Arizona Gov. Jan Brewer is appealing to the Supreme Court of the United States to review a lower court's temporary suspension of a state law that would eliminate benefits for the spouses of gay state employees.
According to court documents, Arizona Attorney General Tom Horne filed a petition on July 2 to appear before the high court. The state is hoping to overturn a U.S. District Court Judge's preliminary injunction suspending provisions of a 2009 law that would eliminate marriage benefits for gay and lesbian state workers and their spouses.
The law in question, enacted in August 2009, sought to eliminate health care, dental, life, disability and retirement benefits for couples in domestic partnerships, including same-sex couples, by actively applying the state's definition of marriage—which it treats as a union only between a man and woman. The added language would be an effective repeal of domestic partnership benefit provisions signed into law in 2008 by Brewer's predecessor, Janet Napolitano.
Three months after the legislation passed, attorneys for the New York-based Lambda Legal Defense and Education Fund sued Arizona's government in the U.S. District Court for the District of Arizona, seeking protection for the spouses of gay state workers under the 14th Amendment to the U.S. Constitution.
Lambda Legal claims that when joined with the Arizona's ban on same-sex marriages, a law eliminating benefits for domestic partnerships disproportionately discriminates against gay and lesbian state workers, because heterosexual couples still could access the state-sponsored benefits through a legally recognized marriage.
"The selective withdrawal of family coverage from lesbian and gay state employees—while leaving family coverage intact for heterosexual state employees with a legally recognized spouse—denies each plaintiff equal compensation for equal work,"
Lambda Legal wrote in its lawsuit, which has not yet gone to trial. The organization added that the law "discriminatorily inflicts upon each plaintiff and his or her family members anxiety, stress, risk of untreated or inadequately treated health problems, and potentially ruinous financial burdens."
In July 2010, U.S. District Court Judge John Sedwick granted a preliminary injunction temporarily suspending the law's application to same-sex couples for the duration of the trial. In his decision, he noted that the constitutional challenge to the law had "a likelihood of success" and that the plaintiffs would likely suffer irreparable harm if the law were applied as written, based on testimony provided by several gay state workers and their spouses.
Further, Sedwick ruled that the state had failed to demonstrate a rational connection to the budgetary interests it contended should have prevented the preliminary injunction. According to court documents, only 800 of the approximately 140,000 workers, retirees and their dependents enrolled in state-sponsored benefits programs in 2010 were in domestic partnerships, and only a fraction of those partnerships were same-sex unions.
State attorneys appealed the injunction to the 9th U.S. Circuit Court of Appeals, which upheld Judge Sedwick's ruling in April.
"The state's principal argument on appeal is that the district court, in granting the preliminary injunction, improperly accepted all of the plaintiffs' allegations as true," U.S. Circuit Court Judge Mary Schroeder wrote in the majority opinion. "This argument is premised on a fundamentally distorted misreading of the district court's opinion."
In an interview broadcast July 10 by a Phoenix-area CBS affiliate, Horne said he believed the Supreme Court would accept the petition and ultimately strike down the injunction.
He said that, should the high court take the case, the state will argue that the law does not violate the 14th Amendment because it does not intentionally discriminate against gay couples, even if those couples are disproportionally affected by its provisions.
"The rule under the (14th Amendment), which is the clause that the (district) judge used, is that you have to show a discriminatory intent," Horne said. "It's not enough to show disparate impact. We think we should win it on appeal because the court applied the wrong legal standard."
It is uncertain if the Supreme Court will hear Arizona attorneys' appeal, as the underlying case still remains to be decided at the district level.
"I think it's highly unlikely that the Supreme Court will be interested in hearing the case at this stage," said Tara Borelli, a Los Angeles-based staff attorney at Lambda Legal. "This case was at a very preliminary point when Arizona state officials began appealing it. The parties haven't conducted discovery, and Arizona has not yet submitted any evidence on one of its main defenses, that being the cost of the coverage. Those are some of the things that parties typically have to do before the high court will spend its time on a case."
Regardless of whether the Supreme Court decides to hear the state's appeal, Borelli said she believes Judge Sedwick's ruling—and by extension, the lawsuit itself—would withstand challenges based on a supposed lack of discriminatory intent. In the 9th Circuit majority opinion, Schroeder wrote that the legislation rises to the level of discrimination because, by operation of law, it excludes gay couples from the state's benefits program and preserves availability for heterosexual couples.
"We're confident that the 9th Circuit's decision would hold up on review," Borelli said. "Arizona has tried to claim that what the court did was unusual, and that its attempt to strip domestic partnership benefits for same-sex couples wasn't intentional, but that just doesn't make any sense."
If Lambda Legal's allegations were ultimately found not to meet the standard for discrimination protection under the 14th Amendment, Ms. Borelli said it still may be possible for the plaintiffs to seek relief under federal employment laws.
Title VII of the U.S. Civil Rights Act of 1964 does not address discrimination based on sexual orientation, but it addresses bias based on gender. Though Lambda Legal did not specifically cite the law in its complaint, the group accused Arizona officials of implementing a discriminatory employment compensation system based at least in part on gender, because eligibility for marriage benefits is ultimately determined by the sex of a spouse, and not whether the couple is gay or straight.
Borelli said it had not yet been determined if Lambda Legal would amend its complaint to include alleged violations of Title VII.