The fight playing out today at the U.S. Supreme Court could impact an Arizona case the high court has not yet decided whether to hear.
Pending before the justices is a request by the state to allow it to deny health insurance and other benefits to the domestic partners of gay state and university employees.
A federal appeals court previously concluded the law, passed at the behest of Gov. Jan Brewer shortly after taking office in 2009, is illegal discrimination. The judges based their ruling on the inability of gays to wed in Arizona.
The high court, however, has put that case on the back burner while it decides the broader issue of whether there is a broad federal constitutional right to marry. That's the case playing out in Washington today.
But Attorney General Tom Horne said Monday if the Supreme Court sides with supporters of same-sex nuptials, the arguments against the Arizona law dissipate and the lawsuit goes away.
"If gays can marry, it makes our case stronger,'' he said.
Attorney Tara Borelli of Lambda Legal Defense and Education Fund, which is representing gay state workers, agreed that the lawsuit against Arizona would become moot: If gays can marry in Arizona, they would be legally entitled to every benefit available to straight couples. At that point, she said, gay couples could make the same decisions as straight couples about whether or not to wed.
But Borelli said it is more likely the justices will take a much narrower approach, one that would affect only a handful of states, or perhaps just California. In that case, she said, Arizona will still be in the hot seat to prove it has a legitimate reason for disparate treatment of its employees based on sexual orientation.
Horne, however, said even if the Supreme Court upholds a ban on gay marriage -- and Arizona's own 2008 voter-approved similar constitutional prohibition remains intact -- he still believes Arizona can win its case.
He contends Arizona should be allowed to deny domestic partners benefits to same-sex couples because it "furthers the state's interest in promoting marriage.'' Anyway, he said, the decision to take away benefits was made not out of "animus'' toward gays but for strictly economic reasons.
The most recent figures from the state are that 132 state workers are getting benefits for their partners, plus another 98 university employees. The cost is pegged at close to $1.9 million a year.
Borelli, however, pointed out her lawsuit is based on a claim of denial of equal protection under the law.
She said the reason behind the Arizona statute is legally irrelevant. Instead, Borelli said, the only requirement is that the challengers show that the change in the law was intentional.
The fight is over the benefits that the state and universities provide to dependents of employees. Until 2008, that included only those who were legally wed.
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. The rule also required a showing of financial interdependence as well as an affidavit by the employee affirming there is a domestic partnership.
That rule contained no reference to the gender of the partner.
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, gay or not.
Lambda Legal then filed suit on behalf of the gay employees. It did not sue on behalf of unmarried heterosexual workers because of their legal option to wed; their coverage expired in 2010.
In 2011, the 9th U.S. Circuit Court of Appeals acknowledged 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 pointed out there is no other way for gay state and university workers to get those benefits.
The justices have put Horne's request to overturn that decision on "hold'' while they decide the Proposition 8 case. The presumption is that the ruling on that, and a separate challenge on the Supreme Court calendar for Wednesday to the federal Defense of Marriage Act, will clarify legal issues on rights of gays.
That second lawsuit goes to the narrower legal question of whether individuals living in states where same-sex marriage is legal are entitled to the same benefits, including tax status, as married heterosexual couples. That case, by itself, has no implications for Arizona as long as the state's constitutional ban against gay marriage stands.
Horne's bid to uphold the state's denial of benefits to the partners of its gay employees actually puts him in an interesting legal position.
The state effectively wins if the Supreme Court decides gays have the same legal right to wed as anyone else, as the argument about unconstitutional discrimination disappears. But Horne actually has taken a legal position, along with attorneys general of other states, in urging the justices to rule there is no constitutional right of gays to marry.