Thursday, December 18, 2014

Joining the Union

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Advocates for marriage equality across Arizona exercise cautious optimism in the wake of pivotal Supreme Court decisions.


Silvana Salcido Esparza and Jo Novelli-Blasko sit at the dining room table in their Phoenix home on a hot August afternoon, carefully unfolding their marriage certificate and laying it on the table. It’s an official document from the State of New York, and instead of the usual

“groom” field on one half of the document and “bride” on the other, it reads “bride/groom/spouse” on each side. A few feet away in the living room, a teenager Esparza introduces as her son Alex plays video games. The couple gazes down at their certificate of marriage, glowing and gripping each other’s hands while talking about their ceremony at Niagara Falls this past April. “[That day] was pure delight. We started off at the wrong gift shop and by the end of the day, we were dancing in goose poop!” Novelli-Blasko recalls. “We enjoyed the good humor of friends, the unique pleasure of being formally witnessed in our commitment to each other, and the adventure of eloping to a place that is almost as exciting as our relationship.”

But it’s a bittersweet celebration for the two women. Their marriage, while legally recognized in New York, is not legal in their home state of Arizona. Like all gay couples who legally married in one of the 13 states that allow gay marriage but reside full-time in a place where it’s prohibited, they have many unanswered questions. In June, the United States Supreme Court delivered a victory to marriage equality advocates by striking down a provision of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married same-sex couples. However, the ruling also incited a flurry of legislative riddles, many of which remain unanswered in the legal ether and will likely be resolved over time on a state-by-state basis.

Despite having a same-sex marriage ban on state law books since 1996 and a constitutional definition of marriage as between one man and one woman, Arizona was quickly pegged a gay marriage “battleground state” by media in the wake of the Supreme Court ruling. Several factors indicate a shift toward marriage equality here – a large number of openly gay or bisexual politicians and supportive colleagues, promising polls among voters, recognition of civil unions in Bisbee and Tucson, and a ballot initiative to try and redefine marriage in the state constitution as “between two persons.” But the opposing side appears battle-ready, too, armed with a state history of voter-approved laws prohibiting gay marriage, an outspoken and highly traditional Roman Catholic clergy, a longstanding majority of conservatives in office, and the home base presence of national powerhouse political advocacy and legislation organizations whose mission is to promote “traditional family values” and “religious freedoms.”

Still, there’s a vast gay, lesbian, bisexual and transgender (LGBT) community in Arizona, and many prominent gay couples who’d like to upend current marriage laws. Some local LGBT couples have been together for many years and have impacted Phoenix in myriad ways, from expanding our culinary cachet and diversifying the political landscape, to running neighborhood improvement projects and fundraising for charities. Similarly, their inability to legally marry affects them in myriad ways, from paying higher taxes to not having guaranteed hospitalization visitation rights if their partner falls ill. “I don’t get a discount on my tax dollars,” Esparza says. “They don’t say, ‘You don’t get the right to get married, so we’re just going to go ahead and discount the tax dollars that you pay, because you don’t get full rights.’ If I pay full dollar, I want full rights.”
The Defense of Marriage Act was a federal measure signed by President Bill Clinton and enacted in 1996. DOMA defined marriage as a union between one man and one woman for the purposes of federal recognition and benefits, thus denying same-sex couples more than 1,100 federal benefits, including family medical leave rights, tax breaks, spousal immigration sponsorship rights, and Social Security survivor benefits. At the time DOMA was enacted, a Gallup poll showed 68 percent of Americans opposed recognizing same-sex marriages, and not a single state had legalized gay marriage.

phm1013 jtu2 lgPublic opinion and state laws saw a major shift in the years following the passage of DOMA. Members of the local LGBT community attribute the sea change to multiple factors, but mostly to more people “coming out” as gay and lesbian, from sport and pop culture icons like NBA player Jason Collins and Ellen Degeneres to family members of prominent politicians, like former Vice President Dick Cheney’s daughter and Ohio Senator Rob Portman’s son. When the Supreme Court was hearing arguments over DOMA this past spring, 11 states plus Washington, D.C. had legalized same-sex marriage, and a Gallup poll in July found 54 percent of Americans were in favor of it. In the months following the Supreme Court decision, two more states legalized same-sex marriage, bringing the total to 13 states plus D.C. Worldwide support for same-sex marriages has also increased, with 17 total countries legalizing it.

The case that brought DOMA before the Supreme Court was the grievance of New York resident Edie Windsor, who had legally married Thea Spyer, her partner of 40 years, in Toronto in 2007. When Spyer died in 2009, Windsor inherited her estate and sought federal estate tax exemption for surviving spouses. The Internal Revenue Service denied Windsor’s claim on the basis of her same-sex marriage, forcing her to pay $363,054 in estate taxes that she would not have had to pay had either she or her spouse been a man, thus fitting the federal definition of legal marriage at the time.

The Supreme Court’s decision that the portion of DOMA defining marriage between one man and one woman was unconstitutional and “a deprivation of the liberty of the person protected by the Fifth Amendment” meant the IRS must refund Edie Windsor’s big estate tax, but more importantly, it provided federal benefits to legally married same-sex couples and set a precedent, the effects of which are still rippling down. The big question is how the DOMA decision affects gay couples who legally married in one state (like New York or California) but reside in a state that doesn’t recognize same-sex marriages (like Arizona). Though SCOTUS stipulated the ruling only applied to states where gay marriage is legal, the implicit empowerment of same-sex rights nationwide was clear. As Justice Antonin Scalia, who dissented on the court’s DOMA decision, pointed out, “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

Predictably, there have been numerous challenges and changes to marriage laws on state and local levels in the wake of the court’s ruling. It’s been a piece-by-piece puzzle of progress. “We tend to move forward in waves or stages... with a group of successes that then make possible the next group of successes. It doesn’t happen all at once,” says Jennifer Pizer, Law and Policy Project Director for Lambda Legal, a national legal organization dedicated to pursuing full civil rights for the LGBT community. “People in every state have a role to play in expanding education and showing who’s affected by this discrimination, and for all of us to be called on each other to shift the social conditions and change state law in a range of ways.”

phm1013 jtu3 lgThis past August in Ohio, where domestic partnership registries are offered in nine cities, two men who had been legally married in Maryland sued the state. One of the men, John Arthur, is dying of Lou Gehrig’s disease, and wanted his husband, James Obergefell, to be his legally surviving spouse in Ohio. Federal judge Timothy Black ruled Ohio’s “scheme has unjustifiably created two tiers of couples” and was likely unconstitutional; the couple will be considered “married” in Ohio for purposes of family plot burial rights and estate matters. In Michigan, a lesbian couple with adopted children is suing the state – which, like Arizona, has a voter-approved same-sex marriage ban – claiming the state’s marriage and adoption laws discriminate against their children (under state law, the women, who have individually adopted children, cannot adopt each other’s kids). The state sought to have that case dismissed, but a federal judge declined the motion, suggested the case be expanded to include Michigan’s marriage amendment, and set a trial date for early October. As of early September, more than a dozen other challenges to same-sex marriage laws are pending, including a lawsuit brought by the American Civil Liberties Union challenging Pennsylvania’s same-sex marriage ban. In July, Pennsylvania Attorney General Kathleen Kane held a press conference announcing her refusal to fight the lawsuit, saying, “I cannot ethically defend Pennsylvania’s version of DOMA.”

The history of gay-marriage-related litigation and legislation in Arizona has been limited but meaningful, and has generally favored forces opposed to gay marriage. 

The U.S. Supreme Court declined this past June to hear arguments in an LGBT-related Arizona case, Diaz vs. Brewer, wherein same-sex partners of state employees challenged Governor Brewer’s 2009 law prohibiting health care coverage for domestic partners of state employees, which overturned Governor Janet Napolitano’s 2008 order granting that group coverage. The Republican-majority legislature argued in support of Brewer’s law, saying it was a cost-saving measure. U.S. District Judge John W. Sedwick issued a preliminary injunction blocking the law in 2010, after plaintiffs presented a study showing that denying same-sex partners benefits had minimal impact on the state’s budget. Supporters of Brewer’s law appealed the case, but a three-judge panel on the Ninth Circuit Court of Appeals agreed with Sedwick’s ruling, effectively reinstituting domestic partner benefits for state employees.

Arizona's gay marriage advocates are selective about how and when they bring a case to court – after all, an unfavorable ruling could set their cause back a decade or more. This is what happened in 2004, when Phoenix couple Don Standhardt and Tod Keltner challenged the state’s 1996 gay marriage ban after being denied a marriage license in Maricopa County. The couple’s appeal argued the ban discriminated against gay couples and their children. Discouragingly for marriage equality proponents, the State Supreme Court turned away the couple’s appeal after an appeals court ruled there was no constitutional right to same-sex marriage, and that the state had a basis for prohibiting such marriage based on procreation goals.

Currently, there are no gay-marriage-related lawsuits in Arizona courts. And as we'll see, there's a good reason for that.

Back at her Phoenix home, Silvana Salcido Esparza raises her hand about a foot from the surface of her dining room table to illustrate the size of the stack of legal papers she will have to sign in Arizona to grant her wife a fraction of the marital rights she’d have if they lived in New York. “I’m not recognized here for my state taxes, but if I was living in New York, would the federal government recognize my marriage? So therefore, they should recognize my marriage here,” Esparza says. “So should I be filing as married? That’s a question. Now I have to pay legal council to go find out, whereas if this was legalized, I wouldn’t have to do that, would I? I would just know.”

phm1013 jtu4 lgExperts on both sides of the issue say it’s going to take time to sort out the details of how the Supreme Court’s DOMA decision affects same-sex couples who reside in Arizona but were legally married in another state, but it appears that Arizona couples who wed in states where gay marriage is legal – like Esparza and Novelli-Blasko – will likely qualify for some federal benefits. When deciding the validity of a marriage for federal purposes, the federal government makes a decision based on one of two things: the Place of Celebration Rule (where and when the person got married, which would grant federal benefits to a couple married in a state where gay marriage is legal, even if they reside in a state where it is not), or the Domicile Rule (the law of the state where a person lives). “In a great many places, the federal government has used the Domicile Rule,” Lambda Legal lawyer Pizer says. “There needs to be a decision made about whether the use of the Domicile Rule, which has been the rule in most cases, whether that should be changed now, in order to have the federal government be as consistent as it can with the decision of the Supreme Court.”

If the federal government decides to use the Domicile Rule, there would be few federal benefits available to same-sex couples in Arizona, which has an exclusionary marriage definition amendment in its state constitution. Approved by voters in 2008, the measure defines marriage as between one man and one woman only, and Arizona Attorney General Tom Horne has expressed his desire to protect that. In an amicus brief filed in the DOMA case, Horne defended the “traditional” definition of marriage. “Traditional marriage focuses on protecting children and creating optimal child rearing environments, not on celebrating adult romantic relationships,” Horne’s brief states. “While same-sex couples may do an excellent job of raising children, they cannot provide the family structure states seek to encourage with traditional marriage, where those who raise children combine both legal responsibility for and a biological connection with that child.”

When city officials in the artistic hamlet of Bisbee announced they’d begin registering civil unions on July 5, the small town found itself at the ire of Horne, who threatened to sue the city on the grounds it exceeded its authority in its civil unions ordinance with passages about state-regulated subjects like inheritance, adoption and property ownership. After the ordinance was revised to remove mention of those laws, Horne told the Associated Press he would not challenge it. The revised ordinance comes with limited benefits (including city employee partner benefits, and the ability to record partner contracts stipulating rights related to legal issues). The ordinance declares the Bisbee City Council “supports the right of every person to enter into a lasting and meaningful relationship with the partner of his or her choice, regardless of gender or sexual orientation.”

In late June, a few weeks after Bisbee announced its civil unions, the city council in Tucson approved – with a unanimous 6-0 vote –  an ordinance for a civil union registry. “This was an important step for us to take and we’re going to keep seeking steps to reinforce non-discrimination,” Tucson city councilwoman Karin Uhlich (D) told media after the ordinance passed. “I think there’s been widespread support throughout the community and people are really pleased to see it pass. I hope the Supreme Court rules in the support of marriage equality and that the country starts to turn the corner on that form of discrimination.”

Phoenix and Flagstaff offer domestic partner registries that provide limited rights, and city council members in both cities have spoken about the possibility of civil union ordinances similar to those in Bisbee and Tucson. Lambda Legal's Pizer says that’s the type of incremental progress so integral to shaping the bigger picture. “In Arizona, I think a critical and exciting activity [is] leadership from local leaders, municipal leaders, like what we saw over the past couple months in Bisbee and Tucson, where there’s leadership in Tempe and Phoenix, as well, and a number of other cities and counties, to expand the protections provided by local government,” Pizer says, while still “recognizing that local government can’t change family laws, can’t do things that are regulated at the state level.”

“But I think that work is particularly important because it is engaging civic leaders, it’s providing some protections people need, it’s generating a lot more conversation, and it’s showing there’s a lot more support for the care and needs of same-sex couples than a lot of people would otherwise know,” Pizer adds. “It’s concrete action that generates conversation and visibility, which shifts people’s expectations and perceptions in ways that are tremendously positive. I think in the next six months or so, we’re going to see a lot more of that in Arizona, and that will be an important part of the groundwork... as we look at what happens in the Ninth Circuit cases.”

phm1013 jtu5 lgThe cases Pizer refers to are pending suits (at press time) in Nevada and Hawaii, two states within the Ninth Circuit Court of Appeals that already offer broad domestic partner benefits. The outcome of the cases will directly affect gay marriage in Arizona, which is one reason advocates have held off on lawsuits. “Those cases have broad legal claims – in other words, seeking marriage for same-sex couples based on equal protection and individual liberty, and if those cases are successful, then that would mean that couples in Arizona could marry as well, because Arizona... is in the Ninth Circuit Court of Appeals,” Pizer says, cautioning that the cases could also be “decided more narrowly” and not necessarily answer whether other states in the Ninth Circuit would have to offer marriage to same-sex couples.

Very likely, the next major gambit by pro-gay marriage advocates in Arizona will be to challenge the 2008 amendment to the Arizona state constitution defining marriage as between one man and one woman. In June, Phoenix business owner and Libertarian blogger Warren Meyer and Erin Ogletree Simpson, chair of the Arizona chapter of the Log Cabin Republicans, launched a campaign to get a marriage equality measure on the 2014 ballot. The measure seeks a vote on whether or not to amend the state constitution to redefine marriage as “a union of two persons” rather than “one man and one woman,” and also includes a statement that religious organizations shall not be required to officiate “any particular marriage or religious rite of marriage in violation of its constitutional right to free exercise of religion.” The initiative requires at least 259,213 signatures of registered Arizona voters; sponsors of the Equal Marriage Arizona campaign hope to gather 400,000 to decrease the chances of a legal challenge to signatures’ validity. If the marriage equality measure makes it onto the ballot in 2014, a vote on the issue would happen concurrently with the gubernatorial election, as well as voting for state constitutional officers and the entire legislature.

Equal Marriage Arizona didn't respond to inquiries about the number of signatures gathered as of press time, but voter poll numbers have been encouraging for same-sex marriage proponents: In May, the Behavior Research Center’s Rocky Mountain Poll found 55 percent of Arizonans approved of allowing same-sex marriage, while a 2012 survey by Public Policy Polling showed 77 percent of the state’s voters support either gay marriage or civil unions. “I think Arizona has enormous promise for LGBT equality, and public opinion is shifting there,” Pizer says. “I do have the impression from some studies that there are more and more people in Arizona that have become exasperated with the reputation the state has acquired.”

Despite its “red state” image, Arizona has had many openly gay and bisexual politicians, including former mayor of Tempe Neil Giuliano, former Arizona state representative Steve May, former U.S. House of Representatives member Jim Kolbe, and Pinal County Sheriff Paul Babeu. And those are just the Republicans. There’s also a drove of Democrats (Senator Robert Meza, former Phoenix city councilman Tom Simplot, congresswoman Kyrsten Sinema, Tucson Senator Paula Aboud, Arizona Rep. Matt Heinz, and former state senator Ken Cheuvront). There’s a seeming swell of support for same-sex marriage from their heterosexual colleagues, and even some avowed opponents of gay marriage have made certain concessions. Arizona Rep. Matt J. Salmon, a staunch conservative and member of the Mormon church, has an openly gay son, Matt R. Salmon. In April, Rep. Salmon told local news station 3TV that he did not support gay marriage – but added that he loved his son and did not believe homosexuality was a choice. The younger Salmon once dated Kent Flake, second cousin of junior U.S. Senator Jeff Flake, whose pioneering Mormon family helped settle their namesake town of Snowflake. In May, Flake said on NBC’s Meet the Press that he still held “to the traditional definition of marriage” and didn’t support gay marriage, but when asked if he thought there would ever be a Republican presidential candidate who did support same-sex marriage, responded, “I think that’s inevitable. There will be one and he will receive bipartisan support, or she will. So I think that yes, the answer is yes.”
 
Lambda Legal attorney Jennifer Pizer knows from experience there will be resistance to marriage equality in the Grand Canyon State. Arizona is home base for powerful social conservative think tank Center for Arizona Policy and Christian legal action group Alliance Defending Freedom. The ADF defines itself as “a servant ministry building an alliance to keep the door open for the spread of the Gospel by transforming the legal system and advocating for religious liberty, the sanctity of life, and marriage and family.” The ADF’s litigation goes beyond Arizona borders; less than 24 hours after California began issuing same-sex marriage licenses following the Supreme Court’s decision to strike down Prop 8, the state’s gay marriage ban, ADF attorneys filed an emergency petition asking the court to halt the weddings on the grounds its decision was not yet legally final, and was pending a 25-day period for the losing side to request a rehearing. The court declined the motion, allowing gay marriages to resume throughout the state.

“I have opposed ADF lawyers in marriage cases, in litigation about domestic partnership protections, and even in a case about access for a lesbian in fertility care,” Pizer says. “The fact they have a base in Arizona has not limited them to the borders of Arizona at all, and their determination to oppose all manner of things that would treat same-sex couples fairly and equally... is, if not legendary, at least notable.”

Alliance Defending Freedom gave PHOENIX magazine access for a profile earlier this year (What Would Jesus Legislate?, June 2013), but their media relations department declined our requests for an interview for this story, politely referring us to the Center for Arizona Policy for comment. Center for Arizona Policy didn’t grant an interview by press time, but CAP president Cathi Herrod told the Arizona Republic after the Supreme Court’s DOMA decision that the ruling meant the battle for same-sex marriage would continue at the state level, and her organization would “continue to fight for ‘traditional marriage.’”

Thomas J. Olmsted, Bishop of the Roman Catholic Dicoese of Phoenix, released a statement within days of the Supreme Court’s rulings on Prop 8 and DOMA. The statement read, in part, “Marriage needs to be strengthened, not redefined. It is important to point out that everyone deserves love and respect, including those who experience same-sex attraction. But society is not served by marriage redefinition. Our children deserve the truth as instilled by one mother and one father in marriage as a family unit.”

Olmsted’s statement goes on to address Arizona’s legal standing on the issue and lament the court’s decisions: “We are fortunate that the Court did not hold that the U.S. Constitution requires states to recognize so-called same-sex ‘marriage.’ Accordingly, Arizona’s constitutional amendment that was approved by voters in 2008 will thankfully remain in place. While we are saddened by today’s tragic Court decisions, we will continue our efforts to promote, strengthen and defend marriage in the face of this grave injustice handed down today.”   

And the Roman Catholic Diocese of Phoenix isn’t just providing lip service. The Human Rights Campaign, a national organization dedicated to achieving civil rights equality, unearthed records of a $1,000 donation last year from the Roman Catholic Diocese of Phoenix to the Minnesota Catholic Conference Marriage Defense Fund, a group leading the ultimately futile efforts to ban same-sex marriage in Minnesota (in July, Minnesota became the 13th state to legalize gay marriage.) Though it was criticized for the contribution, HRC online campaigns manager Dan Rafter says the Diocese of Phoenix didn’t endanger their nonprofit status because they donated to a ballot measure rather than a “political activity.” Ron Johnson, executive director for the Arizona Catholic Conference, told media the donation made a statement regarding the church’s position on marriage, and that polling during the 2008 Arizona campaign showed 80 percent of Catholics favored the traditional marriage of one man and one woman.

Rafter, however, says a more recent poll by the Washington, D.C.-based Public Religion Research Institute showed 59 percent of Catholics support allowing same-sex couples to marry. And within two weeks of Bishop Olmsted’s statement, Pope Francis turned heads on a plane from Brazil to Rome, when he told members of the press, “If someone is gay, who searches for the Lord and has goodwill, who am I to judge? The Catechism of the Catholic Church explains this very well. It says they should not be marginalized because of this [orientation] but that they must be integrated into society.”

A number of Arizona churches, ranging from universalist to episcopalian to the Catholic Church of Antioch, support same-sex couples in their congregations. Mark Elliott Newman, presiding bishop of the Catholic Apostolic Church of Antioch in Phoenix, says “The Catholic Church of the Antioch recognizes same-sex marriages to be spiritually equal to and as sacramentally valid as opposite sex marriages,” adding their clergy is free to officiate same-sex marriages in states where it is legal, but like any clergy in any faith, they are not obligated to officiate gay marriages and may decline to do so.

Newman adds that marriage is not solely a spiritual rite, but a civil contract. “All citizens should be entitled to enter into that contract with the person whom they love, regardless of the person’s gender,” he says. Asked if he’s seen an overall shift in religious views concerning same-sex marriage, Newman cites recent surveys by Pew Research Center revealing large percentages (23 to 56 percent) of Roman Catholics, Protestants, and even Evangelicals who support marriage equality. “I think the supportive trend of the past 12 years will continue,” he says, “and that it’s only a matter of time before almost every progressive Christian denomination, as well most progressive branches of other faith traditions, will support marriage equality, even if only as a civil right.”

For Silvana Salcido Esparza, equality is inevitable. Asked if she ever thought she would see gay marriage legal anywhere in her lifetime, she says, “as much as I thought we would have an African-American in the White House. And we do. And as much as we’re going to have, in my lifetime, a woman president. Oh hell yeah – equal rights for everybody.”

 

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