So what does it mean to be civilly joined in the eyes of Bisbee, Arizona? The artsy Arizona city just passed a same-sex civil union ordinance that allows same-sex couples to enjoy a City Hall ceremony that gets them a formal certificate of union, and yields such benefits as hospital visitation, family passes at the local pool, and benefits for city employees. Can it do that? Domestic partnership benefits to same-sex couples are not uncommon among state and local governments, some have passed ordinances requiring city contractors to offer benefits to same-sex domestic partners. Is extending the benefits to include non-employees using the public pool a difference of degree, or one of kind?
The limiting factor will be Arizona state law — specifically, whether Bisbee is regulating within the scope of its local authority, or if the State’s regulation of marriage means recognizing civil unions for local purposes is off the table. The state attorney general has said Bisbee has no authority to pass the ordinance; the Bisbee’s City Attorney, not surprisingly, disagrees.
Arizona voters passed a Constitutional amendment defining marriage as between one man and one woman in 2008 (Proposition 102), although voters had previously rejected an amendment that would have prevented the State of Arizona (and its political subdivisions, like cities) from recognizing same-sex marriage or civil unions.
The State of Arizona has provided benefits to same-sex domestic partners of employees since 2008. Opponents passed a statute trumping the measure by redefining “dependants” for purposes of health benefits as “spouses” or children — which meant that because same-sex couples could not be “spouses,” they could not be covered by health benefits. In Brewer v Diaz,the Ninth Circuit enjoined the statute on Equal Protection grounds; a petition for Supreme Court review is currently pending. Although the case does not directly affect the Bisbee ordinance, it could affect state’s preemption options.