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New pro-gay marriage ruling could force Arizona decision

PHOENIX — A Tuesday ruling that struck down gay marriage bans in Idaho and Nevada could soon force Arizona to lift its ban.

The 9th U.S. Circuit Court of Appeals on Tuesday upheld gay marriage in Idaho and Nevada, saying bans on the practice in those states violate same-sex
couples’ equal protection rights. In its ruling, the court said laws that treat
people differently based on sexual orientation are unconstitutional unless there
is a compelling government interest.

The court also has jurisdiction in three other states that still have marriage
bans in place: Alaska, Arizona and Montana. Lawsuits challenging bans in those
states are still pending in lower courts and have not reached the 9th Circuit.

The 9th Circuit ruling
comes a day after the nation’s top court effectively legalized gay marriage in
11 more states
, for a total of 30, when it rejected a set of appeals.

While Monday’s ruling moved Arizona’s ban to thin ice, Tuesday’s may have been the final crack. Arizona is in the 9th District, meaning the court’s decision could apply in the state.

However, the state’s gay marriage decision is still in a lower court. Should Arizona Attorney General Tom Horne opt to drop the state’s defense, gay marriage would be legalized because the 9th Circuit’s ruling would apply.

“It really is whether or not they continue to the defend the ban in the face of this decision that kind of defines the next step for all of us,” said Heather Macre, one of the attorneys working on removing Arizona’s ban on gay marriage.

Stephanie Grisham with the Arizona Attorney’s Office said they need to review Tuesday’s 9th Circuit ruling before deciding on the Arizona cases.

“We need to review that opinion carefully and thoroughly so we can accurately determine what the implications are for the pending Arizona cases,” she said.

Despite Arizona not yet deciding on its own gay marriage cases, Grisham said Horne can appeal the 9th Circuit’s decision to the Supreme Court.

Arizona State University law professor Paul Bender said he thinks the Supreme Court has not taken up the case because four conservative judges realize they can’t get a fifth vote to uphold gay marriage bans.

“They know that gay marriage is going to go into effect in all the other states and I think that shows that the people on the court who are opposed to gay marriage have sort of given up,” he told KTAR News’ Bruce St. James and Pamela Hughes on Monday. “They know that the court is going to uphold gay marriage and strike down the bans.”

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.

KTAR’s Martha Maurer and the Associated Press contributed to this report.