Horne to discuss civil union benefits with city attorneys - East Valley Tribune: Politics

Horne to discuss civil union benefits with city attorneys

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Posted: Friday, April 19, 2013 9:41 am | Updated: 2:03 pm, Wed Apr 24, 2013.

Hoping to short-circuit future lawsuits, Attorney General Tom Horne wants to tell attorneys from cities around the state exactly what he thinks their communities can -- and cannot -- offer to domestic partners of their residents.

Horne has invited the lawyers to a closed-door meeting for the end of the month at his Phoenix office. And those who cannot make the trek to Phoenix can participate by phone.

At this point, the event is pretty much a one-way street. Horne intends to sketch out the limits of city authority.

But he told Capitol Media Services that while he has pretty much made up his mind, he's willing to listen.

"They may have things to tell me I haven't thought about,'' he said.

The meeting comes in the wake of a decision by Bisbee council members to offer "civil unions'' to their residents.

That ordinance was rescinded after Horne threatened to sue. Council members have directed staff to recast it, this time in a way designed to avoid conflicts with state law and a legal fight with the attorney general.

That leaves the question of what they can do.

Horne has sidestepped the question of whether a city can actually offer civil unions. While the Arizona Constitution defines marriage as solely between one man and one woman, voters had previously defeated a more wide-ranging measure which would have outlawed civil unions.

But Horne said where Bisbee went wrong is in saying that new status also gave those in recognized civil unions the same rights of things like community property and inheritance.

Those are rights defined in state statute. More to the point, he said, lawmakers have reserved those rights to couples who are married

"They cannot violate state law,'' Horne said.

What they can do, he said, is act in areas that the Legislature has not.

For example, he cited ordinances in some cities which require hospitals to grant the domestic partners of patients the same visitation rights they would a spouse.

"There's no state law pertaining to that,'' Horne said.

That's also the assessment of Cathi Herrod. She is president of the Center for Arizona Policy, the group that has been at the forefront of seeking to limit the rights and privileges of marriage solely to those who can legally wed.

She said Tucson and Phoenix allow unmarried individuals living together who have signed up with a domestic partnership registry to purchase family passes for the municipal swimming pools or the city zoo. Herrod, who is an attorney, said that appears to be entirely within the jurisdiction of the city and therefore not preempted by state law.

Herrod said her organization does not believe in domestic partnerships or civil unions, calling them "marriage counterfeits.'' But she pointed out that the Legislature has, in fact, already spelled out places where they will recognize domestic partnerships, even without city action.

One of these laws deals with who gets to make a medical decision for someone who is incapacitated and has not previously given someone else a medical power of attorney.

To priority goes to the patient's spouse, followed by an adult child, a parent and then the patient's domestic partner. Brothers and sisters fall lower in the pecking order.

Similarly, another law allows a domestic partner, in the absence of others with higher priorities, to donate a patient's body or organs.

Herrod noted, though, neither law defines exactly what the state will consider a "domestic partner,'' paving the way for potential future lawsuits.

Even if Horne does not object to cities granting hospital visitation privileges, that does not end the legal issues. Pete Wertheim, spokesman for the Arizona Hospital and Healthcare Association, said it remains untested legally whether hospitals are required to honor that.

He said hospitals generally honor the requests of patients of who gets to visit and even who can see their medical records. But Wertheim said that can't happen when a patient is in a coma.

At that point, he said, each hospital will have to decide whether to honor a city-issued domestic partner certificate the same way it would a marriage license.

Further complicating matters, he said, is these issues do not remain within city limits. He said just because someone lives in a community that recognizes domestic partnerships and grants a right of visitation does not mean a hospital in another community is obliged to follow that.

"We almost need to have some lawsuits or clarifying language,'' he said.

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