PHOENIX - The gay-marriage issue playing out today at the U.S. Supreme Court could have an impact on an Arizona case the high court has not yet decided on hearing.
The pending Arizona case is a request by the state to allow it to deny health insurance and other benefits to the domestic partners of gay state and university employees.
The high court, however, has put that case on the back burner while it decides the broader issue of whether there is a broad federal constitutional right to marry. (See story, Page A15.)
A federal appeals court previously concluded the Arizona law, passed at the behest of Gov. Jan Brewer shortly after she took office in 2009, is illegal discrimination. The judges based their ruling on the inability of gays to wed in Arizona.
State Attorney General Tom Horne said Monday that if the Supreme Court sides with supporters of same-sex nuptials, the arguments against the Arizona law dissipate and the lawsuit goes away.
"If gays can marry, it makes our case stronger," he said.
Attorney Tara Borelli of Lambda Legal Defense and Education Fund, which is representing gay state workers, agreed the lawsuit against Arizona would become moot because at that point gay couples could make the same decisions as straight couples about whether or not to wed.
But Borelli said it is more likely the justices will take a much narrower approach, one that would affect only a handful of states, or perhaps just California. In that case, she said, Arizona will still have to prove it has a legitimate reason for differential treatment of its employees based on sexual orientation.
Horne, however, said that even if the Supreme Court upholds a ban on gay marriage - and Arizona's own 2008 voter-approved constitutional prohibition remains intact - he still believes Arizona can win its case.
He contends Arizona should be allowed to deny domestic partners benefits to same-sex couples because it "furthers the state's interest in promoting marriage." Plus, the decision to take away benefits was made not out of "animus" toward gays but for strictly economic reasons, he said.
But Borelli pointed out that her lawsuit is based on a claim of denial of equal protection under the law.
She said the reason behind the Arizona statute is legally irrelevant. Instead, Borelli said, the only requirement is that the challengers show that the change in the law was intentional.
The fight is over benefits the state and universities provide to dependents of employees. The most recent figures from the state are 132 state workers are getting benefits for their partners, plus another 98 university employees. The cost is pegged at close to $1.9 million a year.
Until 2008 those benefits went only to those who were legally wed.
That year, at the direction of then-Gov. Janet Napolitano, the Department of Administration rewrote its rules to define who is a "dependent" to include someone living with the employee for at least a year and expected to continue living with that person. The rule also required a showing of financial interdependence as well as an affidavit by the employee affirming there is a domestic partnership.
That rule contained no reference to the gender of the partner.
In 2009, when Brewer became governor after Napolitano left to become Homeland Security secretary in the Obama administration, the Republican-controlled Legislature put a provision into the budget limiting who is entitled to dependent coverage, excluding the partners of unmarried employees, gay or not.
Lambda Legal sued on behalf of the gay employees. It did not sue on behalf of unmarried heterosexual workers because they have the legal option to wed.
In 2011, the 9th U.S. Circuit Court of Appeals acknowledged the state is not obligated to provide health insurance for its workers or their families. "But when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular," Judge Mary Schroeder wrote for the court. She pointed out there is no other way for gay state and university workers to get those benefits.
The justices have put Horne's request to overturn that decision on hold while they decide two broader gay marriage cases. The presumption is that those rulings will clarify legal issues on rights of gays.
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