SAN FRANCISCO – An Arizona law removing domestic partner benefits for state employees discriminates against same-sex couples because they can’t get married to qualify, an attorney argued Monday before an appeals court panel.
“It requires gays and lesbians to go to work every day with the humiliating message that they are not equal,” said Tara Borelli, an attorney representing 10 same-sex couples suing over the change.
A three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments over a U.S. District Court judge’s August injunction that prevented the state from removing benefits from the same-sex partners of employees.
Assistant Attorney General Charles Grube said the Legislature intended the 2009 law to save the state money by using legitimate distinctions between married and unmarried employees.
“They were restricting appropriations in order to balance the budget,” he said. “It’s part of a whole number of distinctions that states can legitimately use.”
But the judges quickly redirected Grube toward the state’s justification of the law under the “promotion of marriage.”
“I think the first part of your argument is just smoke and mirrors,” said U.S. District Court Judge Mark Bennett of Iowa, who sat in as a replacement on the bench.
Grube said the state justified the law by saying it promotes marriage because U.S. district courts allow it “to use every possible justification, not just the real ones.”
“It’s not appropriate for the court to assume that a legislature acted with bad intentions,” he said. “The largest number of persons who were ousted from domestic partner benefits were … opposite-sex partners.”
More than 600 opposite-sex partners lost their benefits on Jan. 1 in a system containing more than 140,000 people, said Borelli, an attorney with the New York-based gay rights group Lambda Legal. She said nearly 300 same-sex partners were slated to lose benefits.
The appeals court will rule at a later date in Collins v. Brewer.
Grube said same-sex dependents can pursue a variety of alternative health care options, including private insurance and the state’s Medicaid system.
“It’s tempting to say that this is a case that challenges the definition of marriage,” he said. “But what’s before us is a challenge of the statute that creates a new definition of ‘dependent.’”
But when questioned by the judges, Borelli said nearly all of her clients couldn’t qualify for private health insurance due to preexisting conditions. And because the Arizona Health Care Cost Containment System evaluates domestic partner income, even the last resort isn’t an option, she said.
“If that’s true, aren’t gays and lesbians in a Catch-22?” Judge Sidney Thomas said. “You can’t get private insurance, and you go to the insurance of last resort … but because they count your spouse’s income, you don’t qualify.”
“That seems like a bad situation,” added Judge Mary Schroeder.
Deanna Pfleger, an employee of the Arizona Game and Fish Department in Lake Havasu City, and her partner, Mia LaBarbara, could face that situation. They attended the hearing.
LaBarbara chose to give up her original health plan through Arizona State Parks to join Pfleger’s plan.
But the state dissolved LaBarbara’s job due to budget cuts, and she said she would face slim chances of private insurance coverage due to a preexisting health condition.
“It’s very stressful,” LaBarbara said. “But we will do whatever we have to do. We’re a family.”