Arizona Department of Corrections Adopts Same-Sex Marriage Policy
by Michael Brodheim
Corrections officials in Arizona have changed a policy related to prisoner marriages to allow same-sex unions, now that such marriages are legal in the state. However, prisoners are still not permitted to marry one another, either as traditional or same-sex couples.
Prisoners’ rights advocate Donna Hamm, director of Tempe, Arizona-based Middle Ground Prison Reform, wrote to Corrections Director Charles L. Ryan to lobby for changes in the prison system’s marriage policy.
“The current Arizona Department of Corrections policy, Director’s Order 904, at 904.07, 1.2.1, limits marriage to ‘a member of the opposite sex,’” Hamm stated. “This policy is inconsistent with the State of Arizona which now recognizes same-sex unions. In addition, the Department’s policy on marriage is illegal at 18.104.22.168, which states that an inmate may not marry another inmate.”
Hamm said she was not seeking changes that would allow two prisoners who are married to each other to be housed together, but that the benefits of marriage go far beyond cohabitation.
“The protections afforded to inmates with respect to the right to marry include the emotional, psychological, societal, legal and spiritual aspects of marriage, independent of physical contact,” she noted. “Absent compelling, highly individualized state interests applicable to a particular marriage application, the Department may not restrict inmate marriages, including inmate-to-inmate unions.”
The Arizona Department of Corrections changed its policy on prisoner marriages on November 19, 2014 by removing the language “member of the opposite sex.” Other aspects of the policy remain the same, including requirements that prisoners cannot wed other prisoners, and must not have any pending disciplinary charges or be housed in “detention units, disciplinary isolation or investigative ‘lock up’ detention.” Hamm indicated that such restrictions may be subject to legal challenges.
The first same-sex marriage between prisoners reportedly took place in Hawaii on December 19, 2014, when Terann Pavao, 28, and Totie Tauala, 40, were wed at the Women’s Community Correctional Center in Kailua. Acting Warden Eric Tanaka said plans for the event were not elaborate.
“They’ll be in their prison garb,” Tanaka said prior to the ceremony. “They’ll be an officiate there that they arranged to come in and they have two witnesses and of course, facility staff on-hand to witness what is happening. They will also be allowed to exchange wedding bands, but there’s no fruit punch or cake or anything like that.”
Pavao and Tauala will receive no special treatment and will not be housed together or permitted intimate contact, Tanaka stated. Pavao is serving time for assault, theft and a variety of drug-related convictions, while Tauala is incarcerated for manslaughter.
California prisoners gained the right to marry same-sex spouses on August 30, 2013, but the California Department of Corrections and Rehabilitation (CDCR) did not extend that right to let one prisoner marry another.
CDCR policy allows prison chaplains to refuse, on religious grounds, to perform a same-sex marriage, but in such cases “another person who is lawfully authorized to perform marriages may be substituted.” The policy also refers to marriage being between a “bride” and “groom,” but those terms are now interpreted in a gender-neutral fashion. A number of other state prison systems have adopted policies that allow same-sex unions between prisoners and non-prisoners. [See: PLN, July 2014, p.38].
At least one state, however, is going to extreme lengths to prevent prisoners from participating in same-sex marriages. According to news reports in June 2015, the Oklahoma Department of Corrections has halted all prisoner marriages as a means of stopping same-sex unions. This is an apparent violation of the Supreme Court’s ruling in Turner v. Safley, 482 U.S. 78 (1987), which struck down a policy that prohibited prisoners from marrying unless they had permission from the warden.
“People who are incarcerated in Oklahoma are still humans and still have certain rights, and they didn’t surrender their right to love someone or have a legally recognized marriage,” said Toby Jenkins with Oklahomans for Equality.
On June 26, 2015 the U.S. Supreme Court issued a landmark decision in consolidated cases challenging bans on same-sex unions in Ohio, Tennessee, Kentucky and Michigan. In a 5-4 ruling the Court legalized same-sex marriages nationally; as a result, prison systems in all 50 states will now need to address unions between prisoners and same-sex spouses. See: Obergefell v. Hodges, U.S. Supreme Court, Case No. 14-556; 2015 U.S. LEXIS 4250.
Sources: New York Daily News; Sacramento Bee; www.dailymail.com.uk; Memorandum, California Department of Corrections and Rehabilitation (August 30, 2013); http://blogs.findlaw.com; www.hawaiinewsnow.com; www.azcentral.com; http://gaymarriage.procon.org; www.advocate.com; The New York Times
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Related legal case
Obergefell v. Hodges
|Cite||U.S. Supreme Court, Case No. 14-556; 2015 U.S. LEXIS 4250|