PHOENIX -- Arizona cannot cancel the insurance benefits for the domestic partners of state and university workers who are gay, the 9th U.S. Circuit Court of Appeals ruled Tuesday.
In a unanimous opinion, the three-judge panel agreed with the state that it 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. And she noted that there is no other way for gay workers to get those benefits in Arizona, with a state constitutional amendment barring same-sex nuptials.
Tuesday's ruling does not end the efforts by lawmakers and Gov. Jan Brewer to curtail the benefits. Instead, it simply requires the state to continue providing the coverage until there is a full trial on the merits of the question of whether the law is unconstitutional. The decision drew an angry reaction from the governor.
"It seems apparent that the court's real motivation here is for the legalization of gay marriage," said press aide Matthew Benson. "The governor stands with the majority of Arizona who overwhelmingly in 2008 defined marriage as between one man and one woman."
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-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. There is no reference to the gender of the partner.
The rule also requires 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 Republican Jan Brewer to governor. That allowed the Republican-controlled Legislature to put a provision into the budget limiting who is entitled to dependent coverage and specifically excluding the partners of unmarried employees, whether gay or not. The Lambda Legal Defense and Education Fund then filed suit on behalf of the gay employees; the coverage for unmarried heterosexual workers, not part of the litigation, expired last year.
Attorneys for the state argued to the appellate court that they were being forced to give some new constitutional rights to gays. But Schroeder said that is not the case.
"Rather, it is consistent with long standing 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 appellate judges also rejected the state's arguments that the statute limiting who is a "dependent" promotes marriage. But she said that makes no sense "since such partners are ineligible to marry" in Arizona.
Benson said the court is off-base in concluding that gay employees were being denied equal rights. He pointed out that the 2009 law that limited who get benefits affected unmarried heterosexual couples as well.
"The state needs to be able to take the actions required to balance its budget and to administer the state," Benson said. He said that legitimate choice "has now essentially been overruled by the court."
But Tara Borelli, an attorney for the Lambda Legal, said the appellate judges recognized the unfairness to gays of what the Legislature did.
"The law's been set up now in this terrible 'gotcha' for same sex couples," she said.
First, the Legislature agreed to send the ban on same-sex marriage to the ballot where voters approved it.
"And then, as soon as that became part of the state constitution that they couldn't marry, then the state turns around and says not that you can't marry, we're going to require you to marry in order to get this part of your compensation," Borelli said. She said that's discrimination that uniquely affects same-sex couples.
Cathi Herrod, president of the Center for Arizona Policy, which fought the 2008 rule rewrite and backed both the constitutional ban on gay marriage and the 2009 legislative repeal, said the judges were off base in calling the law discriminatory.
She said that, absent specific legislation, "protected status" against discrimination is entitled to individuals on the basis of things like race and gender. Herrod said neither the constitution nor state statute provides such protection to anyone "because of their sexual behavior."
Herrod also said questions of who gets benefits should be left to legislators as the elected policymakers.
In agreeing to keep the injunction against cutting benefits in place, Schroeder said that affidavits submitted by some workers whose partners would be affected showed there was a good reason to keep the state from curtailing the benefits while the case makes its way through the legal system.
"The health problems of domestic partners facing loss of health care included a life-threatening torn carotid artery, chronic asthma, and inability to obtain private life insurance because of diabetes and high cholesterol," she wrote.