Same-Sex Marriage Decision

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A federal judge is expected to decide Thursday whether Arizona’s same-sex marriage ban is constitutional. Howard Fischer of Capitol Media Services will update us.

Ted Simons: Good evening and welcome to "Arizona Horizon." I'm Ted Simons. At 5:30 this afternoon, we are still waiting to hear from a U.S. district court judge on Arizona's law defining marriage as between a man and a woman. Here with the latest, Howard Fischer with capital media services. This is judge John Sedgwick. We are about 5:30 live here, we will replay at 10:00, but right now, it could happen at any moment.

Howard Fischer: It really could. The last thing to happen was about 1:00 this afternoon. You may remember the 9th circuit last week voided the gay marriage laws in Nevada and Idaho. Judge Sedgewick said earlier this week to the state, tell me why that doesn't apply here. Tell me just how it doesn't count. I thought what the state was going to do was present arguments about well Arizona's law is different, our constitution is different, but they punted. They said, well, technically the 9th circuit hasn't issued a formal mandate and, therefore, you can't rely on it. They are conceding that the 9 the circuit precedent applies. They're conceding that when the mandate issues, Arizona's law goes away. This seems to be a delaying tactic.

Ted Simons: Brings up the question of what is attorney general Tom Horne doing. Does he want to take it to the supreme -- I think for most folks following this, it seems like both avenues have big road blocks in them.

Howard Fischer: Exactly. He thinks perhaps that somebody will get the full 9th circuit, 11 judges to review Nevada or Idaho and that is certainly within the realm of possibility. Or the supreme court will somehow put holds on. We have seen what happens every other state that has gone to the supreme court and said, oh, please put our law on hold while you get to review it, the supreme court has said go away. This judge has said in an earlier ruling, when he was looking at the issue of a man who -- California married spouse had died, it looks like Arizona's law is unconstitutional. I am not sure exactly what we are waiting on here.

Ted Simons: It does afford an opportunity for the state to hold off as long as possible in the event someone, somewhere, decides to either stay or add extra time for reconsideration.

Howard Fischer: That's all we're doing. That's all we're doing is buying time. Although what is interesting, an attorney for -- basically said this was a white knuckled attempt to hang on to the last chance that maybe we can salvage this puppy.

Ted Simons: No gay marriages in Arizona until this fight is over. And, again, this could happen in the next five minutes or any time this evening. It could happen.

Howard Fischer: Yes.

Ted Simons: Once it happens, do gay marriages start in Arizona immediately?

Howard Fischer: Well, it depends on how the judge issues his order. The judge could issue his order and stay his own order to give them a chance, want to go to the 9th circuit, have at it. If the judge simply voids the law, I think -- let's assume he does it at 3:00 in the morning, Friday morning. 8:00, Jenny PEISER is down at the courthouse with a couple of her clients demanding the marriage licenses. There are no same-sex marriage licenses to be had so I don't know what the clerk tells her.

Ted Simons: Are county clerks prepared for this? We are talking about the possibility in the snap of a finger, announcement of a verdict, a decision, you can go get married.

Howard Fischer: Exactly. County clerks say they're not prepared for it. But I think if Jenny PEISER is standing there and you are the county clerk, she'll say see where it says husband and wife, how about spouse A and spouse B, end of the problem, issue the license.

Ted Simons: As far as Arizona law is concerned, it defines marriage as only between a man and a woman. What has judge Sedgwick said about this so far?

Howard Fischer: What the judge said in line with all of the other rulings of all of the other circuits, that this appears to be discrimination based on sexual orientation. The state is out of arguments. The state said we're not discriminating on sexual orientation, 9th circuit rejected that. They rejected the argument that only straight couples can marry because only they can have children. They even rejected arguments presented that somehow if gays can marry, men will decide that marriage isn't important and they will leave their wives. I'm not sure I'm ready to tell my bride if gays can marry, I'm out of here.

Ted Simons: 14th amendment, equal rights protection, and talking about a district court judge that looked at the 9th circuit, probably the supreme court as well, and he has pretty much signaled what he is going to do.

Howard Fischer: I think he more than signaled it. I would be more than -- the fact that he has a written decision ready to go. Looking at what the state argued this afternoon. Unless he finds some reason in there to delay it, you know, tomorrow night when the roundtable comes I think we know what we are going to see.

Ted Simons: I hope we have some decision by then. Right now we don't. Good to have you here. Thanks for joining us.

Howard Fischer: You're welcome.

Howard Fischer:Journalist, Capitol Media Services;

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