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Back to Section One | Back to Arts & Entertainment
posted Friday, September 9, 2011 - Volume 39 Issue 36
9th Circuit Court says Arizona can't cancel D.P. benefits
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9th Circuit Court says Arizona can't cancel D.P. benefits

by Mike Andrew - SGN Staff Writer

A three-judge panel of the 9th US Circuit Court of Appeals ruled on September 6 that Arizona may not cancel health insurance benefits for domestic partners of state workers.

Arizona Governor Jan Brewer and her Republican allies in the state legislature inserted a provision in the state budget limiting insurance coverage for the families of state employees.

Partners of unmarried employees - same-sex or opposite sex - were specifically excluded.

The court, however, ruled unanimously that this was not legal.

While it agreed with the state's attorneys that Arizona is not obligated to provide health insurance for its workers or their families, the panel said that if it does so it may not discriminate against particular groups.

'But when a state chooses to provide such benefits,' Judge Mary Schroeder wrote for the court, 'it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular.'

She noted there is no other way for Gay or Lesbian workers to get those benefits in Arizona, because the state constitution has been amended to prohibit same-sex marriage.

The judges also rejected the state's arguments that the statute limiting who can be a 'dependent' promotes marriage, 'since such partners are ineligible to marry' in Arizona.

Attorneys for the state argued they were being forced to give new constitutional rights to Gays and Lesbians, but Judge Schroeder said that is not the case.

'Rather, it is consistent with longstanding 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 case came to the 9th Circuit as a result of a long process of revision of Arizona law.

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-Governor Janet Napolitano, the Department of Administration rewrote its rules to define who is a 'dependent' of a state employee.

For the first time, the definition included someone living with the employee for at least a year and expected to continue living with that person. There was no reference to the gender of the partner in the revised rules.

The rules also require a showing of financial interdependence, and an affidavit by the employee affirming that there is a domestic partnership.

In 2009, Napolitano left the governor's office to become secretary of homeland security in the Obama administration. Brewer then became governor.

That allowed the Republican-controlled Legislature to put a provision into the budget limiting who is entitled to dependent coverage, specifically excluding all partners of unmarried employees.

Lambda Legal then filed suit on behalf of the Gay and Lesbian employees and their partners.

The September 6 ruling does not end efforts by the governor and lawmakers to curtail the benefits. Instead, it simply requires the state to continue providing coverage until there is a full trial on the unconstitutionality of excluding same-sex domestic partners.

'Today's decision means Arizona's Lesbian and Gay state employees will not suddenly find themselves without vital family health coverage,' said Tara Borelli, a Lambda Legal attorney who argued the case before the court.

HRC president Joe Solmonese also celebrated the court's ruling.

'Governor Brewer's decision to take health care and insurance benefits away from state employees in same-sex relationships has been recognized for what it is: unconstitutional,' he said in a statement. 'During a time of economic difficulty for many Arizonans, it makes no sense for the state to make our families less secure and deny health care to our partners.'

Brewer, however, charged that the court was motivated by a political agenda.

'It seems apparent that the court's real motivation here is for the legalization of Gay marriage,' said Brewer press aide Matthew Benson. 'The governor stands with the majority of Arizonans who overwhelmingly in 2008 defined marriage as between one man and one woman.'

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