Supreme Court ruling preserves benefits

2013-06-28T00:00:00Z Supreme Court ruling preserves benefitsHoward Fischer Capitol Media Services Arizona Daily Star
June 28, 2013 12:00 am  • 

PHOENIX - The partners of gay state and university employees will not lose their health-care and other benefits, at least not now.

On Thursday, the U.S. Supreme Court refused to overturn a federal appellate court ruling blocking the 2009 decision by Gov. Jan Brewer and the Legislature to take away benefits that were granted by the Janet Napolitano administration. The justices gave no reason for their decision.

The order follows, by one day, two significant rulings that were victories for gay-rights advocates, including a sweeping decision prohibiting the federal government from refusing to honor the decisions of states to decide who is legally wed.

Thursday's ruling is far from being as comprehensive for gay rights in Arizona, It affects only 295 state and university employees.

But the action advances the argument that the state cannot discriminate against gays - especially when they are being denied benefits offered to married employees, even though state law precludes them from marrying to become eligible for those benefits.

Thursday's high court action still technically leaves the case alive, as U.S. District Judge John Sedwick issued only a preliminary injunction, which the high court left undisturbed.

That gives the state the chance to ask Sedwick to change his mind after hearing more evidence.

Brewer asserts that the decision to cut benefits for domestic partners, both gay and straight, was motivated only by a desire to save money for the state and not any animus toward gays.

But the judges of 9th U.S. Circuit Court of Appeals, in siding with Sedwick, were particularly clear as to why they saw Arizona's action as discriminatory and illegal - and why the state's reasons for taking away the benefits do not matter.

The fight is over benefits like health insurance, which Arizona provides to the dependents of its state and university employees.

Until 2008 that did not include the domestic partners of its unmarried workers. But that year then-Gov. Napolitano ordered the state administrative rules on who is a "dependent" revised to exclude any reference to the gender of the partner, along with other changes, opening the door to coverage for gay couples.

In 2009, after Napolitano left to become Homeland Security secretary, the Republican-controlled Legislature put a provision into the budget limiting who is entitled to dependent coverage, specifically excluding the partners of unmarried employees, whether gay or not.

Lambda Legal Defense and Education Fund sued on behalf of the gay employees. Coverage for unmarried heterosexual workers, not part of the litigation because they have the legal option to wed in Arizona, expired two years ago.

Brewer criticized the Supreme Court's decision to leave the injunction in place, saying in a prepared statement the justices "undercut the ability of duly-elected state officials to make decisions critical to managing the budget."

She said the decision to cut benefits to domestic partners was made "solely out of financial need," citing the state's deficit at the time.

"The action I took with the Legislature was driven by financial necessity rather than a social agenda," she said.

Attorneys for the state made those same arguments to the 9th Circuit. But the judges there unanimously ruled against the state, finding the state is not required to provide health insurance for workers and their families, but if it does, "it may not do so in an arbitrary or discriminatory manner."

Tara Borelli, attorney for Lambda Legal, said Arizona cannot use its financial problems as an excuse to scale back benefits.

"The courts have been very clear that government can't economize at the expense of a vulnerable minority group," she said.

The 2008 extension of benefits to domestic partners had strong backing from the University of Arizona, with Robert Shelton, who was president at the time, saying it will help recruit and retain workers.

In a letter to the Department of Administration, Shelton said most Fortune 500 companies offer such benefits, as do 60 of what U.S. News and World Report says are the top 125 institutions of higher learning.

Shelton said the same is true of eight of the then-Pac 10 universities, with the UA and Arizona State University being the exceptions.

"The action I took with the Legislature was driven by financial necessity rather than a social agenda."

Gov. Jan Brewer

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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