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 gays have been allowed to wed legally 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.’’