from the Superior Court in Maricopa County No. CV2016-005335
The Honorable Joshua D. Rogers, Judge
Robbins & Curtin, P.L.L.C., Phoenix By Joel B. Robbins
Co-Counsel for Plaintiff/Appellant
Ahwatukee Legal Office, P.C., Phoenix, By David L. Abney
Co-Counsel for Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix By Ann R.
Hobart, Daniel P. Schaack Co-Counsel for Defendants/Appellees
James P. Beene delivered the opinion of the Court, in which
Presiding Judge Jon W. Thompson and Judge Peter B. Swann
Renee Loncar ("Loncar") sued the State of Arizona
and its associated representatives (collectively, the
"State") for discrimination under the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution and the Privileges & Immunities and
Preferential Treatment of Employees Clauses of the Arizona
Constitution. Loncar claimed the State discriminated against
her based on her gender by offering state employee benefits
to unmarried same-sex couples but denying those benefits to
unmarried heterosexual couples.
We hold that the State did not violate Loncar's state or
federal constitutional rights because Loncar and her male
domestic partner were not similarly situated with same-sex
couples who were legally prohibited from marrying. The
State's action was based on marriage eligibility and
rationally related to a legitimate government purpose.
Accordingly, we affirm the superior court's dismissal of
Loncar's sex discrimination claims.
AND PROCEDURAL HISTORY
Loncar and her male domestic partner, Christopher Kutcher
("Kutcher"), had a long-term, committed partnership
for several decades. They lived together, had two children
together, and shared income and expenses, but they were not
married. In 2006, Loncar was hired by the State. In 2008, the
Arizona Department of Administration and Personnel Board
enacted rules giving certain benefits for "domestic
partners" of state employees, regardless of sexual
orientation. See Ariz. Admin. Code R2-5-101(22)
(2008). Because Kutcher was Loncar's domestic partner,
she identified him as her dependent for state employee
benefits, including coverage for life insurance.
In 2010, the Arizona Legislature enacted Arizona Revised
Statutes ("A.R.S.") section 38-651(O), defining
"dependent, " as relevant here, to mean "a
spouse under the laws of this state, " thereby
invalidating Kutcher's previous designation as
Loncar's dependent for purposes of receiving state
employee benefits. Because same-sex couples were prohibited
from marrying in Arizona at that time, their dependent
designations for state employee benefits were also negated
under A.R.S. § 38-651(O), and they sued for declaratory
and injunctive relief. See Collins v. Brewer, 727
F.Supp.2d 797, 815 (D. Ariz. 2010). On July 23, 2010, before
the statute's effective date, the United States District
Court enjoined the State "from enforcing A.R.S. §
38-651(O) to eliminate family insurance eligibility for
lesbian and gay State employees, and their domestic
partners" and specifically ordered the State "to
make available family health insurance coverage for lesbian
and gay State employees . . . to the same extent such
benefits are made available to married State
employees[.]" Collins, 727 F.Supp.2d at 815.
The Ninth Circuit Court of Appeals affirmed, see Diaz v.
Brewer, 656 F.3d 1008 (9th Cir. 2011), and the United
States Supreme Court denied the State's petition for writ
of certiorari, see Brewer v. Diaz, 133 S.Ct. 2884
(2013). Thus, as of July 2010, same-sex domestic partners
were eligible to be dependents for the purposes of state
employee benefits, but unmarried opposite-sex domestic
partners were not.
On June 7, 2014, Kutcher died in a car accident. Because
Kutcher was not Loncar's dependent under A.R.S. §
38-651(O), he had no state life insurance coverage, and
Loncar received no insurance benefits following his death.
The District Court then dissolved the preliminary injunction
effective December 31, 2014, because, as of that date,
same-sex couples could legally marry in Arizona and, if they
chose to marry, would qualify for state employee benefits
under A.R.S. § 38-651(O).
On April 21, 2016, Loncar filed a complaint alleging sex
discrimination and seeking "a declaration that the
distinction in State benefits between employees in same sex
domestic partnerships and different sex domestic
partnerships" violated the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution
and the Privileges & Immunities and Preferential
Treatment of Employees Clauses of the Arizona Constitution.
Loncar also sought the life insurance proceeds to which she
would have been entitled if she could have designated Kutcher
as her dependent.
The State moved to dismiss, arguing Loncar failed to state a
claim upon which relief could be granted because, among other
things, A.R.S. § 38-651(O) did not confer any privilege
on unmarried same-sex couples that it withheld from unmarried
heterosexual couples. Loncar countered that the State
withheld benefits to unmarried heterosexual couples based
solely on her sex as female, a protected class. After full
briefing and oral argument, in March 2017, the superior court
dismissed Loncar's claims. The court found that (1)
"based upon the plain meaning of the term, 'sex'
refers only to membership in a class delineated by gender,
and not to sexual orientation;" (2) "[a]s [Loncar]
conceded at oral argument, sexual orientation is not
expressly included in the constitutionally protected
class;" (3) Loncar "therefore does not fall within
the protected class and may not bring a claim under the
Preferential Treatment of Employees Clause for preferential
treatment or discrimination based on sexual
orientation;" (4) the State did not violate the Equal
Protection Clause or the Privileges & Immunities Clause
because it "had a reasonable basis in these
circumstances for providing life-insurance coverage to
unmarried same-sex couples" in complying with the
District Court orders; and (5) as determined by the District
Court, "same-sex domestic partners were not similarly
situated with ...