By Dinita L. James
In the case of Collins v. Brewer, a federal judge from Alaska, deciding a case from Arizona, barred the state’s attempt to do away with benefits for same-sex domestic partners of state employees. Earlier this year, there was an argument on the case before a three-judge panel of the Ninth U.S. Circuit Court of Appeals (Arizona’s federal appellate court), to which Governor Jan Brewer and the state had appealed.
On September 6, the Ninth Circuit ruled that the lower court was right, with Judge Mary M. Schroeder, who formerly served on the Arizona Court of Appeals, writing the opinion for a unanimous court. Thus, state employees with same-sex domestic partners will keep their benefits for the time being at least. State employees lost coverage for their opposite-sex domestic partners in January 2011.
History of the Controversy
The controversy started back in April 2008, when then-Governor Janet Napolitano (now secretary of homeland security in Washington, D.C.) approved a change to the Arizona Administrative Code that expanded the definition of “dependents” of state employees eligible for benefits to include domestic partners of either sex. Before the change, only “spouses” fell within the definition of benefits-eligible dependents.
In November 2008, Arizona voters adopted Proposition 102, the Arizona Marriage Protection Amendment, which limits marriage to one man and one woman. Then, in September 2009, the Arizona Legislature adopted and Governor Brewer signed House Bill 2013, which redefined state employees’ dependents who are eligible for benefits to include “spouses” only, writing domestic partners out of the law.
Days before the law was to take effect in January 2010, a group of gay and lesbian employees filed suit. The federal court barred implementation of the law for same-sex domestic partners only, finding that because they couldn’t marry to keep their benefits as opposite-sex domestic partners could, the law as it applied to them violated the Equal Protection Clause of the U.S. Constitution.
State Arguments Fail to Impress
The Ninth Circuit was very complimentary of the lower court’s ruling, finding it to be a “careful order.” By contrast, the court was critical of the state’s arguments, finding them to be based on a “fundamentally distorted misreading” and “misunderstanding” of the district court’s opinion.
The lower court had considered and rejected all the justifications for the law offered by the state and then tried to think of any others that might support the law. Ultimately, the lower court determined that there was no rational basis for the law.
The state asserted in the lower court that the elimination of domestic partner benefits was justified both by the state’s economic interests and its desire to promote marriage. On appeal, the state dropped the argument about promoting marriage. Nevertheless, Governor Brewer’s spokesman criticized the Ninth Circuit’s ruling, calling it “standard fare” for the court that “flies in the face of both logic and the law” and claiming the court’s real motivation “seems to be for the legalization of gay marriage.”
The Ninth Circuit agreed with the lower court that there was a failure of proof to support the state’s argument based on cost savings. The state didn’t offer any evidence of what would be saved by eliminating same-sex domestic partner benefits.
Lower Court Didn’t Find Right to Health Care
The Ninth Circuit also rejected the state’s argument that the ruling impermissibly recognized a constitutional right to health care. The equal protection right is much more limited, according to the Ninth Circuit, amounting to the right of an unpopular group not to be targeted by legislation that disfavors them.
A U.S. Supreme Court case from the 1970s, U.S. Dep’t of Agriculture v. Moreno , supports the lower court’s ruling, according to the Ninth Circuit. The Moreno ruling overturned the so-called “hippie amendment” to the federal food stamp program, which redefined the term “household” to exclude unrelated individuals living together.
The Ninth Circuit found that the case before it presented a “more compelling scenario” than the Moreno case for a constitutional violation because financial circumstances often prevent people from changing their living arrangements to gain eligibility, whereas the Arizona Constitution prevents state employees from marrying to save their benefits.
Bottom Line
The state hasn’t announced whether it will seek a further review of the injunction, either before the U.S. Supreme Court or before the full Ninth Circuit. We will continue to monitor the case and report on future developments.
In the meantime, public employers that already offer benefits to domestic partners, whether they’re of the same or opposite sex, risk a constitutional challenge if they seek to eliminate them. Public employers considering extending benefits to domestic partners of their employees cannot exclude gay and lesbian employees. Private employers aren’t affected at the moment, but you need to consider whether domestic partner benefits are an important retention tool for your workforce.
Dinita L. James is a partner with Ford & Harrison’s Labor and Employment Group in the firm’s Phoenix, Arizona, office. She has extensive experience litigating complex matters in state and federal court, including large employment discrimination class actions and wage and hour collective actions. She may be contacted at djames@fordharrison.com.