Two top state officials are asking the full 9th U.S. Circuit Court of Appeals to let Arizona deny benefits to the domestic partners of its gay state and university employees.

Legal papers filed by Attorney General Tom Horne contend that a three-judge panel of the appellate court got it wrong when it concluded earlier this month that it is illegal for the state to provide health care and other benefits to the partners of married workers while refusing to do the same for same-sex couples. He said the state is allowed to make such distinctions.

Horne, who filed the appeal on behalf of Gov. Jan Brewer, also said it is legally irrelevant that Arizona voters constitutionally banned gays from getting wed, even if that means that, unlike same-sex couples, they have no legal way to get benefits for their partners. The legal papers his office filed also charge that the ruling of three-judge panel “attempts to indirectly invalidate Arizona’s marriage laws,” something the state contends the U.S. Supreme Court has ruled is beyond the purview of federal judges.

And Brewer, in a prepared statement said the appellate court was “bent on installing a social agenda.”

Hanging in the balance is whether gay 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 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 three-judge panel of the 9th Circuit, agreed, blocking the state from cutting benefits, at least for the homosexual workers; straight employees lost domestic partner benefits last year.

Horne said Wednesday the state does not discriminate based on sexual orientation, noting the same insurance is available to gay employees as for their straight coworkers. He said, though, lawmakers can decide to spend taxpayer dollars extending those benefits only to partners of workers who are legally wed.

“Why the heck can’t the domestic partner get a job and get health care coverage?” he asked. Horne said lawmakers do not have to ask the same question of spouses.

“Sometimes the spouse is a mother who is raising children and wants to be home with the children,” he explained.

Nor was he dissuaded by the fact that some gay couples also are raising children.

“I think that may be an argument to be made to the Legislature,” Horne said. “But I don’t like the idea of federal judges dictating to the state what it can spend money on, and what it can’t.”

Judge Mary Schroeder, who wrote the appellate opinion earlier this month, agreed that Arizona lawmakers are free to decide whether to spend tax dollars to provide or not provide benefits to workers.

“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.

In the state’s legal brief, though, Horne defended the distinction.

“Married state employees have a legal responsibility to care for their partners, whereas no such duty is imposed on domestic partners,” the legal papers say.

According to the Department of Administration, there are 226 employees of the state, the University of Arizona and Arizona State University who are receiving same-sex domestic partner benefits. He said the annual cost is slightly more than $5 million a year.

Northern Arizona University, which is subject to the same law — and the same injunction — has a separate insurance program. Cost figures were not immediately available.

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