11 states back Arizona on gay-partner benefits

'Family values' groups also support denial affecting state workers
2012-08-09T00:00:00Z 2012-08-09T14:07:09Z 11 states back Arizona on gay-partner benefitsHoward Fischer Capitol Media Services Arizona Daily Star
August 09, 2012 12:00 am  • 

PHOENIX - Two organizations that promote "family values" and 11 other states are urging the U.S. Supreme Court to let Arizona deny health care and other benefits to the domestic partners of its gay employees.

In "friend of the court" briefs, those backing Arizona contend the 9th U.S. Circuit Court of Appeals got it wrong when it blocked the state from implementing a 2009 law cutting off the benefits.

Besides questioning whether the appellate judges properly interpreted prior case law, the state's supporters say Arizona has a legitimate financial interest in limiting who is eligible for benefits.

Spread throughout the briefs, though, is the contention allowing the ruling to stand undermines laws linked to the traditional definition of marriage.

Thomas Fisher, the attorney general of Indiana, who wrote the brief for his state and 10 others, said Arizona, in promoting marriage, "channels sexual desires capable of producing children into stable unions that will raise those children in the circumstances that have proven optimal."

And James Campbell, representing the Center for Arizona Policy, said the appellate ruling, unless overturned, could become the basis for the 9th Circuit to eventually rule that laws prohibiting same-sex marriages are illegal.

But Tara Borelli, who is representing gay state workers who are at risk of losing the benefits, called those claims "wildly exaggerated." Borelli, an attorney for the Lambda Legal Defense and Education Fund, said this is a very narrow case.

"It just looks at one issue: As a basic matter of workplace fairness, are gay and lesbian employees entitled to the same compensation as everyone else in the form of family coverage?" she said.

So far, that's the way lower courts have seen it.

In their ruling last year, the appellate court judges said 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 noted there is no other way for gay state and university workers to get those benefits, especially as Arizona voters approved a state constitutional amendment barring same-sex nuptials.

Hanging in the balance is whether gay state and university workers will lose benefits they have had since 2008, when then-Gov. Janet Napolitano ordered state personnel rules rewritten to expand the definition of who is a "dependent" for purposes of state employment.

Under those rules, that included someone living with the employee for at least a year and expected to continue living with that person. The rules, which did not specify the gender of the partner, also required a showing of financial interdependence and an affidavit by the worker affirming there is a domestic partnership.

But in 2009, after Napolitano resigned to take a post in the Obama administration, the Republican-controlled Legislature approved, and Gov. Jan Brewer signed, a state law narrowing the definition and specifically excluding unmarried couples.

The Lambda Legal Defense and Education Fund sued on behalf of gay workers, saying they, unlike heterosexual employees, had no other legal remedy. A federal trial judge, and more recently the 9th Circuit, agreed, enjoining Arizona from cutting benefits, at least for the homosexual workers, while the issue makes its way through the courts; straight employees lost domestic partner benefits last year.

The Supreme Court also is hearing from the Eagle Forum, which describes itself as a defender of traditional marriage. Its attorney, Lawrence Joseph, argues Arizona lawmakers are entitled to deny benefits to domestic partners to save money, citing a $5.1 million annual price tag.

But Joseph also said the state is entitled to foster "responsible procreation and child rearing." He told the justices that this lawsuit "directly questions whether states may limit marriage to husband-wife couples."

Borelli said that's not true.

"If somebody gets family health coverage for a domestic partner, that doesn't mean wedding bells are ringing for them," she said. "Nobody's married."

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