Ted Simons: The ninth circuit Court of Appeals ruled yesterday that the state must provide benefits to same-sex partners of state employees. The action requires the state to continue benefits to domestic partners until a full hearing is held on the merits of the case. Joining us now with more on the court's ruling is Dan Barr, an attorney for the plaintiffs in this particular case. Good to see you again.
Dan Barr: Thanks for having me.
Ted Simons: What did the ninth circuit rule?
Dan Barr: It affirmed the district court ruling from last summer in all respects and held that the state of Arizona simply had shown no rational basis for prohibiting same-sex couples from getting domestic partner benefits.
Ted Simons: Is the court saying if they're going to offer healthcare benefits, you got to offer them to all?
Dan Barr: You can't -- you -- the court said you don't have to offer healthcare benefits no anyone.
Ted Simons: Uh-huh.
Dan Barr: But if you offer healthcare benefits, you can't exclude a particular group arbitrarily and in a discriminatory fashion and what the state of Arizona has done here, said for gay and lesbian employees, you can't get these benefits. And can't get them not only because you're not married, but we prohibit you as a matter of law from getting married. So it's impossible for gay and lesbian to get the benefit.
Ted Simons: The idea there's no other option, I want to get into that more. What about opposite sex domestic partners? How are they impacted by state law?
Dan Barr: As it stands, they don't get the benefits. There are 140,000 state employees and retirees and dependents who get these benefits. Of those, approximately 800 who were domestic partners. And of those, there's a small percentage who are gay and lesbian. So the heterosexual ones do not get the benefits.
Ted Simons: Some watching would say it doesn't sound fair. And the court said the same-sex partners can. That sounds like inequality there.
Dan Barr: People can make that public policy argument but for the heterosexual couples they have an argument, they can get married. The same-sex partners don't have that option. So there are no circumstances whatsoever they could ever get these benefits.
Ted Simons: So basically what you're saying is that extra option as we get back to the impossibility for the same-sex partners because there's no other option, you've got to go ahead and move ahead with this?
Dan Barr: That's correct. It's one. Things if it were legal in Arizona for same-sex people to get married, then the state could remove domestic partner benefits for everyone. Because you -- people would have the option of getting married or not.
Ted Simons: The governor's office says that imbalance flies, the quote, flies in the face of logic and the law. How do you respond?
Dan Barr: They have lost on that argument in two courts and we've had four judges say that the state has yet to show a rational basis. If they want to make that argument, fine, they'll continue to lose with it.
Ted Simons: But when the governor's office again says that the court has basically created an inequality, are they wrong?
Dan Barr: Well, the state of Arizona are the people who created the inequality. They removed the benefits. And they did so in a way that for a certain segment. The workforce, the gay and lesbian workforce, they made it impossible for them to get the benefits. What this really is an equal pay for equal benefits thing where you have two state employees doing exactly the same job. One is heterosexual and has the availability to get these healthcare benefits and the other doing the exact same job can't get those benefits. That's unequal treatment under the law.
Ted Simons: So when, again, the governor's office here speaking, not the governor herself, we didn't hear from her but her office, that the court's motivation, plaintiff's motivation, maybe even your motivation is to legalize gay marriage, how do you respond?
Dan Barr: Well, all of our plaintiffs signed affidavits say they're in committed relationships and given the option they would want to get married so I don't think it should surprise anyone that any of these people would want to get married. They've said so under oath. I would advise the governor's office, whoever is making the statements that those arguments don't fly in court and they need to come up with arguments. They failed to do so far in over a year of litigation and had four judges say their arguments are irrational. To flunk the rational basis test is a true achievement. The fight in constitutional litigation is what analysis applies. The strict scrutiny analysis, intermediate or rational. If you get strict scrutiny, the plaintiff almost always wins, rational basis, the state almost always wins, here the state of Arizona has lost twice under the rational basis test.
Ted Simons: Are you expecting to go to the full 9th circuit or the Supreme Court?
Dan Barr: My hope is and maybe I'm naive, people in the state are going to go, why are we fighting this fight? It doesn't involve much money, doesn't involve very many state employees and we've had four judges tell us it's irrational. Why are we doing that. Hopefully, they'll do that. If not, you know, they can go before the full ninth circuit, they can file a petition for certiorari in the U.S. Supreme Court and I expect that to all be unsuccessful or we can go back before a full trial before a judge who has already said the law is irrational.
Ted Simons: All right. Good to have you here.
Dan Barr: Thanks for having me.