Same-sex Marriage Lawsuit

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Both sides in a lawsuit over Arizona’s gay marriage ban want a federal judge to decide the case himself without having to go to full trial. Associated Press reporter Bob Christie, who is covering the issue, will discuss the lawsuit.

Ted Simons: Both sides in a lawsuit against Arizona's same-sex marriage ban want a federal judge to decide the case without having to go to a full trial. Associated Press reporter Bob Christie is covering the story. He joins us now. It's good to have you here. Now give us the background on this case. This was what a filed in March of -- Who did the filing?

Bob Christie: This was filed by Randall Legal on behalf of seven same-sex couples in Arizona who want to be able to be allowed to be married. There's a second case that's also working its way through in Arizona is filed a couple months earlier involving another group of couples. They're both relatively raise the same issues. The bottom line is that they believe that it's unconstitutional that they - that they are banned from being married, they believe the state law that prevents that which is in the state constitution is -- Should be overturned based on constitutional grounds.

Ted Simons: Basically equal protection and due process, those clauses of the U.S. constitution violated they say --

Bob Christie: Correct the Fifth Amendment and the 14th amendment.

Ted Simons: Now again, this law goes back to what 1996 or something along those lines. Correct?

Bob Christie: Correct. The law was passed by the legislature in 1996. It was challenged in the federal, in the state courts, the Arizona Court of Appeals said it was ok several years later, and then in 2008 voters approved a constitutional amendment, which basically put it in the state constitution. So it's enshrined there which makes it even, you know, the legislature would be able to get rid of it anyway unless it went back to voters.

Ted Simons: So once upheld and then the voters put it into the constitution. Interesting scenario there. Also interesting is that both sides want the judge to decide and not go to a full trial. What's that all about?

Bob Christie: Well, in this case the facts really aren't at issue. I mean everyone knows that -- Everyone knows what the basic facts are. This has been argued quite a lot around the United States over the last couple years, so there aren't any real facts that need to be decided by the judge other than does it actually fail the constitutional test as set up by the U.S. Supreme Court. And that's what's interesting, because last year the Supreme Court struck down a major portion of the Defense of Marriage Act, that's a federal act, on constitutional grounds, on Fifth Amendment grounds. And since that time, federal judges across the United States in I believe 11 states in the last year and a half, have struck down state bans. Those are all being appealed right now. Arizona is kind of slow to the game, ours didn't get filed, a lot of those cases were filed the last couple three years, and are working their way closer than ours are now.

Ted Simons: So and again, it sounds like the ninth circuit is already considering a couple of these cases, Idaho I think in Nevada, something like that. I think on one of the cases a ban was struck down by a judge and another was upheld. But regardless, the ninth is looking at this, is the idea of not going to a full trial, is that the judge will find out what the ninth says and kind of get the hint?

Bob Christie: Part of it is that. Part of it is that, like I said, it's all legal arguments that really don't have any facts that require a finder of fact judge to hear new evidence. It's going to be filed -- The judge in the case, it's pretty interesting, he's an Alaska U.S. district judge who's sitting and happens to have the case in Arizona, he's on senior status which mean he's been around a long time and he's technically retired but in the federal system you never really retire unless you're incapacitated. You keep taking cases. And he has this case, because Arizona has more cases than Alaska does. And he's a George H.W. Bush appointee; he's known to make his decisions off of paperwork. Rather than - doesn't necessarily think that trials are necessary in a lot of civil cases. He likes to do what they call summary judgments, which is giving the pleadings, let me read the documents, give me all the paperwork and I'll tell you what the law is. So he will -- If he takes the suggestion from the parties, he will not have to have a trial. And he could rule -- The schedule right now is to get all the filings by the end of October. The second case I told you about is closer to being briefed, both of them are in Judge Sedgwick's hand, he's the federal judge in Alaska, one would think he would wait until he has briefings on both of those to pop out rulings, but who knows?

Ted Simons: And again, we're talking about, real quickly, oral arguments, there is a split regarding whether or not there should be oral arguments? Why?

Bob Christie: There is, well it's kind of interesting, the land of legal lawyers say we don't need oral arguments, there are several motion issues which have to do with technicalities that the state wants to argue. I don't know if the judge will go along with that or not. For the plaintiffs and the defendants, it's probably not necessary at this point. I wouldn't think to have oral arguments. But you know it's up for the judge to decide.

Ted Simons: And as far as a time line is concerned, this Utah ban seems like that's the one that's headed toward the Supreme Court. We've had Supreme Court shows here, Paul Bender here basically saying this is very likely the Supreme Court will look at this U.S. Supreme Court will look at this next year. How does that play into all of this?

Bob Christie: Well you know, it's kind of funny, if you watch the news over the last year since the Defense of Marriage Act decision by the Supreme Court, there are federal judges all the way across the country who are striking down these bans. The ninth circuit as we said is going to take it up, the fourth circuit in Denver struck down or upheld Utah's -- Upheld the federal judge who struck down Utah's, Utah today appealed that directly to the U.S. Supreme Court. There's another district - I'm sorry it's the fourth district in Virginia is next up; they have a case about ready to decide. The Supreme Court generally doesn't take cases unless they're split circuits so if we get every circuit around the country who all says, yes, these are unconstitutional, I don't know if the Supreme Court will weigh in or not. I mean nobody wants to second guess judges as the next guest will tell you probably.

Ted Simons: Yes, so bottom line, I mean the Arizona ban could be gone by the end of the year.

Bob Christie: Absolutely. When Judge Sedgwick rules, what's been happening with these cases around the country is once the federal judge strikes it down he puts it on hold, he or she puts it on hold, until it's up to the Appeals Court. But with the Utah direct appeal to the U.S. Supreme Court today, and with the Virginia fourth circuit decision due out at any time and the ninth going to hear arguments in September, they I wouldn't think they've already had a - you know last year the U.S. Supreme Court upheld California's same-sex marriage overturning Proposition 8 in California, so I would think that -- that's prime and ready to go too, I wouldn't think the ninth needs a lot. The reason the ninth took that case by the way is because in 2012 Nevada, this is before DOMA, the federal judge of Nevada upheld Nevada's same-sex ban and then after DOMA a separate judge in Idaho struck down Idaho's ban. So that's why they took that case, because there is a split in the circuit.

Ted Simons: And again, because Idaho was struck down and Nevada was upheld, the idea perhaps is you know forget the full trial, forget the jury, we're going to find out what the ninth circuit is going to say with both of these cases, let the judge go ahead and do a summary judgment and we'll move on.

Bob Christie: Absolutely. I think that's what it is.

Ted Simons: And when -- what are we looking for time line here as far as this case?

Bob Christie: Well like I said, the one case should be fully briefed by the other, this month the second case that I wrote about yesterday will be fully briefed by the end of October. I would suspect the judge has no reason to wait after that. He could -- We could get a decision on the second case early in November if they have arguments.

Ted Simons: Wow. Bob good stuff. Good to have you here. Thanks for joining us.

Bob Christie:Journalist, Associated Press;

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