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By Anonymous Mike, pseudonymously.

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Friday, October 10, 2008
Thoughts on Same Sex Marriage

On a day when the Connecticut Supreme Court has legalized same sex marriage, some thoughts on the ramifications here in Arizona.

First Connecticut becomes yet another state where the courts have cited equal protection to strike down civil unions as a separate and unequal institution. I haven't gone through the language of opinion with a fine-tooth comb, but as with California it seems that Connecticut by creating a "marriage lite" has instead paved the way for same sex marriage.

I have always thought the idea of civil unions were a bit silly; trying to dress up something as anything but marriage and it seems that the fiction has fallen apart. Civil unions seem to now be merely a way station on the march to same sex marriage. Not to say that is bad or good thing, just so that we are clear that the middle ground in this debate is falling away.

Second, Espresso Pundit had a post this past summer on the 2003 Standhardt case where a gay couple's attempt to over turn the law banning same sex marriage in Arizona failed to clear the Arizona Court of Appeals. Furthermore, the Arizona Supreme Court not only refused to hear the case but declined to comment on it.

As you probably now, Arizona has a ballot initiative for next month which would ban same sex marriage through the state's constitution as opposed to statute. Opponents of the measure have argued in part that the measure is unnecessary given that the Arizona Supreme Court upheld the lower court's ruling and therefore the statue banning same sex marriage. However Espresso Pundit makes clear as you walk back the cat, the Arizona Supreme Court only upheld Standhardt, and that the lower court did not so much as uphold the statutory ban on same sex marriage as to indicate that it was not yet time to overturn it.

That phrase "not taken sufficient root" is judicial code talk for "the state's not ready yet." After all, "taking root" is an ongoing process and forms an integral part of "our evolving understanding of liberty" to which the Petitioners referred.

In the future, supporters of same-sex marriage will argue to the courts that same-sex marriage has indeed become "sufficiently rooted."

Indeed if you go read Standhardt that's the point made. The question is what is "sufficiently rooted?" Is the decision by Governor Napolitano to extend domestic partner benefits to state employees? Cities and other political subdivisions following suit? Would a defeat of the marriage inititative next month, combined with a similar defeat in 2006, be construed as preparing the ground?

As an aside, keep in mind how the 2006 campaign to defeat that ballot initiative was understaken. Rather than drumming up no votes by pointing to the desirability of same sex marriage or ending perceived discrimination, it instead worked on the other provision of the initiative which banned any sort of legal status for unmarried couples. The iniaitive lost and the anti-initiative forces immediately changed tack and claimed the defeat as a clear victory for same sex marriage.

Once again, for or against, let's be clear... if this year's proposal goes down like in 2006, don't be surprised if there is another legal case brought to overturn the ban on same sex marriage based on the idea that the concept is now sufficiently rooted in Arizona.