Two organizations that promote "family values'' and nearly a dozen 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 three separate "friend of the court'' briefs, those backing Arizona contend that the 9th U.S. Circuit of Appeals got it wrong when the judges there blocked the state from implementing a 2009 law cutting off the benefits.
Some of the arguments are based on questions of whether the appellate judges properly interpreted prior case law. And the state's supporters also say Arizona has a legitimate financial interest in limiting who is eligible for benefits.
Spread throughout all the briefs, though, is the contention that allowing the ruling to stand undermines laws linked to the traditional definition of marriage. Thomas Fisher, the solicitor general of Indiana, who wrote the brief for his state and 10 others, said the state, 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. That is when then-Gov. Janet Napolitano got her Department of Administration to rewrite the state's personnel rules 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 that 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.
Aside from the input from the 11 other states, the Supreme Court also is hearing from the Eagle Forum which describes itself as a defender of traditional marriage. Its attorney, Lawrence Joseph, argued to the court that Arizona lawmakers are entitled to deny benefits to domestic partners.
One issue, he wrote, was to save money, citing a $5.1 million annual price tag. But Joseph also said the state is entitled to foster "responsible procreation and childrearing.'' 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.''
But Campbell, an attorney for the Alliance Defending Freedom which represents the Center for Arizona Policy, said that misses the point. He said the 9th Circuit ruling hinged on the legal inability of gays to marry in Arizona.
"If it's irrational to give that benefit to only legal spouses and not to an unmarried partner or friend, then it is also irrational to give other benefits to legal spouses and not to an unmarried friend or partner,'' said Campbell.
And it does not stop there. Campbell said if that becomes the precedent, it paves the way for the appellate court to say there is no rational basis for limiting marriage solely to those of the opposite sex.
In the multi-state legal brief, Fisher specifically asked the high court to intercede now rather than leave the injunction in place while the issue of domestic partner benefits is litigated.
"Delaying resolution of the state-benefits question would only harm the robust national debate over marriage policy,'' he wrote. More immediately, he said it could affect statutes and policies across the nation.
He argued that other states could be forced to alter their laws regarding domestic partner benefits in response to what the 9th Circuit already has decided. Fisher said if the appellate ruling is eventually overturned, "reverting to the traditional benefits model would upset many citizens' settled expectations.''