Ted Simons: Earlier this week, a class-action lawsuit was filed by four Arizona same-sex couples who claim that the state’s ban on same-sex marriages is unconstitutional. Shawn Aiken is an attorney for the plaintiffs. Are you the lone attorney or are there others involved?
Shawn Aiken: My daughter is co-council, Ellen aiken and associates from my office.
Ted Simons: Good enough. So you are very much involved. It's good to have you here.
Shawn Aiken: Thank you.
Ted Simons: It's kind of hard to find some folks on the other side. They're still formulating whatever. That being said, what's going on here? What's the relief petition here?
Shawn Aiken: The relief is for an injunction against all the laws that discriminate against same-sex couples and keep them from getting either married here or having their valid out of state marriages recognized.
Ted Simons: And these are four couples, these are Arizona couples?
Shawn Aiken: Yes, they're four Arizona couples. Three in Maricopa county and one in penal county. Long-time residents.
Ted Simons: These are long time residents but were they married in other states?
Shawn Aiken: Two were, two were not. The two who were were married in California. In . Yes.
Ted Simons: And again, I understand the supreme court ruling on federal benefits is a big factor here. Talk about that ruling, talk about how it factors what you're trying to do.
Shawn Aiken: That ruling came down in June of last year. It's called United States versus Windsor. And in the Windsor case, the U.S. Supreme Court struck the defense of marriage act provision that banned federal benefits to same-sex couples. And our argument here is that for the same reason the federal government could not ban -- could not prohibit couples from receiving those benefits and ban marriage between same-sex couples, so, too, the state cannot do that. So we're asking for an extension really of the Windsor ruling is the way to look at it.
Ted Simons: And Arizona is not the only state, correct?
Shawn Aiken: One of states that currently bans same-sex marriage. And I am aware of cases in about half of those that are challenging those laws. So we're about number 15 or 16 .
Ted Simons: Critics of the move will say that the voters of Arizona did amend the Arizona Constitution to include the definition of marriage being of a man and a woman.
Shawn Aiken: Right.
Ted Simons: Done by the voters, Constitution amended, we can get to the court cases afterward in a second here or so but how do you respond to people who say this has already been addressed and the people have spoken?
Shawn Aiken: The people spoke in2008 . That was before Windsor. And secondly, it's never been the law in the United States that voters can pass discriminatory propositions. So the fact that the voters of Arizona said or did what they did in 2008 doesn't make it any more defensible than what the legislature did in the late 1990s. So I understand the point but the amendment doesn't make it any more defensible.
Ted Simons: Talk about the Court of Appeals ruling, though, in which seemed to uphold the definition and it seemed to say that lawmakers can decide if it's in a state's best interest to keep marriage between a man and a woman.
Shawn Aiken: That was a 2003 case, that was a very narrow ruling. We don't need to get into legal weeds on it, except to say that it came before the state Constitutional amendment. It came before Windsor and it's not an important consideration for us in our case. We're looking solely at the laws, the statutes and the state Constitutional provisions only.
Ted Simons: And again from the other side, the critics will say if you are looking only at statute, why not go to the legislature? Why not get the voters to address this again because it's been done in other states and in other states sometimes, it succeeds?
Shawn Aiken: Because my clients are suffering and without some relief from a court, the legislature's not going to act.
Ted Simons: Right now is it the 10th circuit taking up the Utah case?
Shawn Aiken: They are receiving briefs the Utah case.
Ted Simons: Talk about the Utah case real quickly.
Shawn Aiken: You bet. The Utah case is in federal district court. Judge Robert Shelby struck Utah's ban on same-sex marriage. And that's now on appeal to the th circuit. Briefs will be done in February and the decision will follow I would think in the spring.
Ted Simons: Again, the question Why not wait for that decision?
Shawn Aiken: Well, two reasons. One is the th circuit could reverse and secondly what happens in the th circuit doesn't govern here in the ninth circuit where Arizona is in any event. So I have clients who are looking for relief and looking for an answer and so we're in court here in Arizona.
Ted Simons: Does it seem as though regardless of where it goes, the avenues taken, this is going to wind up in the Supreme Court?
Shawn Aiken: I don't think there's any question about it. All the authorities, people who know this issue a lot better than I do agree that sooner or later, the supreme court is going to have to resolve this issue, namely how will state legislatures and voters in the states be allowed to treat this issue?
Ted Simons: And I mentioned earlier the idea of going to the legislature and some would scoff at that idea but the fact is it is an option. Is that even a consideration as far as folks -- same-sex married couples who are looking for relief but perhaps outside of the courts?
Shawn Aiken: Well, it's certainly an option and I'm probably not the most informed member of the community on that question. I do know in getting ready to file this lawsuit that the question has come up in the Arizona Senate, the last two sessions. I think there was a proposal. But it gets nowhere and so the question is why wait?
Ted Simons: And so what is the time table now for your suit?
Shawn Aiken: We expect responses from the defendants of one stripe or another in February. And for reasons that will be beyond by control, namely a very good judge and very able defendants, I can't say for sure how long it will be to resolution, I hope in . The Utah case was 10 months, complaint to resolved, March to December.
Ted Simons: All right, and again, as far as the 10th circuit is concerned, you're saying ninth circuit is independent of the10th of 10th but you do get an indication, you do get a hint, you do get a suggestion of where this thing is headed?
Shawn Aiken: I think that the law is changing in my clients' favor, there's no question about it and the Utah case is an indication of it.
Ted Simons: Shawn, good to have you here. Thank you. My pleasure.