State officials are asking the U.S. Supreme Court to allow it to cancel insurance benefits for the domestic partners of state and university workers who are gay.
In legal papers filed in Washington, Attorney General Tom Horne said lawmakers should be allowed to deny such benefits because it "furthers the state's interest in promoting marriage.'' The petition also says the move eliminates the expenses and administrative burdens in providing health care benefits to the partners.
Anyway, Horne said, there is no evidence the state intended to discriminate against gays. He said the law treats all unmarried employees the same way, regardless of sexual orientation.
But the 9th Circuit Court of Appeals, which ruled against the state last year, did not see it that way.
In a unanimous opinion, the three-judge panel agreed 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.
Arizona provides various benefits to the dependents of its state and university employees. Until 2008, however, that did not include the domestic partners of its unmarried workers.
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. That rule contained no reference to the gender of the partner.
The rule also requires a showing of financial interdependence as well as an affidavit by the employee affirming that there is a domestic partnership.
In 2009, Napolitano left to become Homeland Security secretary in the Obama administration, elevating Jan Brewer to governor. That allowed the Republican-controlled Legislature to put a provision into the budget limiting who is entitled to dependent coverage, specifically excluding the partners of unmarried employees, whether gay or not.
The Lambda Legal Defense and Education Fund then filed suit on behalf of the gay employees; coverage for unmarried heterosexual workers, not part of the litigation, expired two years ago. That led to last year's 9th Circuit ruling.
In the brief to the high court, Horne said the state had a rational basis for doing what it did.
"The court of appeals' decision ... perverts the application of the rational basis test by ignoring the state's bid justifications for (the law's) classification -- conserving state resources and fund and promoting traditional marriage,'' the legal papers state.
But Horne warned the justices of more dire results if they do not overturn the 9th Circuit ruling, saying it "spurs challenges to other state constitutional and statutory provisions that protect -- indeed, even recognize -- traditional marriage.''
That issue of resources, Horne said, is important, with the state put the cost of providing domestic partner benefits at $5.5 million in the first full year of implementation. The legal papers said repeal of the domestic partner benefits was only one of a series of things lawmakers did to deal with a $1.6 billion budget deficit.
Brewer on Monday cited those financial problems in defending the decision both to repeal the benefits and to seek Supreme Court intervention.
"I was faced with the hugest budget deficit Arizona ever faced,'' she said. "So when we were trying to come together to get our budget balanced, that was one area where we could go in and address.''
And Brewer said the repeal was not discriminatory.
"It wasn't just against just a certain segment of domestic partners,'' she said. "We took it away from all domestic partners.''
Attorneys for the state have argued Arizona is being forced to give some new constitutional rights to gays. But Schroeder, in the 9th Circuit ruling, said that is not the case.
"Rather, it is consistent with long standing equal protection jurisprudence holding that some objectives, such as a bare desire to harm a politically unpopular group are not legitimate state interests," she wrote.
The appellate judges also rejected state arguments that the statute limiting who is a "dependent" promotes marriage, noting that makes no sense "since such partners are ineligible to marry" in Arizona.