Loncar v. Ducey – 5/22/2018

June 20, 2018

Arizona Court of Appeals Division One holds that offering benefits to unmarried same-sex couples but not to unmarried opposite-sex couples is not unconstitutional sex discrimination.

This case was brought by a heterosexual female employee of a state agency.  The employee identified her male domestic partner as her dependent for her state employee benefits (including life insurance) pursuant to agency rules enacted in 2008.  In 2010, the Legislature enacted a law (A.R.S. § 38-651(O)) defining “dependent” as “a spouse under the laws of this state” for the purpose of invalidating same-sex domestic partner benefits.  That law was later enjoined by a federal court, which also ordered the state to make family insurance coverage available to gay and lesbian state employees “to the same extent such benefits are made available to married state employees.”  The employee’s partner died in June 2014 and because he was not a dependent under § 38-651(O), he had no state life insurance coverage and the employee received no insurance benefits.

The employee sued, claiming that she had been discriminated against on the basis of her sex and that the state’s distinction between same-sex and opposite-sex domestic partnerships violated various provisions of the United States and Arizona constitutions.  The superior court dismissed the employee’s claims, finding that the plain meaning of sex does not include sexual orientation and that sexual orientation is not a protected class for purposes of claims under the Preferential Treatment of Employees Clause of the Arizona Constitution.  The trial court also concluded that the state had not violated the Equal Protection Clause of the US Constitution or the Privileges & Immunities Clause of the Arizona Constitution because it had to comply with a federal court order.  After an unsuccessful motion to set aside the judgment, the employee appealed.

The Court of Appeals affirmed.  Considering the employee’s Equal Protection and Privileges & Immunities arguments, the Court applied a rational basis test and concluded that the state’s actions were constitutional for two reasons:  (1) the employee and her partner were not similarly situated to same-sex couples because they had the legal right to marry and could have obtained employee benefits in that fashion, whereas at that time, same-sex couples could not; and (2) the state’s actions were rationally related to a legitimate government purpose – compliance with a federal court order.  The Court also dismissed the employee’s argument under the Preferential Treatment of Employees Clause, concluding that the state had not offered preferential treatment on the basis of sex because eligibility for domestic partner benefits was based solely on eligibility for marriage, which was in turn determined by sexual orientation, and the employee conceded that sexual orientation was not a “constitutionally protected class.” 

Judge Beene authored the opinion, which was joined by Judges Thompson and Swann