The case, Brewer v. Diaz, will now return to U.S. District Court in Phoenix for a decision on whether to permanently block Arizona’s law, which defines dependents as a spouse and child. The law, which was passed in a budget bill in 2009, is temporarily blocked while the legal challenge makes its way through appeals.
Gov. Jan Brewer said in a statement that she was disappointed in the decision, which she said “undercut the ability of duly-elected state officials to make decisions critical to managing the state budget.’’
She said she decided to terminate the benefits in 2009 to help deal with the state’s financial crisis, not to discriminate against domestic partners, “same sex or otherwise.’’
Attorney General Tom Horne, who will have to decide whether to proceed to trial or reach a settlement on whether to permanently block the law, said he is considering his options.
The state had previously recognized domestic partners, defined as same or different sex, as dependents. The policy was installed by former Gov. Janet Napolitano by executive order.
After the passage of the new law, a group of gay and lesbian state employees who have life partners filed suit in November 2009, alleging that the law discriminated against gays and lesbians because they couldn’t marry under Arizona’s law.
A U.S. District Court judge found the law unconstitutional in 2010 and the 9th U.S. Circuit Court of Appeals upheld the ruling.
The lower courts ruled that while they didn’t find the law discriminatory on its face, it made it impossible for gay and lesbian couples to obtain the benefits.
The state, justifying the law as a cost savings measure passed in an economically turbulent time, says in its briefs the lower courts went against Supreme Court precedent requiring proof the Legislature intended to discriminate on the basis of sexual orientation.
Attorney Dan Barr said the state has already lost Diaz three times with courts using the lowest level of review, which he says bodes well for his case because Supreme Court Justice Anthony Kennedy said courts from now on should use higher levels of review for same sex cases.
“I long thought that the only way we could lose this case is if the Supreme Court recognized the constitutional right for same-sex marriage and that would sort of then moot our case because our case is about the discrimination between married people and same-sex people who can’t get married,” said Barr, an attorney with Perkins Coie, who represented the same sex couples who sued the state.
Arizona bans same-sex marriages by defining marriage as a union between one man and one woman. So same-sex partners could not meet the definition of spouse, which excluded domestic partners.
Earlier in the week, the Supreme Court ruled that the Defense of Marriage Act, which defines marriage as a union between one man and one woman for the purposes of federal law, is unconstitutional. The court ruled in a second case that the party defending California’s same-sex marriage ban, known as Proposition 8, had no standing in the case. The effect of the Proposition 8 decision was to make gay marriage legal in that state.
The court did not decide whether there is a right to same sex marriage under the U.S. Constitution, leaving states to decide their own definition of marriage.