Recently the 9th Circuit issued a ruling in Diaz v. Brewer recognizing that the Arizona Legislature discriminated against same sex partners of state employees in rescinding their health insurance coverage.
You will recall that in April 2008, under then Governor Napolitano, ADOA rules were modified so that health insurance coverage could be offered to both same-sex and different-sex domestic partners. But, November 2008, voters approved Prop 102 which amended the Arizona Constitution to outlaw gay marriage, by defining "marriage" as the union of "one man" and "one woman" The following year, in 2009, the Arizona legislature enacted House Bill 2013 that limited health insurance coverage offered by the State to a "spouse under the laws of this State." This effectively eliminated health insurance coverage for all same-sex and different-sex domestic partners as of January 1, 2011.
The Diaz v. Brewer suit was filed by a number of gay State employees to challenge House Bill 2013 as discriminatory. The plaintiffs filed for a preliminary injunction which was granted by the Federal District Court in Phoenix. The District Court noted that House Bill 2013 was not discriminatory on its face, because it affected both same-sex and different-sex couples. However the court found that HB 2013 had a discriminatory effect. This is because, under Arizona law, different-sex couples could retain their health coverage by marrying, but same-sex couples could not.
The preliminary injunction stopped HB 2013 from going into effect for same-sex couples (and required the State to continue to provide health coverage for them) until a full trial could be held on the case. Before a full trial could be held, the State appealed to the Ninth Circuit.
While the appeal was pending the preliminary injunction allowed same-sex domestic partners of State employees to retain their health coverage. Opposite-sex couples, however, lost heath coverage as of January 1, 2011.
A three judge panel of the Ninth Circuit reviewed the Arizona District Court's ruling, found it to be correct, and upheld it. The State of Arizona had argued that the law was valid because it: (1) promoted marriage, and (2) was a cost savings measure. The court rejected the "promotion of marriage" argument because same-sex marriages are illegal under the Arizona Constitution. Next the court rejected the "cost savings" justification because the only "cost" evidence that the State submitted was the fact that 863 "same and opposite-sex domestic partners" being covered. This is a miniscule number compared to the 57,000 State employees who have health coverage for their spouses and families.
Once the State of Arizona's justifications for the law were entirely discredited, the Ninth Circuit had to uphold the injunction. The court noted:
"the district court correctly recognized that barring the state of Arizona from discriminating against same-sex couples in its distribution of employee health benefits does not constitute the recognition of a new constitutional right to such benefits. Rather, it is consistent with long standing equal protection jurisprudence holding that "some objectives, such as 'a bare . . . desire to harm a politically unpopular group,' are not legitimate state interests."
The big question is what happens now? The State has a number of options: (1) the State can ask for an en banc rehearing in front of all of the Ninth Circuit judges and hope they overturn the decision, (2) the State can appeal to the US Supreme Court which will take some time, or (3) the State can let the decision stand and bring the case back to the Arizona Federal District Court for a full trial on the merits.
We should know what direction the State will take in the next few weeks. In the meantime, same-sex domestic partners of State employees will continue to have health insurance. Opposite-sex domestic partners, who lost health coverage in 2011 are not impacted by this ruling.
We are working on possible legislation to fix this issue for our opposite-sex domestic partner members. However, a lot hinges on the ultimate outcome of the case. If same-sex domestic partners wind up winning, we feel we have a strong argument to push for health insurance for opposite-sex domestic partners. We will keep you posted. | 