High court move hurts Arizona gay marriage ban

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By Mike Gertzman By Mike Gertzman

PHOENIX (AP) -- The refusal by the U.S. Supreme Court to hear appeals from five states that want to block gay marriage will likely make it tougher for Arizona's gay marriage ban to survive court challenges, legal experts said Monday.

The court said it would not consider appeals from Wisconsin, Indiana, Oklahoma, Utah and Virginia.

The decision implies that the four conservative justices who support gay marriage bans believe they don't have the votes to prevail, said Paul Bender, a constitutional law professor at the Arizona State University law school.

The lifting of stays in those five states means 30 states now allow gay marriage and suggests those fighting to uphold Arizona's voter-approved ban face an even more lopsided fight.

"If things weren't bad before, they're certainly a lot worse now," Bender said.

Two lawsuits in U.S. District Court challenging Arizona's ban could be decided soon. And the 9th U.S. Circuit Court of Appeals that covers Arizona heard appeals from three other states last month in which judges sharply questioned lawyers defending the bans.

If the 9th Circuit finds gay marriage bans unconstitutional, Arizona's prohibition would automatically fall.

Heather Macre, a lawyer on one of the Arizona cases, said the high court could still take a gay marriage case if one of several other federal appeals court takes a different stance. The Supreme Court is more likely to take cases where there are differing decisions from lower courts.

"They might just be waiting for that," Macre said. "I would just say that we're optimistic about our chances based on everything that's been happening."

Arizona lawmakers approved a state law barring same-sex marriages in 1996, and the law was upheld by an Arizona appeals court seven years later. Voters in 2008 amended the Arizona Constitution to include the ban.

Aaron Baer, a spokesman for the Center for Arizona Policy, which pushed the state ban, said the Supreme Court decision backs the group's argument that courts should stay out of the gay marriage debate.

"I think more than anything today's indecision by the court just highlights the need for the courts to stay out of this and allow for the people to vote and decide their state's definition of marriage," Baer said.

Bender said the high court's decision will resonate as more and more state bans are struck down.

"As days go by it becomes less and less likely that the bans are going to be upheld," Bender said. "And I think the four conservatives on the court understand that and I view this as just raising the white flag."

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State-by-state look at gay marriage bans

State bans on same-sex marriages have been falling around the country since summer 2013, when the Supreme Court ordered the federal government to recognize state-sanctioned gay marriages. The high court Monday cleared the way for more expansion by turning away appeals from five states seeking to prohibit it.

The court's decision effectively made gay marriage legal in 30 states and the District of Columbia. The Supreme Court refused to hear appeals from Indiana, Oklahoma, Utah, Virginia, and Wisconsin in a ruling also affecting six states where same-sex marriages had been put on hold pending high-court review: Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming.

The remaining state bans are all under legal challenges.

A look at where the issue stands across the country:

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-- ARIZONA: In a ruling that called into question Arizona's gay marriage ban, a U.S. District Court judge handed a victory Sept. 12 to a gay man denied death benefits after losing his spouse to cancer.

- ARKANSAS: A state judge in May struck down the state's ban. The state Supreme Court brought marriages to a halt and is weighing state officials' appeal. Same-sex couples are also suing the state in federal court. The attorney general's office has asked that proceedings in both cases be put on hold while the U.S. Supreme Court considers whether to take up a case from Utah.

- FLORIDA: A federal judge declared the state's ban unconstitutional in mid-August, joining state judges in four counties. He issued a stay delaying the effect of his order, meaning no marriage licenses would be issued immediately issued for gay couples.

- HAWAII: Same-sex couples sued in 2011 to overturn the state's ban. A federal court later upheld the ban, but then the Legislature last year legalized gay marriage. A 9th U.S. Circuit Court of Appeals panel heard arguments on the Hawaii case in San Francisco on Sept. 8, along with cases from Idaho and Nevada.

- IDAHO: State officials are appealing a federal judge's decision to overturn the state's ban. The 9th U.S. Circuit Court of Appeals panel in San Francisco heard arguments Sept. 8 along with appeals from Hawaii and Nevada.

- KENTUCKY: Two Kentucky cases were among six from four states heard in the 6th U.S. Circuit Court of Appeals in Cincinnati on Aug. 6. Rulings are pending on recognition of out-of-state marriages, as well as the ban on marriages within the state.

-- LOUISIANA: A parish judge ruled Sept. 22 that the state's ban on same-sex marriage is unconstitutional; the attorney general has appealed to the state's Supreme Court.

- MICHIGAN: The state's ban was overturned by a federal judge in March following a rare trial that mostly focused on the impact on children. The 6th U.S. Circuit Court of Appeals in Cincinnati heard arguments Aug. 6, and a ruling is pending.

--MISSOURI: The state's attorney general, Chris Koster, announced Monday that he wouldn't appeal a Friday circuit court order that Missouri recognize same-sex marriages legally performed in other states. Two other same-sex marriage cases are pending in the state. One is a federal challenge in Kansas City, and the other is a St. Louis case that focuses on city officials who issued marriage licenses to four same-sex couples to trigger a legal test of the ban.

- NEVADA: Eight couples are challenging Nevada's voter-approved 2002 ban, which a federal judge upheld a decade later. The 9th U.S. Circuit Court of Appeals panel heard arguments Sept. 8, along with appeals from Hawaii and Idaho.

- OHIO: Two Ohio cases were argued Aug. 6 in the 6th U.S. Circuit Court of Appeals, and a ruling is pending. In one, two gay men whose spouses were dying sued to have their out-of-state marriages recognized on their spouses' death certificates. In the other, four couples sued to have both spouses listed on their children's birth certificates.

- TENNESSEE: The 6th U.S. Circuit Court of Appeals heard arguments Aug. 6 on an appeal of a federal judge's order to recognize three same-sex couples' marriages while their lawsuit against the state works through the courts. A ruling is pending.

- TEXAS: A federal judge declared the state's ban unconstitutional, issuing a preliminary injunction. The state is appealing to the 5th U.S. Circuit Court of Appeals in New Orleans, which is soon expected to set a date for arguments.

- ELSEWHERE: Other states with court cases demanding recognition of gay marriage are: Alabama, Alaska, Georgia, Mississippi, Montana, Nebraska, North Dakota, and South Dakota. Most lawsuits challenge same-sex marriage bans or ask states to recognize gay marriages done in other states.

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