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12/11/2012 3:07:00 PM
Supreme Court delays Arizona domestic benefits question

Howard Fischer
Capitol Media Services


PHOENIX -- Arizona will have to continue providing benefits to the domestic partners of its gay state and university employees, at least for the time being.

The U.S. Supreme Court issued its last orders of the calendar year on Monday. And Arizona's bid to have the justices take up the question was nowhere on the list.

But the delay in resolving the case is likely to be even longer than just January.

Last week the court opted to hear two issues related to gay rights: California's Proposition 8 which overturns a state law allowing gays to wed, and the federal Defense of Marriage Act which denies federal recognition to gay couples who marry in states where that is legal.

Tara Borelli of Lambda Legal, which sued the state in a case called Diaz, said that inaction is significant.

"Given that the Supreme Court didn't issue any order in any direction in Diaz, we believe that they will hold the case until they have issued a decision in the Proposition 8 case and the DOMA case that they accepted for review,' she said. "And that is anticipated to be sometime in June of 2013.'

Arizona Attorney General Tom Horne conceded Monday that the decision to take the other cases -- but not the one he wants the high court to review -- suggests the justices are not interested in ruling on his issue at this point.

"The probability is, they won't take it,' he said, at least not now.

Borelli said once there is a ruling on the other two cases she expects the justices to send the Arizona case back to lower courts to reconsider, this time with the benefit of a ruling on the rights of gays.

In the interim, though, a personnel rule changed pushed through in 2008 by then Gov. Janet Napolitano entitling the partners of gay employees to get benefits remains in effect.

Alan Ecker, spokesman for the state Department of Administration, said there are currently 132 state workers who are getting benefits for their partners, plus another 98 university employees. He said the cost to taxpayers is currently running close to $1.9 million a year.

Arizona has long provided benefits for the dependents of its workforce.

What the 2008 rule did is redefine who is a "dependent' to include someone living with the employee for at least a year and expected to continue living with that person. It also requires a showing of financial interdependence as well as an affidavit by the employee affirming that there is a domestic partnership.

In 2009, with Napolitano gone to work in the Obama administration, the Republican-controlled Legislature passed a law limiting who can be a dependent, specifically excluding unmarried partners.

Borelli brought a lawsuit challenging the law, but only on behalf of gays. That's because

As approved, the rule contained no reference to the gender of the partner. But the lawsuit challenging it was brought only on behalf of gays because heterosexual employees have a legal option to get benefits: They can marry in Arizona; same-sex couples cannot.

A trial judge enjoined the law as discriminatory, a decision upheld by the 9th U.S. Circuit Court of Appeals. That led Horne to ask the nation's high court to intercede and, from his perspective, declare the lower court rulings void.

Borelli said a sweeping ruling by the high court in the Proposition 8 case could have a significant impact on the Arizona lawsuit.

In that case, the 9th Circuit voided a California initiative which overturned a law entitling gays to wed. The court said voters could not take away that right once it had been given.

Borelli said the U.S. Supreme Court could decide that case strictly on California issues. At the same time, she said, the justices could determine there is a federal constitutional right to marry, regardless of whether the partner is of the same or opposite sex.

That latter scenario would change the whole focus of the Arizona case, called "Diaz' for short, after the name of one of the challengers.

"Diaz is really about when a state has set up a roadblock for state employees and has said you can only get coverage for your family if you do this thing that's legally impossible for you, which is to marry,' Borelli explained. "We do think that a broad ruling from the Supreme Court on marriage would change completely the issues in Diaz.'

Borelli said, though, if the Supreme Court upholds Proposition 8, that does not necessarily undermine her case against Arizona. She said it would depend on how broadly the justices reject the 9th Circuit ruling, and on what basis.

Taylor Waste

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