The partners of gay state and university employees will not lose their health care and other benefits, at least not now -- and possibly not ever.
The U.S. Supreme Court on Thursday refused to overturn a federal appellate court ruling which blocked the 2009 decision by Gov. Jan Brewer and the Legislature to take away the benefits that had been granted by the Janet Napolitano administration. The justices gave no reason for their decision.
But the order follows by one day two significant rulings which 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 as 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 and yet state law precludes them from marrying to become eligible for those benefits.
Thursday's high court action still technically leaves the case alive, as the only thing U.S. District Court Judge John Sedwick issued -- and all the justices left undisturbed -- was a preliminary injunction. That gives the state the chance to ask Sedwick to change his mind after hearing more evidence.
And Brewer still contends 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 in why they saw Arizona's action as discriminatory and illegal -- and why the state's proffered reasons for taking away the benefits do not matter.
The fight is over various benefits, like health insurance, Arizona provides 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 Napolitano, who was the governor, 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 required 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 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.
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 because they have the legal option to wed in Arizona, expired two years ago.
The decision of the Supreme Court to leave the injunction in place drew criticism from Brewer who said in a prepared statement the justices "undercut the ability of duly-elected state officials to make decisions critical to managing the budget.'' The governor 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, in their unanimous ruling last year, found all of that irrelevant.
Judge Mary Schroeder, writing for the court, acknowledged that Arizona 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,'' she wrote. And Schroeder pointed out there is no other way for gay workers to get those benefits in Arizona, with a 2008 voter-approved state constitutional amendment barring same-sex nuptials.
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.
"It would be less expensive to pay women or Jewish employees half of their salary,'' Borelli continued. "But the Constitution doesn't allow that, either.''
Borelli said Thursday's Supreme Court action frees her to now go back to Sedwick and seek a permanent injunction.
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 what were the Pac 10 universities, with UA and Arizona State Universities being the exceptions.