sex marriage bans.  Plaintiffs challenging the laws argued the bans violated constitutional protections of due process and equal protection found in the Fourteenth Amendment.

Which level of scrutiny really set the tone for the case.  Each state argued the level of scrutiny should be the lowest level, or a rational basis.  They argued the laws are facially neutral and if there is discrimination that exists it is because of the laws effects and not the laws intent.

The court, relying on United States v. Windsor, 133 S. Ct. 2675 (2013), held that a heightened level of scrutiny applied.  The court, relying on a past case, determined “when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.” Latta v. Otter, No. 13-cv-00482, at *26 (9th Cir. Oct. 7, 2014).  Thus, the Ninth Circuit uses a heightened level of scrutiny when analyzing discrimination against sexual orientation.

We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they
afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.

Latta v. Otter, No. 13-cv-00482, at *6 (9th Cir. Oct. 7, 2014).

The Latta court wades through numerous arguments where the states assert each has a compelling interest to ban same sex marriage.  Numerous arguments are asserted by the states, and the court equally swats away each argument attacking both the reasoning and the legal merits.  The court appears that it wanted to leave no stone unturned for future courts considering equal protection claims on the basis of sexual orientation.

Judge Reinhardt wrote a separate concurrence (he also wrote the opinion of the court) to note in his opinion substantive due process is also impermissibly infringed.  Viewing marriage as a fundamental liberty, Judge Reinhardt notes each case the United States Supreme Court “considered the historical roots of—the general right of people to marry, rather than a narrower right defined in terms of those who sought the ability to exercise it.”  Id. at *46 (Reinhardt, J., concurring).  He cautions toward the end of his concurrence that a narrow reading of the United States Supreme Court cases on the freedom to marry would be limiting liberties to same sex couples, the same way the United States Supreme Court limited liberties to same sex couples in Bowers v. Hardwick, 478 U.S. 186, 190 (1986), which considered whether there was a “fundamental right to engage in homosexual sodomy.”  Latta, at *48 (Reinhardt, J., concurring).

Standhardt v. Superior Court of Ariz.,77 P.3d 451 (Ariz. Ct. App. 2003)

A three judge panel on the Arizona Court of Appeals unanimously found the state statutes prohibiting same sex marriage did not violate either state or federal constitutional protections.

The issue is essentially the same as in Majors and Latta.  Two Arizona men were denied a marriage license because of the two state statutes — the constitutional provision was not passed at the time of this appeal.

Standhardt was decided in the wake of the seminal case Lawrence v. Texas, 539 U.S. 558 (2003) where the United States Supreme Court struck down a state statute that prohibited certain sexual activity between persons of the same sex.  The United States Supreme Court held the same sex couple’s due process rights were impermissibly infringed upon by the statute.  The Plaintiffs in this case asked the Arizona court of Appeals to strike down the Arizona statutes prohibiting same sex marriages in light of the Lawrence ruling.

Faced with the decision of which level of scrutiny to apply to the laws, the court decided the lowest level, a rational basis scrutiny best applied.  Whether the court found fundamental liberty interest is involved in same sex marriages determined whether the highest or lowest level of scrutiny applied.  Standhardt v. Superior Court of Ariz.,77 P.3d 451, 454-55 (Ariz. Ct. App. 2003).  The Arizona Court of Appeals does not explain why an intermediate level scrutiny was not even considered.

Considering the fundamental rights to due process and privacy, the court found neither liberty interest applied in this situation.

Due Process

Plaintiffs argued constitutional due process protections are extended by both Lawrence v. Texas and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).

With a narrow reading of Lawrence, the court did not find that same sex marriages were explicitly protected in the opinion.  Since the United States Supreme Court did not come right out and say same sex marriages are afforded due process protections, the Arizona Court of Appeals did not think it had any constitutional protections.

Similarly, the court read Planned Parenthood only allowed same sex couples the freedom to enter into a relationship, not permitting same sex marriage.

“The history of the law’s treatment of marriage as an institution involving one man and one woman, together with recent, explicit reaffirmations of that view, lead invariably to the conclusion that the right to enter a same-sex marriage is not a fundamental liberty interest protected by due process.”  Standhardt v. Superior Court of Ariz.,77 P.3d 451, 460 (Ariz. Ct. App. 2003).

Arizona’s Privacy Protections

Plaintiffs argued the Ariz. Const. art. 2, § 8, provides greater privacy rights than the United States Constitution, and would create a fundamental liberty interest.

Without any legislative intent given for Arizona’s constitutional privacy provision, the Court reasoned it was unlikely the framers intended it to extend to same sex marriages.

The court tip-toed around the privacy issue by arguing case law by arguing past cases that expanded the state privacy protection did so against government intrusion.  The court implied, affording same sex couples privacy protections would not guard against government intrusions.

Equal Protection

Almost as an afterthought, the Arizona Court of Appeals quickly discards the argument.  Applying very similar analysis to the equal protection claim as it did in the due process claim, the court used the rational basis level of scrutiny.  Through the rational basis the court said prohibiting same sex marriage, “furthers a proper legislative end and was not enacted simply to make same-sex couples unequal to everyone else.”  Standhardt, at 465.

Difference 1: Level of Scrutiny

The main difference in the cases, putting to the side the outcomes, is which level of scrutiny is used.

Over recent decades, the Supreme Court has developed a three-tiered approach to analysis for different constitutional issues.  There are three different levels of scrutiny: strict scrutiny (highest), heightened scrutiny (intermediate); rational basis (lowest).

For intermediate and highest levels of scrutiny the government has the burden of proving the law is constitutional.  The lowest level of scrutiny the law is presumed constitutional and the individual is burdened to prove it is unconstitutional.  It has historically required very little for a law to pass as constitutional under the lowest level of scrutiny. Courts using this test are highly deferential to the government and will often deem a law to have a rational basis as long as that law had any conceivable, rational basis.

The Ninth Circuit Court of Appeals had the luxury of following the Supreme Court precedent of intermediate scrutiny set in United States v. Windsor, 133 S. Ct. 2676 (2013).

The Arizona Court of Appeals did not even consider intermediate scrutiny for the due process claim.

Difference 2: Narrow v. Broad Reading of Case Law

The Arizona Court of Appeals read the cases very narrowly.  In fact, it seems like Judge Reinhardt in his concurrence spoke about courts, like the Standhardt court, cautioning them for reading cases too narrowly.

This is important because how narrow the Arizona Court of Appeals read case law led them to view that no fundamental liberties would be infringed by prohibiting same sex marriage.  If the Arizona Court of Appeals had not read the cases so narrowly, it likely would have found that at least due process or equal protection was implicated (each has very similar analysis in this situation).  Then either an intermediate or a heightened level of scrutiny would have been used and it would have been much more difficult to justify the prohibition with the increased constitutional protections.

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