Wednesday, September 24, 2008

The Arizona Marriage Amendment -- A little historical perspective

One of the more common criticisms of Proposition 102 seems to be that it isn't needed. In examining this criticism it is helpful to have a little historic perspective. Previously, in 2006, there was another ballot measure known then a Proposition 107. That measure was significantly different than the present Proposition 102 and was even more vigorously opposed. The opponents of the measure initially fought Proposition 107 in the courts, taking a case to the Arizona Supreme Court. That case was:

ARIZONA TOGETHER, an unincorporated association; Kaitlin Meadows; Albert Lannon; Amalia Antonioli; Frank Montoya; Al Brezney; Maxine Piatt; Paul Knobbe; Teresa Hewitt; Glen Cromer; and Rebecca Miller, Plaintiffs-Appellants,
v.
Janice K. BREWER, in her official capacity as Secretary of State for the State of Arizona, Defendant-Appellee, and Protect Marriage Arizona, an unincorporated association, Real Party in Interest.

At that time the opponents tried to prevent the measure from even being placed on the ballot. Chief Justice McGregor summarized the history of the case and the Court holding as follows:

"The question presented is whether Proposition 107, a constitutional amendment proposed by voter initiative, complies with the separate amendment rule of Article 21, Section 1 of the Arizona Constitution. Proposition 107 would amend the constitution by adding a new Article 30 defining “marriage” and prohibiting the state and its political subdivisions from creating or recognizing a legal status for unmarried persons similar to that of marriage.The appellants, opponents of Proposition 107, brought this action pursuant to Arizona Revised Statutes (A.R.S.) section 19-122.C (2002) to enjoin the Secretary of State from placing the measure on the ballot in the 2006 general election. Appellant Arizona Together argues that Proposition 107 does not constitute a single amendment, but rather is a composite of three unrelated provisions. In particular, Arizona Together asserts that, if enacted, Proposition 107 not only would define marriage but also could (1) prohibit same sex marriages, (2) prohibit civil unions and domestic partnerships, and (3) prohibit the state and its political subdivisions from conferring benefits and rights on domestic partners. After a hearing, the superior court concluded that Proposition 107 constitutes a single amendment in light of the test established by this Court in Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934). On August 31, 2006, we entered an order affirming the judgment of the superior court, with this opinion to follow."

This decision came after the ballot measure had already been defeated at the polls.

The Supreme Court went on to note that "No section of the Arizona Constitution presently purports to define marriage." The Court noted that had it passed Proposition 107 would "operate as the only provision of the constitution addressing this subject." In other words there are no other similar provisions in Arizona. The wording of the present Proposition 102 is similar to the opening phrase of Proposition 107. So, in response to the criticism that there is no need of the new law, we have the statement of the Arizona Supreme Court that no similar provision exists in the Arizona State Constitution.

Judge McGregor went on to write:

"Our focus upon the treatment afforded by the Arizona Constitution leads us to conclude that Arizona Together's reliance on various Arizona statutes concerning marriage and domestic partner rights does not advance our inquiry. Merely showing that the legislature has addressed an issue in various places in Arizona's statutory scheme fails to demonstrate that the specific concerns addressed by each statute would not constitute a “single subject in constitutional amendments.” See id. at 397, 265 P.2d at 452 (emphasis added). Because Arizona has not historically treated the definition of marriage in the state constitution, we find little guidance from this factor."

In other words the Supreme Court did not consider the existence of other statutory provisions to be relevant to the issue. Without a constitutional amendment defining marriage the Arizona Supreme Court would be free to consider whatever other issues it wished in an analysis of the constitutionality of the present statutes. It is clear that Proposition 102 is needed to prevent the Arizona Courts from doing the same thing done by the California Court.

If you would like to read the entire Arizona Supreme Court decision, see:

http://www.supreme.state.az.us/opin/pdf2007/cv060277apel.pdf

More later.

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