Standhardt v. Superior Court

Citation206 Ariz. 276,77 P.3d 451
Decision Date08 October 2003
Docket NumberNo. 1 CA-SA 03-0150.,1 CA-SA 03-0150.
PartiesHarold Donald STANDHARDT, a single man; Tod Alan Keltner, a single man, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA; Michael K. Jeanes, the Clerk of the Court, Respondents, State of Arizona, Real Party in Interest.
CourtCourt of Appeals of Arizona

Kent & Ryan, P.L.C., By Michael S. Ryan, Candace H. Kent, Phoenix, Attorneys for Petitioners.

Terry Goddard, Arizona Attorney General, By Kathleen P. Sweeney, Assistant Attorney General, Phoenix, Attorneys for Real Party in Interest State of Arizona.

Alliance Defense Fund Law Center, By Benjamin W. Bull, Gary S. McCaleb, Joshua W. Carden, Scottsdale, Attorneys for Amicus Curiae Senator Mark Anderson.

American Civil Liberties Union Foundation, By Pamela K. Sutherland, Legal Director, Arizona Civil Liberties Union/Foundation, New York, Tucson, Amicus Curiae.


TIMMER, Presiding Judge.

¶ 1 Recently, in Lawrence v. Texas, 539 U.S. ___, ___, 123 S.Ct. 2472, 2484, 156 L.Ed.2d 508 (2003), the United States Supreme Court struck a Texas statute that prohibited certain sexual activity between persons of the same sex. The Court reasoned that the statute impermissibly infringed on homosexuals' liberty interest under the Due Process Clause of the Fourteenth Amendment to the United States Constitution to engage in private, consensual sexual activity without state intervention. Id.

¶ 2 In the wake of Lawrence, we are asked to declare that Arizona's prohibition of same-sex marriages, Arizona Revised Statutes ("A.R.S.") sections 25-101(C) and -125(A) (2003), similarly violates the federal and state constitutions. For the reasons that follow, we hold that Arizona's prohibition of such state-licensed unions does not violate Petitioners' rights under either constitution. Therefore, although we accept jurisdiction of this special action, we deny relief to Petitioners.


¶ 3 Days after the Supreme Court issued Lawrence, Harold Donald Standhardt and Tod Alan Keltner, homosexual men in a committed relationship, applied to the Clerk of the Superior Court of Arizona, Maricopa County, for a marriage license. The Clerk denied the application in light of A.R.S. §§ 25-101(C) and -125(A), which, respectively, prohibit marriages between persons of the same sex and define a valid marriage as one between a man and a woman.1

¶ 4 After being turned away by the Clerk, Standhardt and Keltner petitioned this court to both compel the Clerk to issue them a marriage license and declare §§ 25-101(C) and -125(A) unconstitutional under the federal and state constitutions. In light of Lawrence and other authorities, Petitioners argue that these provisions violate their fundamental right to marry and their right to equal protection under the laws, both of which are guaranteed by the federal and state constitutions.


¶ 5 We accept jurisdiction over this special action because there is no equally plain, speedy or adequate remedy by appeal. Ariz. R.P. Spec. Act. 1; Inzunza-Ortega v.Super. Ct., 192 Ariz. 558, 560, ¶ 7, 968 P.2d 631, 633 (App.1998) (accepting jurisdiction to consider special action challenge to clerk of court's refusal to file inmate complaint absent advance payment of fee). Additionally, Petitioners raise "constitutional issues of first impression and statewide importance." Martin v. Reinstein, 195 Ariz. 293, 300-01, ¶ 10, 987 P.2d 779, 786-87 (App.1999).

¶ 6 The State asserts that we should decline jurisdiction because Petitioners can raise their claims in a lawsuit filed with the superior court seeking declaratory and injunctive relief and then appeal any adverse ruling to this court. See Baehr v. Lewin, 74 Haw. 530, 536-37, 852 P.2d 44, 48-49 (1993) (addressing constitutional challenge to Hawaii's marriage laws that originated in lawsuit seeking declaratory and injunctive relief from trial court). However, requiring Petitioners to take this course of action would not assist our resolution of the contested issues. No party asserts that factual findings are necessary to decide these issues, and any appellate review of the superior court's ruling would be de novo. Bertleson v. Sacks Tierney, P.A., 204 Ariz. 124, 126, ¶ 6, 60 P.3d 703, 705 (App.2002) (stating court reviews constitutional challenge to statute de novo). For these reasons, we exercise our discretion to accept jurisdiction.

I. Fundamental right

¶ 7 Petitioners first argue that Arizona's prohibition of same-sex marriages impermissibly infringes on their right to marry each other, which, they contend, is guaranteed as a fundamental liberty interest by the due process provisions of both the Fourteenth Amendment to the United States Constitution2 and Article 2, Section 4, of the Arizona Constitution,3 and assured as a fundamental privacy right explicitly granted by Article 2, Section 8, of the Arizona Constitution.4 The State responds that while Petitioners possess a fundamental right to enter opposite-sex marriages, they do not have an equivalent right to enter same-sex marriages.

¶ 8 Whether entry in state-licensed, same-sex marriages is a constitutionally anointed "fundamental right" is a critical inquiry in deciding the viability of A.R.S. §§ 25-101(C) and -125(A). If participation in such unions is a fundamental right, we must apply a "strict scrutiny" analysis, which permits us to uphold these provisions only if they serve a compelling state interest and are narrowly tailored to achieve that interest. Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (noting substantive due process forbids government infringement on fundamental liberty interest "unless the infringement is narrowly tailored to serve a compelling state interest") (citation omitted); State v. Watson, 198 Ariz. 48, 50, 51, ¶¶ 4, 7, 6 P.3d 752, 754, 755 (App.2000) (acknowledging same test for implicated fundamental rights secured by substantive due process provision of Arizona Constitution).5

¶ 9 If participation in such unions is not a fundamental right, we will assess the constitutionality of §§ 25-101(C) and -125(A) by using a "rational basis" analysis, which requires us to uphold these provisions if they are simply rationally related to a legitimate government interest. Glucksberg, 521 U.S. at 728, 117 S.Ct. 2258 (stating that unless interest is fundamental liberty interest protected by Due Process Clause, law must only be rationally related to legitimate government interests); Large v.Super. Ct., 148 Ariz. 229, 237, 714 P.2d 399, 407 (1986) (using rational basis test under due process provision of Arizona Constitution); State v. Murphy, 117 Ariz. 57, 61, 570 P.2d 1070, 1074 (1977) (applying rational basis analysis in deciding whether statute violated Arizona's constitutional guarantee of privacy).

¶ 10 Thus, to select the appropriate methodology for resolving Petitioners' arguments, we initially determine whether Petitioners assert a constitutionally protected fundamental right under the Due Process Clauses of the federal and state constitutions or the explicit privacy provision of the Arizona Constitution.

A. Due process

¶ 11 We begin with the well-accepted premise that the substantive due process guarantee "provides heightened protection against government interference with certain fundamental rights and liberty interests." Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258. In addition to the freedoms protected in the Bill of Rights, such rights and interests are those "`deeply rooted in this Nation's history and tradition,' ... and `implicit in the concept of ordered liberty,' such that `neither liberty nor justice would exist if they were sacrificed.'" Id. at 720-21, 117 S.Ct. 2258 (citations omitted); see Watson, 198 Ariz. at 51,

¶ 8, 6 P.3d at 755. Thus, using our Nation's history, legal traditions, and practices as a guidepost, the Supreme Court has conferred fundamental-right status on the right to marry, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), and the right to marital privacy, Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).6

¶ 12 Arizona courts have similarly construed Arizona's Due Process Clause. See Maricopa County Juvenile Action No. JT9065297, 181 Ariz. 69, 75, 887 P.2d 599, 605 (App.1994) (recognizing freedom to move as fundamental right "rooted in our ... state constitutional protections of fundamental liberty interests under the doctrine of substantive due process"); Edwards v. State Bd. of Barber Exam'rs, 72 Ariz. 108, 111, 231 P.2d 450, 451 (1951) (stating Arizona's due process provision a corollary to federal Due Process Clause). It therefore follows that fundamental rights protected by the due process provision of our state constitution are those firmly entrenched in our state's history and tradition and implicit in the concept of ordered liberty that may be, or may not be, shared with the rest of the country.

¶ 13 Neither the United States Supreme Court nor any Arizona court has explicitly recognized that the fundamental right to marry includes the freedom to choose a same-sex spouse. Petitioners argue, however, that the Court in Lawrence implicitly recognized such a right. We therefore turn to that case before considering whether such a right otherwise exists.

¶ 14 In Lawrence, the Court held that a Texas statute that prohibited certain same-gender sexual activity violated homosexuals' liberty interests protected by the Due Process Clause. ___ U.S. at ___, 123 S.Ct. at 2484. To reach this decision, the Court overruled Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which had upheld a Georgia sodomy law as applied to homosexual individuals. Lawrence, ___ U.S. at ___, ___, 123 S.Ct. at 2477, 2484. The Bowers Court rejected a due process challenge to the Georgia law, reasoning in pertinent part that homosexual sodomy was not...

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