Jan Brewer

So much attention has been paid to the landmark challenge to California’s ban on same-sex marriage that another very important case regarding gay couples has gone almost unnoticed. And this latter case will be heard before the 9th Circuit U.S. Court of Appeals on Monday, February 14—Valentine’s Day.

The case is Collins v. Brewer from Arizona. The case, brought by Lambda Legal Defense and Education Fund, pits a group of 10 gay state employees (including Tracy Collins) against a new state law barring them from signing up their domestic partners and children for family health insurance coverage. Such family coverage is made available to straight employees who are married.

In 2009, Governor Jan Brewer signed budget legislation that included a measure—referred to as Section O—to prohibit gay state employees from signing up their domestic partners for health coverage, as they had been allowed to do under former Governor Janet Napolitano. That new law was due to go into effect on January 1 of this year, but a federal district court judge last July ordered the state not to begin enforcing it. The court then later ruled that Section O violated the U.S. Constitution’s guarantee of equal protection by discriminating against the gay state employees based on their sexual orientation and the sex of their life partner.

The state appealed that decision to the 9th Circuit. Judges Sidney Thomas and Mark Bennett (both Clinton appointees) and Mary Schroeder (a Carter appointee) will comprise the panel hearing the appeal.

Attorneys for Arizona argue that the district court’s decision was “illogical.”

Noting that only 20 states and the District of Columbia offer health insurance coverage to state employees’ domestic partners, the state argues that it had “no obligation” to provide health insurance coverage to domestic partners but did so, in 2008, “to evaluate the policy in terms of potentially attracting and retaining employees.” When, a few months later, it decided to limit coverage to married spouses only, it did so for “all domestic partners regardless of their sexual orientation.”

What that argument leaves out, of course, is that opposite-sex domestic partners can get married in order to take advantage of the state’s health insurance coverage, while same-sex couples cannot.

Same-sex couples are barred from obtaining marriage licenses in Arizona, but under Napolitano, the state had allowed gay and lesbian state employees with a “committed same-sex partner” and/or the partner’s qualifying children with access to family health insurance coverage, the same as straight employees who were married.

In its brief to the 9th Circuit U.S. Court of Appeals, Lambda notes that Section O reduces the compensation of gay employees compared to straight employees but does not reduce their duties at work.

“State Employees rely on family coverage as an important part of their compensation for the same reasons that their married, heterosexual colleagues do,” argued the Lambda brief, “to help care for their family members and to avoid the stress of health emergencies that easily can lead to irreversible financial harm such as bankruptcy….”

Lambda expert witness Lee Badgett estimated that 63 of the 893 domestic partners currently insured through the state’s health insurance coverage are same-sex partners. Thus, the cost of providing equal insurance coverage to gay employees would amount to an increase of less than one percent to the state’s current health insurance expense.