Same-Sex Marriage Case

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The United States Supreme Court hears arguments on a case that could determine whether same-sex marriage is a constitutional right. Arizona State University law professor Paul Bender will analyze the case and the hearing.

Ted Simons: Coming up next on "Arizona Horizon," we'll talk about today's U.S. supreme court hearing on same-sex marriage. Also tonight, learn about efforts to help businesses that make products out of waste. And we'll show you an aerial effort to save the white tank mountains. Those stories next on "Arizona Horizon."

Video: "Arizona Horizon" is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.

Ted Simons: Good evening, on welcome to "Arizona Horizon." I'm Ted Simons. The United States supreme court today heard arguments on a case that could determine if same-sex marriage is a constitutional right. Joining us now to analyze what happened today is ASU law professor Paul Bender. Good to see you again.

Paul Bender: Nice to see you, too.

Ted Simons: What did the Supreme Court hear today?

Paul Bender: The heard actually four cases from states that still ban gay marriage, and most lower courts, federal lower courts have held that bans on gay marriage are unconstitutional, including the ninth circuit. That's why there is gay marriage in Arizona now. Some states, Kentucky, Tennessee, that part of the country, court of appeals there, only court of federal appeals -- there was a conflict in the circuits and the court took the case.

Ted Simons: The court took the case and yet it didn't allow those bans to continue until they took the case. That would be quite jujitsu if they wound up saying these things can't stand.

Paul Bender: They didn't -- from the ninth circuit and all of the other circuits holding BANS for gay marriage -- they let gay marriage go into effect and then they take this case. It does seem very hard for them to think about saying that the bans are okay. What do you do with the people in those states that got married, and they let them get married because they didn't take the case. Everybody thought when they didn't take that case that they wouldn't take any of them. But when one court of appeals holds that the bans are okay, they sort of have to do it. A conflict in the circuits. That's what they were talking about today.

Ted Simons: Talk about some of the questions -- we heard some of the questions were sharper than expected. Did you think they were?

Paul Bender: No, no, I didn't see very much, I didn't see anything surprising in the argument. Everybody knows how eight of the justices are going to vote. The four sort of liberals are going to vote to hold that bans on gay marriage are unconstitutional, Scolia, Thomas, Alito and probably Roberts -- as usual, it is up to justice Kennedy. And everybody is looking to see what signals they could get from Kennedy. When the argument started, it sounded as they he was maybe thinking of holding that the bans are okay, but by the end of the argument, I think most people thought that he had come around. And I think the person who argued for the state in that case, I think sort of hurt himself by talking about the thing that Kennedy seems to care most about, and that is the effect of bans on gay marriage on children. Children who have been adopted by gay couples and the gay couples want to move to a state that bans gay marriage and they want to both be parents and they want to have all of the rights of parents that both of them are parents. One dies, the other has custody of the kid and Kennedy really cares about that. That played a big part in that part of the argument, and Kennedy is just saying, what about all of the kids. We have to do something about that. You can't let the kids -- somebody gave an example of a couple who lived in California, married in California, one in the army, reassigned to Tennessee. They have children. They have to move to Tennessee. The marriage is destroyed when they move to Tennessee unless Tennessee has to recognize the California marriage. I should have said that originally. Two really two issues before the court. One is the states have to permit gay marriage. If they do, the second case has no relevance. But if the court should hold, as I don't think it will, but if it should hold that states can ban gay marriage, then they have to consider what is the state that bans gay marriage do about people who are married in a state that has gay marriage and who move into the state, like this couple from California come into being in the military. That case was being argued. Second one was being argued. It seems to me that just pointed out how you have to decide the first case to say that you can't ban gay marriage because it seems impractical to have a country where you have half of the states with gay marriage and half of the states without. People can't move around unless they have to respect the marriage, and if they have to respect the marriage from other states, then it becomes impossible, I think, to maintain a ban on gay marriage in a state where people can go to another state get married and come back or people move into a state like Arizona has a lot of people who move in. If all of those people have to be treated as married, then I think it -- you have to -- you have to say you can't ban gay marriage at all.

Ted Simons: Would that be a compromise of sorts?

Paul Bender: It would be a compromise, but it would be a mess. Because what do you do? What do you do with these people? A couple moves, couple who moved to Tennessee, if they don't have to recognize the California marriage, those people who have been married with children for several years, all of the sudden that family is destroyed when they go to Tennessee and they don't have all of the rights they had. For example, suppose one of them dies. In Tennessee, one, only one of them could adopt the children. So, if that one dies, the other one has no rights to the children. That kind of thing is -- they have been file -- they can file a federal joint tax return because the Federal Government treats them as married, if they were married in a state that permits it. A state is going to stay -- take Arizona, income for Arizona, is your gross income on the -- adjusted gross income on the federal return. If you are a married couple and you are doing that some place else and you come here, you have to file separately here, even though in Arizona, even though you're entitled to file a joint return, your state return, how is Arizona going to get the people's income from the federal return because the federal returns is a joint return that Arizona won't recognize.

Ted Simons: As far as the compromise is concerned, and I don't know how broad or narrow a ruling like this would be, but the idea is okay, states can do what they want to do, you still have to recognize -- I mean, it seems illogical --

Paul Bender: Hard to believe. Once you say they have to recognize gay marriage in other states, it is very hard to maintain that they can say the citizens in this state who never went to another state -- I thought the second argument really made stronger the argument in the first case that the bans on gay marriage are unconstitutional. It is an interesting constitutional issue which has never been decided and it will be interesting to see what theory the court uses. Will they say that sexual orientation is a suspect classification? That would mean that a whole lot of laws that might bear on gay people would be unconstitutional. Or will they say that a ban on gay marriage is irrational? There may be other things that you can do for gays, but a ban on gay marriage doesn't pass the rationale test, which is the lowest level. That's hard to say because you have so many states in which the people voted to ban gay marriage.

Ted Simons: So, we should get a ruling this summer.

Paul Bender: We get a ruling by the end of June.

Ted Simons: Okay. Before you go, we have a couple of minutes left. A lethal injection case out of Oklahoma that the court -- Arizona attorney apparently argued this case. This deals with death penalty and this drug that apparently isn't working so well.

Paul Bender: Right. The drug that the states and I think every state was using lethal injection, that the states have been using, manufacturers of the drug and there are two of them, refused to make it anymore. So you can't get it. You have to find something else. And the states have settled on something that there is some evidence that does not completely render the person unconscious when they start stopping his heart and stopping his breathing and that could be very, very painful. Nobody, of course, knows because when the people are dead, you can't ask them what -- how bad it was. And so the court has to decide whether it is cruel and unusual punishment. They said lethal injections were okay a few years ago. Now the claim is being made hey, you can't be sure that this is not cruel and unusual punishment. And if you can't be sure that it is not, you have to stop it. States have to come up with a system that you know, unless some horrible accident, is going to not be proven --

Ted Simons: Broad and narrow rulings, what do you see on this one --

Paul Bender: It depends on which way they hold. If they were to hold that this drug combination is unconstitutional, that would be -- that would make it very difficult for states to carry out the death penalty anywhere because they can't get the drugs that they are sure are okay. I don't think that would get most states -- that still have the death penalty to repeal that, but it would have a big impact. Whereas if they rule this is okay, then things continue the way they are. I mean, the way they are is very disturbing because you -- we had one in Arizona, somebody really seemed to be suffering.

Ted Simons: Right.

Paul Bender: And I think the court in general would not be willing to say you can make people suffer like that.

Ted Simons: You think the court will basically go against the --

Paul Bender: If I have to guess, I would guess that they would say these executions are okay. And the main reason I say that is that they -- one of the main reasons, that they permitted somebody to be executed with this material. They didn't stay his execution. And then a week later they took these cases.

Ted Simons: Interesting.

Paul Bender: So, if they're going to let somebody be executed under the same drug that they're now considering whether it is cruel and unusual, I think it is hard for them to say it is cruel and unusual because they just permitted something that was unconstitutional.

Paul Bender: Like we talked about with gay marriage, you go down one avenue it is kind of hard to come back.

Ted Simons: Great stuff. Always good to have you here. Thank you for joining us.

Paul Bender: Nice to be here, Ted.


Paul Bender:Law Professor, Arizona State University;

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