Originally Published: May 23, 2018 5:52 a.m.
PHOENIX — Heterosexual couples that always have had the right to marry in Arizona are not entitled to the same benefits that the state provided to gay couples who were not at the time entitled to wed, the state Court of Appeals ruled Tuesday.
The judges rejected claims by Renee Loncar, who worked for the state, that she should be entitled to death benefits following the death of her live-in partner Christopher Kutcher.
Judge James Beene, writing for the unanimous panel, acknowledged that Loncar would have been paid the death benefit had her partner been a woman. That is because a 2010 federal court ruling forbid the state from denying benefits to same-sex domestic partners that it provided to its married employees.
But Beene said refusing to recognize Loncar as Kutcher’s domestic partner was not illegal discrimination.
Attorney David Abney, who represents Loncar, said the judges missed the key point by confusing the issue with relationships and gender.
“If she had been a man, she would have gotten the benefits,’’ he said.
Similarly, Abney said if Loncar had been living with a woman she would have been entitled to the death benefits.
“What the factor that’s at issue here?’’ he continued. “Sex. Nothing but sex.’’
And that, Abney said, makes what the state was doing unconstitutional discrimination. He vowed to seek state Supreme Court review.
What the justices ultimately decide will have limited impact. That’s because same-sex marriage has been legal in Arizona since the end of 2014.
But Abney said there is still an important principle to be determined: How far do constitutional provisions against sex discrimination extend.
Court records show Loncar was hired by the state in 2006.
Two years later, then-Gov. Janet Napolitano pushed through a change in personnel rules to provide benefits for “domestic partners’’ of state employees regardless of sexual orientation.
Loncar then listed Kutcher as her partner, signing him up for various benefits including life insurance.
Two years later, with Napolitano gone and Jan Brewer now governor, lawmakers voted to override the policy and limit benefits to married couples.
A federal judge blocked that law, saying it was illegal to deny benefits to gays who could not wed. He ordered the state to make coverage for gay state employees “to the same extent such benefits are made available to married state employees.’’
That order, however, did not cover heterosexual employees who were not part of the lawsuit.
Kutcher died in a 2014 car accident, but Loncar received no benefits. She sued in 2016 for Kutcher’s insurance, claiming illegal discrimination.
But Beene said the state did nothing wrong in offering benefits to same-sex couples as required by the court order but not to heterosexual couples.
“Loncar and Kutcher had the fundamental legal right to marry and could have obtained employee benefits, including insurance on Kutcher’s life, as a spouse under the laws of this state,’’ the judge.
“Nothing in the state’s decision to offer benefits to same-sex couples impeded or prevented Loncar from doing so at any time,’’ Beene continued. “In contrast, short of litigation, same-sex couples had no option to legally marry to obtain employee benefits.’’
Put simply, the judge said, the state complied with the 2010 federal order which was to make the same benefits available to gay employees as it did for its workers who could legally marry.
The appellate judges also brushed aside that the state effectively was forcing her into marriage to get benefits was “an assault on personal choice and individual freedom,’’ arguing that the U.S. Supreme Court decision allowing gays to wed also means that people have the “right not to marry.’’
But Beene said that high court ruling dealt only with claims by same-sex couples that they were being denied the same rights and privileges as married couples.
“Loncar has always possessed that right — the personal choice and individual freedom to marry (or not marry),’’ the judge wrote.