SPOKESMAN: (talking to gentleman) You have to be able to lift up to 50 pounds.

SPENCER MICHELS: According to Park, the measure was designed not to stop the speaking of Spanish in government offices like this job center, but rather to make sure government actions, laws, decrees, and documents be written only in English. It also declared English the official language of Arizona, a policy now embraced by 22 other states.

ROBERT PARK, Arizonans for Official English: All it requires is that anything that’s binding on the state, any law, regulation, ordinance, whatever the case may be, must be in the English language to be enforceable.

SPENCER MICHELS: Park says he worked to pass the measure because he was disturbed that high levels of immigration put pressure on the government for bilingual ballots, education, and routine business.

ROBERT PARK: Official bilingualism. It’s dangerous. It’s not what we need in this country. We’ve got enough problems with ethnic groups and other people. All we have to do is look to our neighbors to the North in Canada and see what divisions are created by official bilingualism, where you have two official languages. It’s tearing the country apart.

SPENCER MICHELS: Maria-Kelly Yniguez, a native Arizonan whose first language was Spanish, sees no such threat. In 1988, she handled medical malpractice claims at the state Office of Risk Management. She says that for her and her co-workers, the new law made it nearly impossible to serve some of their clients. So she filed suit, claiming the amendment violated her constitutional right of free speech and the rights of those clients who spoke only Spanish.

MARIA-KELLY YNIGUEZ, Former Arizona State Employee: And dealing with them, I had to speak Spanish. I had to negotiate settlements in Spanish, and I also drew up settlement documents in Spanish for them to sign. And I felt that it would be something that I would not be able to do if this amendment became law.

SPENCER MICHELS: Yniguez stopped doing state business in Spanish because she feared she could be sued under the new amendment.

MARIA-KELLEY YNIGUEZ: I am not a crusader. I feel very strongly about a people’s ability to access their government. I feel strongly that those people in government that are able to assist them should be able to do that, whether it’s in English or Spanish or whatever.

SPENCER MICHELS: After Yniguez and her attorney sued, a federal judge declared the amendment unconstitutional. Arizona’s governor refused to appeal the verdict. Then Robert Park and Arizonans for Official English took up defending the law. But the 9th Circuit Court of Appeals agreed with Yniguez, that the measure was unconstitutional, and Park appealed to the U.S. Supreme Court.

JIM LEHRER: Now, more on today’s arguments on this case before the Supreme Court, as well as on another court decision in Hawaii, and to Elizabeth Farnsworth.

ELIZABETH FARNSWORTH: We get that analysis from our regular Supreme Court watcher, Stuart Taylor, correspondent for the "American Lawyer" and "Legal Times." Thanks for being with us, Stuart.

STUART TAYLOR, The American Lawyer: Nice to be here.

ELIZABETH FARNSWORTH: First of all, on what basis did the lower courts decide that the Arizona law violated the constitution?

STUART TAYLOR: Both the federal district judge in Arizona and the U.S. Court of Appeals for the 9th Circuit in a six-five vote held that it violated the First Amendment right to free speech, because it would prevent state employees from communicating in a language they wanted to communicate to, for example, Spanish-speaking constituents, and because it would prevent non-English-speaking constituents from getting the services in an efficient way.

ELIZABETH FARNSWORTH: And what happened in the Supreme Court today?

STUART TAYLOR: Well, it became evident about 12 seconds into the argument that the Supreme Court was not going to decide the constitutional issue on the merits and that they think the case is shot through with procedural defects, and that it doesn’t belong in the Supreme Court, and maybe more importantly perhaps, didn’t belong in the lower courts. The thing–

ELIZABETH FARNSWORTH: Let me interrupt you. If it doesn’t belong in the Supreme Court, why did they take it in the first place?

STUART TAYLOR: I think they took it to say that it didn’t belong in the lower courts either. I think some of them at least and in question, it’s not clear whether a majority of them want to not only to wipe out the appeals court decision and possibly the district court decision also on the ground that procedural defects in the case should have made it clear to them that this was not a case they should be deciding on the merits.

ELIZABETH FARNSWORTH: What do you mean procedural defects?

STUART TAYLOR: There’s about five that I could count. The most obvious one is that the governor–then governor of Arizona Rose Mawford didn’t like this amendment and made it clear she wasn’t really fighting it, wasn’t going to enforce it, and did not appeal the lower court decision striking it down. So Arizonans for Official English, a group that sponsored the initiative in the first place, jumped in and said, well, we’ll appeal, we want to defend this.

And it seems that a clear majority of the Justices of the Supreme Court thought they had no standing to appeal, they’re just citizens; citizens can’t just appeal things because they want to protect a law. You have to have a stake in it. The governor has a stake in it. She’s not appealing–case closed. And that logic might lead them to believe that the 9th Circuit, the Appeals Court, didn’t have jurisdiction over the case either. In addition, Justice Ginsberg said right at the beginning of the argument, and others said as they went along, that the case might well have been moot before the federal district court decided it in the first place.

The reason for that is that while Ms. Yniguez’s reason for suing is she was afraid she could be fired if she spoke Spanish on the job, the state attorney general issued a binding opinion construing, pulling the teeth out of this amendment and construing it contrary to its own language, as allowing people to speak Spanish on the job, for example, if it enables them to serve their constituents better.

ELIZABETH FARNSWORTH: So this is very interesting. The court did not take this to deal with the big constitutional issues, which are debated in the country. There are 20 other states–more than 20 states–that have laws like this. They took it to make a point about the lower courts?

STUART TAYLOR: Yes. That became clear today. It was already becoming a little bit clear when they took it because they didn’t–when they took it, they didn’t say, okay, well, decide this case. They’d say, we want you to brief very carefully these procedural issues of standing in mootness, and it was utterly clear in today’s argument that those are the only issues they’re interested in deciding in this case.

ELIZABETH FARNSWORTH: So what happens next?

STUART TAYLOR: What happens next is that sooner or later, the Supreme Court will issue its decision. It’s not quite clear whether they will just say this case doesn’t belong before us, or whether they will also say, I think they’ll also say it didn’t–the appeal–there was no jurisdiction to appeal, the Federal Appeals Court should never have decided this, and some of them indicated considerable incredulity at what they thought was the reaching out by the Appeals Court to find a way to decide it, to ignore the procedural defects. And they may wipe out the Federal District Court decision too.

ELIZABETH FARNSWORTH: So the law may stand in Arizona.

STUART TAYLOR: The law may stand. And even if they don’t wipe out all those lower court decisions, it still stands in this sense. All that was issued by the Federal District Court was a declaratory judgment: This is unconstitutional. Various justices said clearly today that is not binding on anyone, including the state courts. Justice Ginsberg went so far as to say, so, it’s a "Law Review" article.

ELIZABETH FARNSWORTH: Now, turning to the Hawaii case, a circuit court judge in Honolulu yesterday ruled that the ban on same-sex marriages in the state was unconstitutional and ordered the state to stop denying marriage licenses and then today stayed that order. Explain, please.

STUART TAYLOR: The background is that six gay people, three couples, one male couple and two female couples, tried to get marriage licenses in Hawaii in 1990. Predictably, they were turned down. Hawaii, like all other states, doesn’t give marriage licenses to gay people. They sued. It went to the state Supreme Court, which in 1993 issued a ruling saying we think this is presumptively unconstitutional because it violates the ban against sex discrimination in the state constitution; we’re going to send it back to the lower court to give the state a chance to prove that there’s a compelling need for it anyway.

ELIZABETH FARNSWORTH: And what happens next with this one?

STUART TAYLOR: So they had a trial. The judge said there’s not a compelling need for it. It now gets appealed to the Supreme Court, which will probably do the same. Meanwhile, opponents to the law are organizing to try and get a state constitutional amendment to overrule these decisions.

ELIZABETH FARNSWORTH: And the fact that it stayed means that people cannot go to Hawaii, people–lesbian or gay couples cannot go to Hawaii now and get married, even though the circuit judge made the decision he made yesterday?

STUART TAYLOR: That’s right. And having held it unconstitutional, he quite obviously did that just as a matter of orderly procedure, let’s not jump the gun here until the Supreme Court has the last word, the Hawaii Supreme Court. The U.S. Supreme Court will never hear this case.

ELIZABETH FARNSWORTH: Okay. Well, thank you very much, Stuart.

STUART TAYLOR: Thank you.

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