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Gay-rights hearings give few clues on pending Arizona case

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WASHINGTON – The historic same-sex marriage arguments before the Supreme Court this week could hold the answer for gay couples who sued Arizona in 2009 to get access to spousal health-care benefits for their partners.

Or not.

Predicting the effect of this week’s hearings on the Arizona case, Brewer v. Diaz, is about as tricky as filling out March Madness brackets, with about as many possible outcomes.

“It’s impossible to say at this point,” said Lawrence J. Joseph, a lawyer who filed a friend-of-the-court brief for the Eagle Forum in support of Arizona.

Joseph’s opinion was shared by many of the lawyers involved in the case, who were hesitant to predict the impact on Arizona of the high court’s rulings in the cases it heard this week – challenges to California’s Proposition 8 and to the federal Defense of Marriage Act.

While the court ponders those cases, Brewer v. Diaz waits in a sort of legal limbo with a handful of other gay-rights cases. The Supreme Court has not agreed to hear them, but has not rejected them yet, either.

“The Supreme Court could say a number of things that could have a major effect,” said Tara Borelli, the lawyer who argued for the state employees who sued in Brewer v. Diaz.

The case stems from a 2009 state law, known as Section O, that said domestic partners of state employees could not get health coverage through the state, as spouses of state workers can.

The law affected all unmarried couples, whether same-sex or opposite-sex. But gay state employees argued that the law was discriminatory because they do not have the option under state law to get married, as heterosexual couples do.

Lower courts agreed and blocked the law, letting state employees in long-term relationships continue to extend their benefits to their partners. That sparked the state’s appeal to the Supreme Court.

The cases heard this week deal more directly with same-sex marriage. Proposition 8 is a California voter-approved measure that defines marriage as between one man and one woman. The Defense of Marriage Act, or DOMA, also bans same-sex marriages and says governments do not have to recognize such a marriage sanctioned by another state or local government.

Lawyers on both sides of the issue say a decision on Proposition 8 may apply most directly to the Arizona case. They said the two cases mirror each other: Gay couples in California had their ability to marry revoked in the same way gay couples in Arizona had their access to health benefits revoked.

But the Supreme Court first has to issue a decision in Proposition 8, and some court watchers believe the justices may dismiss the California case. During arguments Tuesday, justices asked repeatedly whether the backers of Proposition 8 case could show they had suffered harm and had the standing to press the case.

If the justices rule on the merits of Proposition 8, the decision is likely to be narrowly tailored to the California situation, lawyers said. That could lead to the high court finally agreeing to take up Brewer v. Diaz, or sending it back to the 9th U.S. Circuit Court of Appeals to be reconsidered in light of its Proposition 8 ruling.

It is possible the Supreme Court could issue a broader ruling, deeming California’s ban on same-sex marriage unconstitutional in way that would apply nationwide. That would essentially clear the way for same-sex marriage and all but settle the issues in the Arizona case.

But few are predicting such a decision, and proponents of traditional marriage say it is not the courts’ place to interfere with state laws that have historically set the standards for marriage.

“The democratic process needs to take its course,” said Cathi Herrod, president of the Center for Arizona Policy, which pushed for Arizona’s ban on same-sex marriage.

Herrod believes the widely reported swing in public opinion toward support of same-sex marriage has been overstated, pointing to the large majority of states that ban gay marriage.

“The poll that counts is the poll at the ballot box,” she said.

Borelli counters that in a democracy, equal protection under the law should not be up for a vote.

“It’s not supposed to have a popularity contest,” she said.

A ruling on DOMA may not apply as directly to Arizona’s laws. If the court strikes down the federal law, all the states’ laws would still stand. If the justices rule the one-man, one-woman definition of marriage is constitutional, that could entrench bans like Arizona’s.

While they will not make predictions, advocates on both sides hold out hope for a favorable ruling.

“Whatever they decide I think we are on a long-term path for full equality for same-sex couples,” Borelli said.

Ken Connelly, a lawyer for the Alliance Defending Freedom, which defends the traditional definition of marriage, said he hopes the court will “let the debate continue where it should – at the people.”