Same-sex marriages will be available in California in less than two weeks, but gay and lesbian couples from Arizona will be on shaky legal ground if they take the short drive west to tie the knot.
New gender-neutral marriage licenses will be issued starting on June 17, a month after the California Supreme Court ordered state and local officials to sanction same-sex unions. Because California doesn’t impose residency restrictions or waiting periods, anyone can get married there.
But Arizona law both bans same-sex marriages and declares that marriages prohibited in Arizona are void in Arizona if performed elsewhere.
Massachusetts has been the only other state to allow same-sex marriages, and other states’ recognition of those unions is being decided state by state. Rhode Island’s top court, for example, ruled that a same-sex couple married in Massachusetts could not divorce in Rhode Island.
Another complication: an initiative to amend the California Constitution to ban same-sex ballot has already qualified for that state’s November ballot. If it passed, the state’s ban on same-sex marriage is back on again.
That leaves Arizona advocacy groups debating the potential impact of California’s move, event while gay marriage opponents await a key vote by legislators to put a constitutional amendment banning same-sex marriage on the November ballot.
The reality is that same-sex couples know that the California change has no legal effect in Arizona, said Equality Arizona spokesman Sam Holdren. “They may go for the emotion effect, the spiritual effect of it.”
Supporters of the proposed Arizona amendment predict that same-sex couples will go to California, get married and subsequently file legal challenges in Arizona courts in attempts to get their unions recognized.
Those challenges could be based on issues ranging from adoption and tax breaks to child custody and divorce, representatives of groups supporting the amendment said.
“I think we’re going to see a lot of creative lawyers with a lot of creative litigants figuring out challenges,” said Cathi Herrod, Center for Arizona Policy president.
Arizona’s 1996 law banning same-sex marriages was upheld by the courts, but they didn’t decide if out-of-state marriages have to be recognized, said Glen Lavy, Alliance Defense Fund general counsel. “So that means the only way for Arizona to avoid a state law challenge is to pass a constitutional amendment here,” Lavy said.
Arizona voters rejected a state constitutional amendment banning same-sex marriage in 2006. That version included wording that could have stopped government from recognizing civil unions of same-sax couples.
Gay-rights advocates point to the law already banning same-sex marriages. They said the other side is engaging in scare tactics and trying to drum up support for the proposed Arizona constitutional amendment so they can target domestic partner benefits. “They’re being disingenuous,” said Kathie Gummere, a lesbian-rights activist.
Here are Key provisions of Title 25- Marital and Domestic Relations of the Arizona Revised Statutes:
It is declared that the public policy of this state and the general purposes of this title are:
1. To promote strong families;
2. To promote strong family values.
25-101. Void and prohibited marriages
A. Marriage between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the one-half as well as the whole blood, and between uncles and nieces, aunts and nephews and between first cousins, is prohibited and void.
B. Notwithstanding subsection A, first cousins may marry if both are sixty-five years of age or older or if one or both first cousins are under sixty-five years of age, upon approval of any superior court judge in the state if proof has been presented to the judge that one of the cousins is unable to reproduce.
C. Marriage between persons of the same sex is void and prohibited.
25-112. Marriages contracted in another state; validity and effect
A. Marriages valid by the laws of the place where contracted are valid in this state, except marriages that are void and prohibited by section 25-101.
B. Marriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state, except marriages that are void and prohibited by section 25-101.
C. Parties residing in this state may not evade the laws of this state relating to marriage by going to another state or country for solemnization of the marriage.