The United States Supreme Court has ruled that same-sex couples have the right to marry in the U.S. Local attorney Dan Barr will talk about the case.
TED SIMONS: The U.S. Supreme Court ruled Friday that same-sex couples have the right to marry. It was a 5-4 decision and it legalized same-sex marriages nationwide. Here now to discuss the ruling is Dan Barr, it's like our Supreme Court ruling special. This is the time of year, major case. This may be the landmark case of this term.
DAN BARR: This is going to be one of the historic cases at the Supreme Court. People are going to be reading 100, 200 years from now.
TED SIMONS: And justice Kennedy as is often the case seemed as though he was the linchpin here. The key. Protected under the 14th amendment is what he's saying.
DAN BARR: Well, all four Supreme Court cases dealing with gay rights have been written by justice Kennedy. I think people will look at it as the quartet of gay rights cases that he authored and he'll go down as the leading voice for gay rights in this country.
TED SIMONS: Give me the case, I think there were four cases here combined into one for the Supreme Court here. Give us both sides. What was going on here?
DAN BARR: Well, it was the same issue that was going on all over the country concerning the right to marry and after the Supreme Court denied cert in those seven cases last fall, it unleashed courts around the country to recognize gay marriage. I mean, two days after the Supreme Court denied cert last October, the ninth circuit recognized the right to gay marriage. Nine days after that, Arizona recognized the right to gay marriage. So the issue that went before the Supreme Court was only one circuit had gone the other way, which was the sixth circuit so you had these cases out of Ohio and Michigan and Kentucky dealing with the right to same-sex marriage and they were the same issues of whether your marriage was recognized from one state to another, in the case whether his marriage would be recognized in the death certificate of the spouse, which is precisely the same issue that occurred here in Arizona with fred McGwire who brought a claim and judge sedwick invalidated the Arizona same-sex marriage ban only to him for one person one month before he struck down the same-sex marriage ban.
TED SIMONS: So with that in mind, again, as far as Kennedy writing the opinion here, he wrote a lot about dignity and the Constitution grants the right to dignity. The dissenters are saying no it doesn't. It's not in the Constitution. Dignity is not mentioned. Talk to us about that.
DAN BARR: Well, it gets down to the fundamental way of how you look at the Constitution. What justice Kennedy says is you look at whether or not marriage right is listed in the bill of rights. And if you don't find it there then you look at whether it's considered to be a fundamental right under the due process clause. And he finds that getting right to married, is a fundamental right, a liberty that's guaranteed by the due process clause. And the way he reaches that is he looks at the precedent, and then he finds that gee, we found that the right to marry is fundamental, and then he looks at why. And he lists four reasons why and none of them have anything to do with whether you're a man or woman. And he finds first that the right to personal choice regarding marriage is inherent in the concept of individual liberty. Second, he finds that marriage supports a two-person union unlike any other in its importance to the community and individuals. Third, he finds that marriage safeguards children and families, that gives them stability. And finally, that marriage is a keystone to social order, that there are thousands of rights under federal and state law that flow from being married.
TED SIMONS: And yet, I think it was scalia who said this was social transformation without representation.
DAN BARR: Well, what the dissent is all four dissents go off this is for the legislature, not for judges to decide. And justice Roberts in his dissent says I'm sympathetic to gay marriage, I'm sympathetic to the rights of same-sex couples but we're cutting short the democratic debate here. This should have been decided by the legislature. And they go on to say and we shouldn't have judges determining what fundamental rights are, because while some people might like that today, you might not like it tomorrow when somebody else is deciding what a fundamental right is and there's not much guidance for that. Justice Thomas goes even further by saying well liberty as understood by the people who passed the bill of rights in 1791 only concerned the physically holding you by the state, whether they were detaining you or not and has nothing to do with the state benefits.
TED SIMONS: That's interesting. That takes us off in different directions. So you mentioned Arizona. It's already legal since the fall in Arizona but what about other state laws? What are the ramifications of this?
DAN BARR: Well, you take this opinion and you combine it with the ninth circuit's opinion, that is the case where they struck down the Nevada and Idaho same-sex marriage bans. The ninth circuit in that case held that laws distinguishing among sexual orientation had to be viewed by heightened scrutiny. Before they were viewed under the rational basis test, meaning any laws making distinctions based on sexual orientation in Arizona in federal court will have to meet a heightened scrutiny test.
TED SIMONS: The 1,000 plus laws on the books that define man and woman as marriage, each and every one of those?
DAN BARR: It becomes much tougher for the state to defend those laws now than it did before. I would think a lot of those laws fall by the wayside under the reasoning of justice Kennedy. If you look at what he's talking about, fundamental rights here, one of those is child rearing and the like and those all flow from marriage, that the Supreme Court opinion standing alone would be good reason to strike it down, but the ninth circuit opinion where he says it's heightened scrutiny, the state is going to have a much tougher test in defending those. So I would think for a lot of those laws which were based on an assumption that marriage is between a man and a woman will fall by the wayside or you're going to have people in the legislature cleaning those up and making it clear that it applies to married people versus people who aren't married.
TED SIMONS: Discrimination protection. Adding it to race, gender, religion, disability, those types of things, a possibility?
DAN BARR: Well, it's not only a possibility. The EOC has already made the determination that discriminating against people based on sexual orientation violates federal law. So the EOC is already enforcing discrimination laws that way. Arizona's one of the states that does not have a law prohibiting discrimination against gays and lesbians. I wouldn't be surprised if you see a bill in the legislature and if it fails there to see an initiative go forward to establish such a law. When that happens, I don't know, but it's only a matter of time.
TED SIMONS: What about religious liberty laws? Will we see a return of S.B. 1062? Can we see a return of S.B. 1062?
DAN BARR: Since it failed the last time, it's gotten to be a lot more difficult for the people who would support such a statute. So I don't see that happening. If you did see it happening, I think it would have a counterproductive effect. As for the tension, between the religious community, first of all, there are a lot of people in the religious community who support same-sex marriage. I mean, it's not an issue of the gay community against the religious community. I mean, there's a lot of people in religious communities who support same-sex marriage. But to the extent there's any, you know, difficulty, that will be resolved by the courts.
TED SIMONS: And real quickly in Texas, the attorney general there said if a clerk issuing marriage licenses, if you disagree religiously, quickly, could we see in that Arizona?
DAN BARR: You can see it but it's sort of nonsense. The court's job is to issue wedding licenses and if the clerk doesn't like it, he or she can get a different job. I mean, the clerk is being paid by state money to do a job for the state.
TED SIMONS: All right. Good to have you here. Thanks for joining us.
TED SIMONS: Tuesday on "Arizona Horizon," Arizona Congressman Reuben Gallego will discuss controversial Sky Harbor flight path changes and other issues affecting his district and new clinical trials aimed at fighting a particular type of melanoma. That's on the next "Arizona Horizon." That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great evening.
"Arizona Horizon" is made possible by contributions from the Friends of Eight, members of your Arizona PBS station. Thank you.
Dan Barr: U.S. Local Attorney