PHOENIX - The U.S. Supreme Court could decide this week whether to let Arizona argue that it has the right to deny benefits to the domestic partners of its gay workers.
Attorneys for the state are asking the justices to overturn lower court rulings that concluded it is illegal discrimination to provide health care and other perks to spouses of heterosexual workers while making those benefits off limits to homosexuals. The first step is getting the nation's high court to agree to hear the case.
Attorney General Tom Horne contends Arizona has a legitimate "interest in promoting marriage."
Horne also said the 2009 state law was not done with the intent of discriminating against gays. He said lawmakers cut benefits for all unmarried couples as a way of saving $5.5 million at a time the state was facing a $1.6 billion deficit.
But Tara Borelli, an attorney for Lambda Legal Defense and Education Fund, said Horne's contention that the law does not discriminate rings hollow.
She acknowledged the statute says an employee has to be married to get benefits for a spouse and makes no reference to the worker's sexual orientation. But Borelli said that misses a key point.
"Unmarried heterosexual couples have the option to marry at any instance, and they can immediately enroll for family health benefits," she said. With Arizona voters having approved a ban on same-sex marriage, "that option is absolutely not available to gay people, and gay people alone."
She scoffed at Horne's contention that the financial savings to state taxpayers justify the law.
The state's petition seeking to reverse the lower court rulings against Arizona's law comes as the court is simultaneously weighing whether to hear broader issues of discrimination against gays.
Most involve challenges to the federal Defense of Marriage Act, which says there is no requirement for the government to treat those married in states that do allow same-sex nuptials the same as it treats heterosexual couples. This normally shows up in things like being able to file joint tax returns and the ability to inherit a partner's estate without paying taxes.
There also is review of California's Proposition 8 where a lower court struck down a voter-approved measure that overturned a state law allowing gays to wed.
And then there is the 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 then-Gov. Janet Napolitano directed the Department of Administration to change 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. That rule contained no reference to the gender of the partner.
Napolitano left to become U.S. homeland security secretary in 2009, elevating Jan Brewer to governor.
That allowed the Republican-controlled Legislature to statutorily override the rule, putting a provision into the budget limiting who is entitled to dependent coverage. It specifically excluded the partners of unmarried employees, whether gay or not.
Lambda Legal sued on behalf of gay workers. There was no appeal filed on behalf of unmarried heterosexual couples, as the issues are somewhat different because they do have the option to marry.
A trial judge issued an injunction to keep the benefits for partners of gay employees in place until there is a trial, something that has not yet been scheduled. That decision was upheld last year by the 9th U.S. Circuit Court of Appeals.
The judges acknowledged that 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 unanimous court, noting there is no other way for gay workers in Arizona to get those benefits since they cannot legally marry.
Horne said there is no evidence the state intended to discriminate against gays, pointing out that the law requiring couples to be married to get partner benefits treats all unmarried employees the same way, regardless of sexual orientation.
And he said challengers have to prove that it was the intent of the Legislature to discriminate to win a case under federal equal protection arguments, not just that the law disproportionately affects gays.