Gay state workers want Supreme Court to deny Jan Brewer's bid to slash partner benefits - East Valley Tribune: Politics

Gay state workers want Supreme Court to deny Jan Brewer's bid to slash partner benefits

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Posted: Monday, August 20, 2012 9:02 pm | Updated: 11:05 am, Thu Sep 6, 2012.

Attorneys representing some gay state and university workers said the U.S. Supreme Court should spurn as "unworthy'' a bid by Gov. Jan Brewer to let her immediately slash domestic partner benefits.

In legal papers filed Monday, attorney Lisa Borelli told the justices there is no reason for them to get involved in the contentious case, at least at this point.

Borelli pointed out that the only issue before the court is whether the state must continue to provide the benefits while the legality of the decision to halt benefits makes its way through the courts. She also pointed out that neither side has even done the preliminary work on the lawsuit.

And Borelli, staff counsel for the Lambda Legal Defense and Education Fund, said attorneys for the state have not even shown the Supreme Court the actual cost of maintaining the coverage while the case proceeds for a "small number'' of workers involved.

The most recent figures from the state Department of Administration show there are 230 active state and university employees and three retirees who have same-sex domestic partner medical coverage. Agency spokesman Alan Ecker pegged the cost of claims for the partners and their dependents at $1.88 million a year.

Arizona has long provided provides various benefits to the dependents of its state and university employees. Until 2008, however, that did not include the domestic partners of its unmarried workers.

The fight erupted that year when the Department of Administration, at the direction of then-Gov. Janet Napolitano, rewrote its rules to define who is a "dependent" to include someone living with the employee for at least a year and expected to continue living with that person.

Napolitano quit in 2009. That allowed the Republican-controlled Legislature, with the cooperation of successor Jan Brewer, to put a provision into the budget limiting who is entitled to dependent coverage, specifically excluding the partners of unmarried employees, whether gay or not.

U.S. District Court Judge John Sedwick, ruling in a case brought on behalf of gay workers, said the move is discriminatory, especially as a state constitutional provision precludes these employees from getting benefits by marrying. When the 9th Circuit Court of Appeals refused to disturb the injunction, Brewer asked the high court to intercede.

Borelli is not questioning that the case ultimately could end up before the Supreme Court.

But she said that should be after a full-blown trial on the merits of the case. And Borelli told the justices there is nothing that pressing that suggests they should get involved now.

"This case does not seek to allow same-sex couples to marry,'' Borelli wrote. She said the only issue is whether the trial judge was correct in determining whether the state had an "adequate determination'' to eliminate coverage for gay employees that remains available to their heterosexual coworkers.

Anyway, Borelli pointed out, one issue courts use in determining whether to issue an injunction is the "balance of hardships,'' essentially who will be harmed more depending on what the judge decides.

In this case, she said, the trial judge said the affected state workers "will likely suffer irreparable harms, including potential irreversible health consequences for their domestic partners.''

On the other side of the equation, Borelli said, the trial judge said continuing the coverage while the case is being decided would have "minimal impact on the state.''

Borelli also said nothing in the trial court's ruling conflicts with any decision by any federal appellate court, meaning there is no reason for the Supreme Court to get involved at this time.

Attorney General Tom Horne, representing the Brewer administration, asked the high court last month to dissolve the injunction. He argued that lawmakers should be allowed to deny such benefits because it "furthers the state's interest in promoting marriage.''

Horne also said the state has a financial interest in reducing its health care costs.

Sedwick, in his 2010 ruling, said the evidence shows the cost of providing benefits to the partners of gay and lesbian workers is no more than 0.27 percent of total health-care spending by the state. And the judge said even if state would have to make spending cuts elsewhere to fund the benefits, that still doesn't make the 2009 law right.

The justices have no specific deadline for ruling on the state's petition.

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