Attorney General Terry Goddard is siding with a Christian law firm in arguments that gays should not be able to marry in Arizona in part because they can't have children together.
Assistant attorney general Kathleen Sweeney said in a court filing that a recent U.S. Supreme Court ruling voiding laws banning homosexual conduct did not legitimize same-sex marriage.
She also said other court decisions that recognize the fundamental right to marry do not extend to same-sex unions. Sweeney also is arguing to the Arizona Court of Appeals that it should throw out a Phoenix lawsuit by two men who want to marry because the state has an "interest in encouraging procreation." That, she said, gives lawmakers the legal right to limit marriage to a man and a woman "who are the only couples who can create children with one another.''
Goddard said he is legally sworn to defend any laws passed by the Legislature, including the one that makes gay marriage illegal.
But he sidestepped questions about whether he believes in that law.
His legal stance puts him on the same side of the courtroom as the Alliance Defense Fund, a self-described "Christian legal organization that works to defend family values.'' The Scottsdale-based group also has intervened in the lawsuit, which will be reviewed Tuesday by the Court of Appeals.
Harold Donald Standhardt and Tod A. Keltner sued last month after the Maricopa County Superior Court Clerk's Office refused to issue a marriage license. The pair said they have a minister willing to perform the ceremony once a license is issued.
Attorney Michael S. Ryan, who represents the men, contends they have a "fundamental right to marry, the right to privacy and the right to equal privileges and immunities under the Arizona and federal constitutions.''
Ryan cited the recent U.S. Supreme Court ruling, which said states cannot regulate the private acts of individuals and suggested that disparate treatment of gays and heterosexuals may violate equal protection provisions of the U.S. Constitution.
Sweeney said that while gays have a right to form relationships with each other the ruling does not require states to formally recognize those relationships.
The ability of heterosexuals to create a child "who is biologically related to both of them'' also plays a role in the state's defense of its ban on gay marriage.
"No other relationship has this potential,'' Sweeney argued. "It is primarily for this reason that marriage has been regulated and rewarded throughout history.''
Sweeney said that though Arizona allows marriage of opposite-sex couples who are unable to have children, advancements in medical science may eventually make procreation possible.
"Same-sex couples, in contrast, will never be able to decide to have children with each other or become able to do so,'' she said.
Goddard acknowledged that gay couples do have children, although the offspring are biologically related to only one parent. He also conceded that if doctors are someday able to help a gay couple have a child with the genetic material of both parents that could undermine the state's argument.
Sweeney also argued that limiting marriage to heterosexuals protects the welfare of children by protecting the family.
"The state could also have rationally believed that by requiring opposite-sex couples to make a public commitment to obtain the benefits of marriage, it could encourage married couples who did have children together to remain committed to one another and to their children so that the children could be raised in a family unit,'' she wrote.
Similar arguments are being presented to the court by Benjamin Bull, attorney for Alliance Defense Fund. But Bull goes even further, saying that if gays are allowed to marry then state prohibitions on polygamy and even relatives getting married also could fall.
Bull said that while the strength and integrity of marriage already has been undermined by other trends, including the "sexual revolution'' and the ease of divorce, "such considerations should make states all the more wary of subjecting the institution of marriage to the additional risks of the radical and untested inclusion of same-sex couples.''