(NOTE: The new petition and appendix can be read here.)

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With the Supreme Court’s next Term already shaping up as a historic one on the rights of gays and lesbians, Arizona officials have raised a significant new question for the Justices: if a state bans gay marriage, can it then take away unwed same-sex couples’ access to state benefits that go only to those who can marry?  The Ninth Circuit Court said no, but dissenting judges argued that the ruling amounted to a ban on states acting to protect a traditional view of marriage.  That complaint may add to the Supreme Court’s willingness to hear the state’s new appeal (Brewer v. Diaz, filed last week).

The case illustrates a trend that is beginning to develop in lower courts dealing with issues of gay marriage: they are establishing new rights to legal equality for such couples, without taking the constitutional step of creating an explicit new right for gays and lesbians to marry.  That was what lower courts did in two cases that have already reached the Court, involving the constitutionality of the federal Defense of Marriage Act, and in a case due to reach the Court soon on California’s “Proposition 8″ ban on such marriages.   It happened again in the Arizona case newly arrived at the Court, although the dissenters said that the decision there implicates states’ power to limit marriage rights.

Arizona is one of 39 states that ban same-sex marriage.  In November 2008, its voters approved “Proposition 120,” declaring that “only a union of one man and one woman shall be valid or recognized as a marriage in this state.”

That vote came only seven months after the state government changed policy, and began offering health care benefits to “domestic partners” of state employees — a new opportunity given equally to unmarried couples, whether or not they were gay.   Up to that time, those benefits were available only to married spouses and their children.   The 2008 change made a “domestic partner” an eligible dependent of a state worker, and defined domestic partner generally as a person living in the same home with a state employee who had been living there for at least a year, was not married, and was at least 18 years old.

Ten months after “Proposition 120″ had passed, the Arizona legislature passed a law that was to go into effect on January 1 of last year, wiping out coverage for all domestic partners, gay or not.   Titled “Section O,” it said simply that “dependent” in state benefit law meant only a spouse or an eligible child (one under age 19 or, if a full-time student, under age 23).   The state legislature adopted Section O, concluding that coverage of domestic partners was costing the state upwards of $4 million a year, and the state was faced with a serious budget crisis, with a rising deficit.   Section O was one of 40 provisions that were adopted as cuts to the state budget.

Section O, however, has never gone into effect, because a group of gay and lesbian state workers sued to challenge it and, in the meantime, got a court order blocking its enforcement.

Their lawsuit, based on the equal legal protection guarantee of the Fourteenth Amendment, argued that the loss of health care for their domestic partners, and for the children of their domestic partners, was discriminatory.  Since state workers who were not gay could keep their benefits if they got married, while gay workers were barred from marrying, the effect was to single out gays for the denial of benefits that they formerly had enjoyed.  The loss, they argued, would be a significant financial and emotional hardship.   One example that federal courts cited was of a University of Arizona professor who had been in a committed relationship for 22 years with her partner, who could not work because of a need to care for the partner’s 89-year-old mother.   The partner had signed up for family health coverage provided by the state, needing it for herself because she has asthma and could not get private health insurance.  She would lose that coverage under Section O.

A federal judge ruled that the challengers were likely to succeed when their case was tried, and blocked Section O.   The judge found that, while that provision did not end coverage only for domestic partners of gays, but the partners of all state employees, it would have a “discriminatory effect” on gays because of the state’s marriage ban.   A three-judge panel of the Ninth Circuit agreed.  The state had argued that the provision was justified by the need to save state funds, a need to reduce the cost of running the domestic partner benefit program, and a desire to promote marriage in its traditional form.  The Circuit Court panel rejected all of those reasons, concluding that none of them could survive constitutional challenge, even with the court only applying the least-demanding standard: rational basis review.   State employees and their families have no constitutional right to benefits, the panel conceded, but it added: “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.”

When the full 28-judge Circuit Court refused to reconsider the case en banc, the two dissenting judges argued that there was no evidence that the Arizona legislature had passed Section O in order to discriminate against state employees who are gay or lesbian, and such an intent would be necessary to make the cut-off of benefits unconstitutional.  “It rests only on budgetary considerations,” the dissenters contended.   Further, the dissenters argued, the panel decision was based upon the “veiled but unmistakable” conclusion” that “rules benefitting only traditional marriage serve no conceivable rational purpose.”  The decision thus set a precedent for striking down efforts by states “to promote traditional marriage,” the dissenting opinion asserted.

Arizona’s petition to the Supreme Court raises three questions: whether Section O is unconstitutional though it was written in a neutral way and there is no evidence of discrimination based on sexual orientation, whether the state had justified it adequately as eliminating the added expense and administrative burden of covering all domestic partners, and whether the fact that Arizona bars same-sex marriage is a valid basis for finding Section O to be biased.

The Ninth Circuit ruling, state officials argued, was flawed on the merits, conflicts with rulings of the Supreme Court on how to judge discrimination under the Fourteenth Amendment, conflicts with rulings of other state courts on similar issues, and ignores the state’s valid reasons for Section O — “conserving state resources and funds and promoting traditional marriage.”   Indirectly, the petition added, picking up on the dissenting Circuit Court judges, the panel decision has struck down Arizona’s state laws and constitutional provision limiting marriage to opposite-sex couples.

Noting that the Ninth Circuit had also struck down California’s “Proposition 8″ ban on same-sex marriage in that state, the Arizona petition said the Ninth Circuit decision in the domestic partners case was “in some ways even more breathtaking” because the “Proposition 8″ ruling did not reach the question of the constitutionality of same-sex marriage, while this decision does, at least indirectly.

The Arizona state employees who filed the challenge have 30 days to respond to the new petition, unless that time is extended.  The Supreme Court is not expected to act upon the case during its summer recess.

 

Posted in Brewer v. Diaz, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, A new test on gay rights, SCOTUSblog (Jul. 10, 2012, 2:53 PM), http://www.scotusblog.com/2012/07/a-new-test-on-gay-rights/