Ted Simons: Good evening, and welcome to "Horizon," I'm Ted Simons. Arizona's 2012 presidential primary is set for February 28th. Governor Brewer had considered moving the primary to late January, but instead settled for the February date, along with a tentative agreement for Arizona to host a Republican presidential debate in December. Last week a panel of judges from the 9th Circuit Court of Appeals sided with a lower court's decision to block an Arizona law that denies health benefits to same-sex partners of state employees. On the day of the decision we heard from an attorney representing plaintiffs in the case. Tonight we hear from State Representative John Kavanagh, a Republican from Fountain Hills who chairs the House Appropriations Committee. Good to see you again. The 9th Circuit upholds this injunction, were you surprised?
John Kavanagh: No, it's the 9th Circuit. I mean they are probably one of the most liberal circuits in the country and they’re the most overturned circuit.
Ted Simons: District Court Judge says no rational basis, 9th Circuit says no rational basis; that's kind of like the starting point, isn't it? What's going on here?
John Kavanagh: The 9th Circuit it was a three-judge panel and they didn't look at all the facts, they were ruling on the preliminary injunction. There wasn't really a thorough vetting there. We're confident we're going to win because the level of examination is supposed to be rational basis. They use this new morphed thing called heightened rational basis and it just doesn't apply. What we have to establish is that there is a reasonable purpose for us doing what we did. And we have many reasonable purposes.
Ted Simons: How do you get past the fact that the court -- now four judges here with the three-panel and the district court judge—four judges have looked at this and said what you’re doing is discrimination and if you don't offer the benefits for everyone, no problem, but you can't offer it to some and not to others.
John Kavanagh: First of all, it's not discrimination. We didn’t discriminate against anybody. We simply reinstated the historic policy in Arizona that we give domestic partner benefits only to married couples and their children. It was Governor Napolitano who illegally, by administrative order, circumvented the legislature. But beyond that, we didn't say, “Hey, we don't want to cover gays, let's remove them.” We didn't. We believe that out of respect for the voters who passed a protect marriage amendment, which says marriage is only between a man and a woman; to protect the process which says the legislature are the ones who make these decisions; and most importantly, to say – to protect marriage that it was necessary to restrict these benefits to just the traditional married couples.
Ted Simons: So the straight married worker gets a certain bunch of benefits here. The gay and lesbian worker doing the exact same job, not allowed to get the same sort of benefits here? That's equal? That's fair? That's constitutional?
John Kavanagh: What we’re saying -- it is constitutional. Most states have it that way, the federal government has it that way. What we're saying is we're only going to provide benefits to, other than the employee, if it is a man and a woman marriage. We are not going to give benefits to unmarried people regardless of whether they are heterosexual or homosexual, because it's poor public policy.
Ted Simons: But the unmarried people, if it's an opposite sex couple, they can do something about it they can say, “Alright let’s go ahead and get married and get it over with.” The state and lawmakers and legislature, leading the way here with voters, decided we're not going do that for gays and lesbians. Again, that doesn't sound equal, according to the courts.
John Kavanagh: Let me respond in two ways. First, that's a ridiculous argument. Most people are not going to run out and get married and have all of the complications and responsibilities just to get insurance coverage.
Ted Simons: But the Court says the option is at least there--
John Kavanagh: But that's irrelevant. If you go through the history, the Supreme Court decisions, the rational basis argument simply says, “Did the legislature do something for a reasonable purpose?” And we did. We are attempting to -- besides saving money, we're attempting to support marriage because we believe that the traditional definition of marriage is the best for society and, most importantly, the best for children.
Ted Simons: But if there is no -- according to the courts now -- if there is no equal protection in what you do, the courts are going to say no to this.
John Kavanagh: That's not correct. First of all, the 9th Circuit itself in one of its decisions, High Tech Gays v. Defense Industrial Security, said that homosexuals as a group do not have protection against discrimination, that they are not a group that requires a higher level of scrutiny than rational basis. The U.S. Supreme Court also said that under rational basis that courts don't have a license to "judge the wisdom, fairness or logic of legislative choices." This is a legislative issue. If people think they want to extend the coverage to straight and gay unmarried people, then let them do what everybody else does- put it on the ballot or have a bill introduced and argued in a legislative committee.
Ted Simons: Basically what you’re saying and I’m going back to the two workers, the one that's straight and the one that's gay, and the one that's straight has the option of getting married if they wanted to pursue that and get those benefits for their partner, but there is no -- it's an absolutely dead end for the gay and lesbian worker. Again, the courts are saying that is not equal protection.
John Kavanagh: We're saying to the courts that we're not going to give either of those groups benefits if they are not married. This is an issue of married versus unmarried.
Ted Simons: I don't want to go too far. I just want to reiterate this: The court was very clear. They are saying, “Yes, that's fine, then don't give benefits to anyone.”
John Kavanagh: But the court was very clear, but very wrong. We’re talking about one judge flew in from Alaska to look at this decision. Then we have a three-judge panel, who didn’t look at the whole case, who were all Democrat appointees. I think there may be some politics involved or at least different judicial philosophies than you might get from the full 9th Circuit Court or the U.S. Supreme Court.
Ted Simons: Should the state go to the full 9th Circuit Court of Appeals, or go ahead and bypass the Supreme Court?
John Kavanagh: That's a decision I will leave to the lawyers, whatever they think is tactically best for us we should do. If we don't prevail before this three-judge panel, I want to appeal it until we have exhausted all appeals. We have an extremely strong case. This judge is trampling all over numerous Supreme Court and 9th Circuit Court of Appeals precedents and all over the legislative branch. This is not the way the Constitution is set up.
Ted Simons: They were saying because you can't get past the rational basis aspect, it's a particularly not strong case.
John Kavanagh: That's not true. If you look at the rational basis, the only requirement for rational basis is that we prove we have one reasonable reason. It doesn't even have to be one that was articulated at the time of the passage. We have five good reasons, the biggest being we want to support marriage as an institution. Once we established that that was our purpose and it's reasonable, we've won the rational basis argument.
Ted Simons: Last question- if four judges don't think you have won that rational basis criteria, the Governor's office is suggesting this, that all this is one big ploy to legalize gay marriage. Is that what you're seeing out of all of this?
John Kavanagh: I cannot look into the motives of people, and I don't like to do that because then you judge people. It's kind of like name-calling. All I know is this: I've looked at the briefs, our briefs, briefs from groups that support us. They cite a litany of Supreme Court and 9th Circuit precedents that say that this judge is totally off the mark in what he said, and that the three-circuit panel is also wrong. I'm not going to be critical of them at this stage because they only gave it a cursory review, in terms of the injunction.
Ted Simons: Good to have you here.
John Kavanagh: Always a pleasure.