Horizon, Host: Ted Simons

August 19, 2010

Host: Ted Simons

Domestic Partner Benefits

  • The latest on the legal challenge to an Arizona law that denies state health benefits to domestic partners of state workers. Dan Barr, an attorney for the plaintiffs; and State Representative John Kavanagh discuss the case.
  • John Kavanagh - Arizona State Representative
  • Dan Barr - Attorney
Category: Medical/Health

View Transcript
Ted Simons:
The legal challenge to California's gay marriage ban continues to make headlines. A similar fight is taking place in Arizona. It's over state health benefits for unmarried couples. In 2008, Governor Janet Napolitano made domestic partners of state employees eligible for benefits. But last year, lawmakers changed the requirements, effectively denying coverage to domestic partners. A lawsuit was filed in federal court on behalf of gay state employees who say that they don't have equal access to health insurance because they can't get married. Last month, a federal judge agreed and blocked the law, saying it's unconstitutional. The state is planning to appeal. Joining me now is state representative John Kavanagh, who chairs the house appropriations committee. And Dan Barr, an attorney representing plaintiffs in the lawsuit. Thoughts on the injunction?

John Kavanagh:
I'm disappointed. First, it's a bad law. Bad policy in terms of who it applies to and it was illegally passed. Laws are supposed to be passed by elected legislators or in the case of referendums and initiative, by the people. In this case, it was totally bypassed and you had an administrator making an administrative rule on a major policy decision. And this is too common. We have talks about the Obama administration wanting to create comprehensive reform by regulation. That's not the way we do it in this country. And today, it might be a law you or somebody else might agree with. Tomorrow it might be one you don't.

Ted Simons:

Dan Barr:
This has nothing to do with agreeing or disagreeing with something. It has do with what the constitution provides and this is purely a equal pay for equal work issue in that gay and lesbian state employees who have domestic partners have the same rights as anyone else.

Ted Simons:
When we hear the legislature has the authority or should have the authority regarding state benefit decisions, you say?

Dan Barr:
Well, I mean, this was a legally passed regulation and you know, my clients are not interested in the food fight between the legislature and the governor about who has power to do what.

Ted Simons:
The idea of who has power do what seems to be separate and apart from what a judge says is constitutional.

John Kavanagh:
I don't think a rule that restricts the benefits to a traditional parents and children is unconstitutional. Look at federal law, if the military if you openly say you're homosexual, you're thrown out, I mean, federal law is -- it's permeated with situation where is traditional families and heterosexuals are given certain advantages and that's not unconstitutional. So how a federal judge can fly from Alaska to Arizona, and based on reasonable purposes in federal law claim that our benefits law is unconstitutional is -- it bewilders me.

Dan Barr:
Representative Kavanagh read the opinion, maybe he wouldn't be so bewildered. The judge ruled that Arizona's -- Arizona flunked the lowest possible constitutional analysis, the rational basis test, which the state almost always wins under. And here, the state said that distinguishing between homosexual and heterosexual employees who have domestic partners is irrational. Distinguishing between people with red hair and who don't have red hair.

Ted Simons:
Why were you pushing that?

John Kapanagh:
First, I did read the opinion. I have it here. Not that long, I urge everyone to read it. Especially the insomniacs among us. We won half the case. The arguments by plaintiff, about due process, the just threw out. It comes down to equal protection. How can the military, the tax code and all sorts of federal agencies give preferential treatment to traditional relationships and how can a judge say we can't apply that to benefits for state employees.

Ted Simons:
How can a state legislature representing all people in Arizona deny health insurance to employees same-sex partners? Why was that important to do?

John Kapanagh:
Because we believe from a standpoint of policy that you don't give out benefits to everybody. The way this was written doesn't just give benefits to homosexual partners. If you and a friend a college buddy and one of you works for the state and he takes out a $10,000 life insurance policy and makes you a beneficiary and you do one other things, like a joint savings account, guess what? The state is paying for half of your health insurance. That's bad policy.

Ted Simons:
Bad policy?

Dan Barr:
If that was the fact, it would be bad policy. But it's not the facts. These are people in committed relationships and all the plaintiffs in this case have submitted affidavits they would get married if they were able to. They have children, financially interdependent upon each other. This is not some out liar case. The U.S. Supreme Court twice struck down antigay legislation from Colorado and Texas under the rational basis test and the judge in California struck down proposition 8 under the rational basis case as well. These are four cases in which the courts are holding that the laws are irrational and striking them down.

Ted Simons:
Why not a legal definition of marriage as a barometer for benefits?

Dan Barr:
Well, that would be ok, if homosexual employees had the option of getting married. What happens here is they get put in a catch 22. You can't get benefits because you're a domestic partner and there's no way for you to ever get them because you can't get married and they're in a different choice than heterosexual partners.

Ted Simons:
Does that sound fair?

John Kapanagh:
I have the criteria, it's in the lawsuit which I read and it clearly states that what I said can happen easily. You only the have to meet three of seven criteria to qualify. Like being on a lease and having a joint bank account. The policy is bad policy and in terms of the California prop 8, that judge's decision to throw that out was immediately stayed by the ninth circuit, not exactly a homophobic hotbed of judicial activism.

Dan Barr:
He stated his own opinion. That's inaccurate. Let's talk about the forest and the trees here. Arizona has 140,000 employees and retirees and dependent who is get healthcare benefits. Of those, only 800 state employees get benefits for domestic partners and that includes heterosexual and homosexual. Of the 800, only a small fraction are gay and get the benefits. It's a small amount of money here.

Ted Simons:
We have to stop it right there. Good conversation. Thank you for joining us.

John Kapanagh:
Any time.

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