Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. How will same-sex marriage impact legal issues ranging from Arizona's parenting & adoption laws to health care decisions and divorce procedures? Here is Dan Barr, an attorney with Perkins Coie, an attorney that represented a gay couple in a recent legal fight. Thanks for coming in. You're the go-to guy for this stuff I hope. As far as legal, how much does change?
Dan Barr: Well, gay couples now will have the same opportunities to get into marriage and to go through life as a married couple and some may get divorced that heterosexual couples have.
Ted Simons: Let's talk about divorces, then. Same sex divorce. How would they differ in terms of alimony, spousal support?
Dan Barr: They will just be the same as heterosexual couples. Same-sex couples now when they separate will have the same rights as heterosexual couples in getting divorce and have the same structure that courts provide for people when they are separating and operating their assets. Child support issues, spousal support issues that heterosexual couples enjoy that gay couples will have that advantage.
Ted Simons: Isn't length of marriage often a factor in those decisions?
Dan Barr: Absolutely. What happens in some states that have recognized same-sex marriage, they have taken into account if the couple has been, say, together for 20 years before same-sex marriage was recognized. Arizona will have to choose its own path there, but that's the path other states have chosen.
Ted Simons: How will Arizona choose that path? Is that a legislative deal, judicial?
Dan Barr: The legislature can do it. The other states it's been common law where the courts take that into account along with many other factors they take into account.
Ted Simons: Okay. Parenting laws. Are same-sex couples automatically deemed legal parents at the moment of birth as heterosexual consumes?
Dan Barr: Yes, they will have the same presumption of parent age at the moment of birth as heterosexual couples. One issue that will come into play, say, if you have a same sex couple where one of the members have adopted a child, say they have been a family for five years. You'll now have the other spouse being able to adopt as a stepparent and that will be easier. They will both have rights as opposed to before only one of the members of the couple would have parental rights.
Ted Simons: Much easier for the sups. Is it relatively -- for the same-sex couples. Is it relatively the same as heterosexual couples?
Dan Barr: Yes.
Ted Simons: Adoption laws and procedures. Talk to us. Arizona state law has certain aspects that
Dan Barr: The Arizona state law gives preference to a married couple over a single person. The statute reads a married couple says a man and woman would have preference over a single person. Again, the experience in other states has been that the courts will read that to say, well, the preference is between married people and single people adopting, not between married heterosexual couple and a married gay couple. If the courts were to interpret it the first way saying it's a difference between married and single people, that would be perfectly fine. If the interpretation is between married heterosexual people versus preference over married homosexual people that would be a problem and that would probably get stricken down under the 9th circuit opinion from a few weeks ago.
Ted Simons: That preference sounds like it's a challenge waiting to happen.
Dan Barr: Absolutely. What happens, states that have recognized same-sex marriage, you have had several things happen. Either the courts decide, well, we'll interpret the statute so it makes sense difference between married and unmarried people, but where it becomes a problem, either the legislature could step in and actually fix the laws so there's no ambiguity there, or if that doesn't happen the courts will have to step in and deal with the problem.
Ted Simons: Health care decisions. Same-sex couples, how does that differ or does it from heterosexual couples?
Dan Barr: It doesn't differ. You'll have the issue of if your spouse is incapacitated you'll be able to make health care decisions for them. That they couldn't exist before with same-sex couples.
Ted Simons: Death decisions. Same thing?
Dan Barr: Absolutely.
Ted Simons: If a family of one member, say they disapprove of the marriage --
Dan Barr: That happens with heterosexual couples too.
Ted Simons: It does. With some frequency. But as far as same-sex couples they disapprove, never recognize, this doesn't matter.
Dan Barr: Doesn't matter. It's the spouse is going to have that decision. Various federal benefits will come into play as well. Under the Windsor decision it struck down the Defense of Marriage Act, but there was still some federal benefits tied to the state where you were living at the time. Not the state where you got married. So for instance some survivor benefits for Social Security or for military families, you know, couples, gay couples will be able to get those benefits that they couldn't get before.
Ted Simons: Say you got married somewhere where gay marriage was legal three years ago. Two years ago. You're now in Arizona. Does that mean your marriage in Arizona starts now or have you been married for three years?
Dan Barr: Well, I think the courts will decide that. That's an interesting issue. I think you're going to say you have been married three years and Arizona is only now recognizing it. But one of the things that Arizona couples will now be able to do is file a joint return under Arizona tax laws as well as federal tax laws. For the past year they had to file a joint return under the federal tax laws and then had to file a separate return under Arizona and calculate their taxes differently.
Ted Simons: Workplace discrimination. Talk to us about that.
Dan Barr: That's where the 9th circuit decision of two weeks ago is so crucial. The 9th circuit did more than the other federal circuit courts in striking down the same-sex marriage ban. In the Supreme Court decisions they held that same sex provisions failed under the rational basis test is that the state couldn't meet any sort of rational explanation for this. The 9th circuit went further and said if you're going to discriminate against people based on sexual orientation you have to meet a heightened scrutiny standard, which is raising the standard of proof that state has to meet. That is important not so much for the same-sex marriage provisions but for any provision that discriminates against people based on sexual orientation. So for the workplace or housing, dealing with the government in any sort of way, the Lota case will be key in striking down those provisions.
Ted Simons: Arizona law low pressure the lack of Arizona laws defending or prohibiting discrimination, that comes into play here?
Dan Barr: Absolutely. If there is workplace discrimination going on against gay people, they are going to be able to rely on the Lota decision and other federal decisions to say that this is discriminatory.
Ted Simons: So quick question here, do churches have to perform, must they perform a same sex wedding if asked?
Dan Barr: No. If there's a church that doesn't want to recognize same-sex marriage, they don't have to perform it. Marriage is a civil right, and it has do with the state granting you a license and then you can go wherever to get married.
Ted Simons: Can bakers and photographers -- you knew this was going to happen. Can bakers and photographers say I don't believe in this. I'm not going to do it.
Dan Barr: In the long run it won't be the smartest business decision in the world because you're deciding that you're not going to serve six to 7% of your clientele. Your competitors will gladly take their business. So I think in the long run just like it happened with the civil rights movement in the south, it becomes bad business to discriminate against people.
Ted Simons: Bad business but still legal?
Dan Barr: Well, that's going to be a situation of upped federal law whether you can do that or not. People can bring skim nation claims against people who don't do business, who are running a public accommodation and deciding I won't do business with you because Uruguay or black or because you have red hair or whatever. But I think the economic impetus will be so strong that you won't be seeing many people doing that.
Ted Simons: Bottom line, when religious beliefs clash with the client, how does that play out? Legally.
Dan Barr: Well, we have the hobby lobby decision last year which has to do with closely held corporations, the court had limited it to that although those are many of the businesses in this country, I don't think you would see the same result of the publicly held corporation. That's where the rubber hits the road. If you're running, say, a hotel, which is a place of public accommodation and you say there's no room in the Inn for you that's a problem under federal housing Rauss and the like. I think we're going to see how that plays out, but I think the discriminating against people based on your religion is going to be something that people are going to trot out but ultimately not very successful in the courts.
Ted Simons: Busy times. Thanks for joining us.
Dan Barr: Thanks for having me.
Now that a federal judge has ruled that Arizona’s ban against gay marriage is unconstitutional, more legal battles are left to fight for the LGBT community, such as in the area of adoption rights. Dan Barr, an attorney with Perkins Coie who recently represented a gay couple in a legal fight, will talk about the legal impact of the same-sex marriage ruling.