Arizona Together v. Brewer – 1/12/2007

January 18, 2007

Arizona Supreme Court Refines “Separate Amendment” Test for Proposed Constitutional Amendments and Finds Proposition 107 (Defining Marriage) Would Constitute a Single Amendment.

Proposition 107 (“Prop. 107”), which was rejected by Arizona voters in November 2006, had proposed to define marriage as a union between one man and one woman and to prohibit granting legal status similar to marriage to any unmarried persons. Opponents of the measure had sought to keep Prop. 107 off the ballot on the ground that it violated the “separate amendment” rule of Article 21, Section 1 of the Arizona Constitution. The superior court rejected that challenge, and the Arizona Supreme Court on August 31, 2006, affirmed the judgment of the superior court. This opinion by the Supreme Court explained the bases for that decision.

The Court held that the separate components of Prop. 107 did not constitute separate constitutional amendments because, under the “common purpose or principle” test first articulated by Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934), the separate provisions were topically related and sufficiently interrelated that they logically should “stand or fall as a whole.” The Court abandoned the inquiry from previous cases asking whether a voter supporting part of the proposition would reasonably be expected to support the other parts. That inquiry, the Court concluded, “has shed little light” on whether a common purpose or principle sufficiently unites separate parts of a proposed amendment. The Court rejected as contrary to precedent and constitutional history an argument that the “separate amendment” rule should be viewed, not as substantive, but as merely a procedural rule to guide the preparation of ballots for constitutional amendments.

Chief Justice McGregor wrote the opinion for the unanimous Court; Justice Hurwitz separately concurred.