Horne seeks to lay down the law on civil unions

2013-04-18T00:00:00Z Horne seeks to lay down the law on civil unionsHoward Fischer Capitol Media Services Arizona Daily Star
April 18, 2013 12:00 am  • 

PHOENIX - Hoping to short-circuit future lawsuits, Attorney General Tom Horne wants to tell attorneys from cities around the state exactly what he thinks their communities can - and cannot - offer to domestic partners of their residents.

Horne has invited the lawyers to a closed-door meeting at the end of the month at his Phoenix office. Those who cannot make the trek to Phoenix can participate by phone.

Horne intends to identify the limits of city authority, but said he's also willing to listen to the other side.

"They may have things to tell me I haven't thought about," he said.

The meeting follows a decision by Bisbee council members to offer "civil unions" to their residents.

That ordinance was rescinded after Horne threatened to sue. Council members have directed their staff to recast it, this time in a way designed to avoid conflicts with state law and a legal fight with the attorney general.

Horne has sidestepped the question of whether a city can actually offer civil unions. While the Arizona Constitution defines marriage as solely between one man and one woman, voters defeated a more wide-ranging measure that would have outlawed civil unions.

Horne said where Bisbee went wrong is in saying civil unions gave those parties the same rights in areas like community property and inheritance.

Those are rights defined in state statute, he said. Lawmakers have reserved those rights to couples who are married.

"They cannot violate state law," Horne said.

What they can do, he said, is act in areas where the Legislature has not.

For example, he cited ordinances in some cities which require hospitals to grant the domestic partners of patients the same visitation rights they would a spouse. "There's no state law pertaining to that," Horne said.

Cathi Herrod, president of the Center for Arizona Policy, which has been at the forefront of seeking to limit the rights and privileges of marriage solely to those who can legally wed, agrees.

She said Tucson and Phoenix allow unmarried individuals living together who have signed up with a domestic partnership registry to purchase family passes for the municipal swimming pools or the city zoo. Herrod, who is an attorney, said that appears to be entirely within the jurisdiction of the city and therefore not pre-empted by state law.

Herrod said her organization does not believe in domestic partnerships or civil unions, calling them "marriage counterfeits." But she pointed out that the Legislature has, in fact, already spelled out places where they will recognize domestic partnerships, even without city action.

One of these laws deals with who gets to make a medical decision for someone who is incapacitated and has not previously given someone else a medical power of attorney.

Top priority goes to the patient's spouse, followed by an adult child, a parent and then the patient's domestic partner. Brothers and sisters fall lower in the pecking order.

Similarly, another law allows a domestic partner, in the absence of others with higher standing, to donate a patient's body or organs.

However, potential pitfalls remain. Pete Wertheim, spokesman for the Arizona Hospital and Healthcare Association, said it remains untested legally whether hospitals are required to honor that.

He said hospitals generally honor the requests of patients of who gets to visit and even who can see their medical records. But Wertheim said that can't happen when a patient is in a coma, not to mention potential problems arising out of different jurisdictions having different rules.

On StarNet: Go to azstarnet.com/politics to read more about local and state government and political news.

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

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