Rejecting claims of illegality, the Governor's Regulatory Review Council gave the final go-ahead Tuesday to extend benefits to the domestic partners of state and university employees.
The 4-0 vote by the panel, all hand-picked by Gov. Janet Napolitano, came despite objections from foes that the change will encourage what one called an "aberrant" lifestyle. Another said the Napolitano administration had not properly considered all the indirect costs to society of the state recognizing unmarried couples, including increased domestic violence.
But the council instead accepted the arguments of Bill Bell, Napolitano's director of the Department of Administration, that the cost to taxpayers, perhaps $6 million a year, is outweighed by what the state and universities will save in attracting and retaining qualified employees.
At this point, only two things could keep the change from taking effect as scheduled on Oct.1.
The Legislature could specifically alter the law to overrule how Bell's agency is choosing to define "dependents" for purposes of benefits.
But a measure to do specifically that failed to get enough votes last month in the Senate. And even if it were to pass, it would not survive a gubernatorial veto.
That leaves only a legal challenge. Peter Gentala, an attorney for the Center for Arizona Policy, said that option is being reviewed.
Bell, however, said he remains convinced that he has the authority to make the change without seeking legislative approval. Tuesday's testimony turned on both moral and legal issues.
Donald Pertzborn of Laveen testified the rule change takes commonly understood terms like "dependents" and broadens them "to fit political expediency."
"As a tax-paying citizen, I don't think it's right for us to be taking our state funds to be utilized for a lifestyle which I consider to be aberrant," he said, whether that includes gay couples or straight couples who choose to live together without getting married.
But Chris Thomas, a lawyer on the council, said all that is irrelevant. He said the only thing the council can consider is whether the Department of Administration has the legal authority to make the change.
Gentala insisted that the agency does not. He said the 1977 law empowering it with providing a benefit package never anticipated such a broad definition of who is a dependent.
Thomas, however, noted nothing in that law specifically limits the definition to a spouse and children. He suggested lawmakers might have specifically left the definition vague to give the Department of Administration flexibility to adjust that based on market conditions.
Bell told council members that is what was behind his decision to make the change. He said it will not only "enable us to be competitive but put us in the position to do the right thing."
The competitive element came from Barbara McCullough-Jones, representing Equality Arizona, an organization that advocates on behalf of gay, lesbian, bisexual and transgender issues. She said 13 states and 143 cities, including Tucson, Tempe, Scottsdale and Phoenix, offer such benefits (along with Pima County), as do a majority of Fortune 500 companies and most major universities, including the eight members of the Pac-10 conference other than the University of Arizona and Arizona State University.
Rich Woerth, president of the Tempe Firefighters union, said the policy in his city has helped to keep good employees in his department. And Woerth said this is "not a gay issue," with most of those taking advantage of the benefits being unmarried couples.
But Jim Campbell. who represents Alliance Defense Fund, said Bell's analysis of the cost ignored indirect and social costs.
"The state is recognizing a legal status for cohabiting couples," said Campbell, whose "Christ-centered" organization works against "weakening the family."
He said there is evidence of a higher rate of domestic violence by couples living together than those who are married, "costs that are passed on to citizens of this state and taxpayers."
Phil Hamilton, the state's benefits manager, countered that won't be the case, at least among state and university employees, because of the burdens to qualify.
He said just cohabiting is not enough. Couples have to have lived together for at least 12 months and file a statement saying they intend to do so for at least the next year. They also would need to show some common financial entanglements like a joint checking account or be co-signers on a deed or rental agreement.
"They must demonstrate a firm commitment to one another to qualify for the program," Hamilton said
The cost figures are based on estimates that no more than 2 percent of the 65,000 eligible state and university employees would eventually sign up. There would also be some smaller cost for extending benefits to partners of retirees.