Nancy Polikoff

Arizona: Are Domestic Partner Benefits for Gay/Bi Couples Only?

Filed By Nancy Polikoff | February 14, 2011 6:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Arizona, domestic partner benefits, Lambda Legal

In 2008, by administrative regulation, Arizona made available to state employees health benefits for their domestic partners, defined by at least a year of living together and a set of criteria demonstrating financial interdependence. no-on-8.jpgSame-sex and different-sex partners were eligible. In August 2009, the Arizona legislature rescinded these benefits through a statute limiting state employee health benefits to spouses. Before the rescission could take effect, Lambda Legal challenged the constitutionality of the legislation, but only on behalf of those state employees with same-sex partners. They won in the District Court, and the Ninth Circuit Court of Appeals hears the state's appeal today, in the case of Collins v Brewer.

This case really bothers me.

In 2006, an Arizona referendum that would have barred both same-sex marriage and any legal recognition of unmarried partners, gay or straight, failed at the polls. Prop 107, as it was known, is the only ballot measure against same-sex marriage that has ever been defeated. The campaign against it prominently featured different-sex couples who feared losing domestic partner benefits.

Two years later, Arizonans did pass a constitutional amendment simply limiting marriage to one man and one woman. It did not preclude recognition of unmarried couples or of civil union or domestic partner status. The only reason the state employee domestic partner benefits could exist in the first place for anyone is because Prop 107 failed.

Lambda not only carved same-sex couples out from the group of people with domestic partner benefits, they actually say in the briefs, repeatedly, that heterosexual state employees have not lost their benefits. This is inaccurate. Heterosexual employees have lost benefits for their domestic partners (or will when the law goes into effect). They can get benefits if they marry their partners, and Lambda believes this means it is accurate to say in the litigation that the new law deprives only gay and lesbian employees of benefits. I do not believe this is accurate.

The other thing that bothers me is that the gay and lesbian plaintiffs all had to say they would marry their partners if they could. So what happens to those who don't want to marry? Lambda isn't representing those employees either.

I wonder how the conversations went between the Lambda lawyers and the gay and lesbian state employees. Did the lawyers say "we can't represent you unless you sign an affidavit that you would marry your partner"? Or did they first talk to all the couples and find out how they felt about marrying? And then tell them that they had already picked out a legal theory that would require the couples to say they would marry? I guess I'm asking if the legal theory came first or if the genuine wishes of all the gay and lesbian employees came first.

It's a grave matter to separate out different-sex domestic partners. I applaud the fact that the most recent civil union and domestic partner statutes (Nevada, Illinois, and hopefully Hawaii) are open to both same-sex and different-sex couples. And with the unique history of political common cause in Arizona, it seems especially grave. But dividing the gay couples into those who want to marry and those who don't and representing only those who want to marry carves deep into our own community as well.

The press will likely report this case the way Lambda is portraying it, as an attempt to stop a law from going into effect that will deprive only same-sex couples of domestic partner health benefits. That doesn't tell the whole story.

cross posted from Beyond Straight and Gay Marriage

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I don't understand the problem here?

First, str8b ppl have so much massive privilege already, why should we be worried about them? If we got one thing they don't is that so bad? After all, if they want benefits, they *can* get married.

And really, marriage is what is rewarded by the governments and companies already; partner benefits are to allow ppl who can't get married to get around discrimination. If it weren't for gay ppl, str8s would have no shot at partner benefits anyway, most likely, other than from big companies that want to attract young, educated ppl who aren't into marriage.

Finally, what is wrong with how LL is going about this? They use the ppl who *do* want to get married and who will never be able to get married in AZ to get the rights, and all gay ppl benefit, even the ones who have no desire to get married. Noone lies, everybody gets something.

If they weren't such asshats in AZ, and allowed gay ppl to marry, then the ppl who don't want to get married would be in the same state as the str8s--you don't get married, you don't get the benefits of *being* married. Then the issue is, should ppl who have formed a family without marriage get marriage benefits?

To me, the government should stop giving married ppl tax breaks and stuff all together, anyhow. Have civil unions for legal purposes (inheritance, power of attorney, all that) and forget the rest. Really, it is unfair to all the single ppl anyhow.

Great post, Nancy.

Reading Carol's comment reminds me how much a lot of the "refusal to participate in marriage" stuff doesn't speak to lots of people who really don't see marriage as anything more than a sheet of paper. Maybe it's the lack of a common culture in the US, maybe it's that some people are more practical than others, who knows.

I did find at some point the number of straight couples that were using DP benefits in some locality and it was a fairly high number, and that makes me think that there are lots of straight couples that don't want to get married that would be perfectly eligible otherwise and would, maybe, if they saw it as just a contract that gives out benefits.

but! I'm almost through "sex at dawn" now, which is a great way to displace the natural-ness of marriage and make it seem like some weird creation only freaks want to participate in. We should get this book in high schools!

I helped to defeat prop 107 in Northwestern Arizona and I agree with you.Also earlier this evening in a conversation with my 67 year old mother I was explaining the benefits of having domestic partner recognition for senior citizens.The LGBTG community would be wise to show straight people how benefits they think only apply to gay people can benefit them. I support same sex marriage but I also believe there is a justifiable need for domestic partnership if anything just to help out senior citizens.Senior citizens have been called all of our lgbttqi harshest critics what better way to win their hearts and votes then to show we care about them by directly fighting for their rights in our court battles and in our proposition fights.I am now in Iowa where republicans are trying to start the process to remove gay marriage, and prevent recognition of any substitute form of marriage such as civil unions and domestic partnerships. Instead of wasting time at the Capitol all of us would do better to counter the hate mongers by trying to add domestic partnerships for all and explaining to seniors that it us trying to help them and why.I also think TV and Radio ads would help build up the support base in case same sex marriage does go to the vote here. Also as a heterosexual identified TS woman I feel the LGB is failing me by lumping me under the Transgender Umbrella. I also think if by no choosing of my own that my rights are going to be tied to your battles that there should be more than a few heterosexual TS women in visible positions within the LGB hierarchy.I can't think of one or of one I've ever heard of can you?

Why is it that all of these "equality" measures are always exclusionary of some group or another? Why can't "equality" actually mean "equal"?

Equal is always about comparing whom to whom. As long as we compare ourselves to heterosexual married couples we will get what they get even when it is unjust or even bad for us. If we question marriage as the dividing line we may achieve more justice for more of us and for straight people like the senior citizens Amy mentions. Domestic partner benefits started as an alternative to marriage and were available to different-sex couples as well. It was not until marriage became the frame of reference that we saw DP benefits for same-sex couples only. Lambda itself said 10 years ago that no one should have to marry to get employee health benefits for a partner.

It is a fundamental rule in civil lawsuits under Western rules of due process that the plaintiff has to prove that actual and irreparable harm occurred to actual persons. In a class-action suit, the legal team must be able to truthfully certify to the court every single co-plaintiff was so harmed. In this case, that means they have to be able to say that every single couple represented would have in fact gotten a domestic partnership and that every single couple represented was irreparably harmed by that inability.

"They can get benefits if they marry their partners, and Lambda believes this means it is accurate to say in the litigation that the new law deprives only gay and lesbian employees of benefits. I do not believe this is accurate."

I totally agree that is not accurate in the general sense, but it is accurate in the legal sense. A heterosexual couple which is denied a domestic partnership has not been irreparably harmed in the eyes of the law; they have merely been inconvenienced.

The other thing that bothers me is that the gay and lesbian plaintiffs all had to say they would marry their partners if they could. So what happens to those who don't want to marry? Lambda isn't representing those employees either.

This too is necessary to meet the irreperable harm standard. In the eyes of the law, being prevented from doing something is only harmful if you actually intended to do it.