Posted by AzBlueMeanie:
Last week Bisbee legalized civil unions, pushing aside AG's legal warnings. The City of Tempe announced that it too would explore a ciivl unions ordinance. Tempe to begin discussion on civil-union laws. Members of the Tucson City Council have advised me that city Attorney Mike Rankin has been asked to explore the legality of a ciivl unions ordinance for Tucson. Can the City of Flagstaff be far behind? Maybe even Phoenix?
Today in the Arizona Republic, Phoenix Mayor Greg Stanton put these efforts into context. Stanton dons cape, defends little Bisbee against Horne:
Phoenix Mayor Greg Stanton this week said that if Arizona Attorney General Tom Horne has a problem with cities giving legal status to gay and lesbian couples, he should stop bullying tiny Bisbee and take the issue up with the state’s largest city.
Phoenix has had a domestic- partner registry since 2009. Couples who file a declaration of partnership with the city clerk then have a right to visit their partners in any hospital in the city.
“We can’t go beyond our area of jurisdiction,” Stanton said. “But this gives legal status in any area where the city can provide support.”
He said that’s what Bisbee is trying to do with its civil-union ordinance.
“As mayor of Phoenix, I stand with Bisbee,” he said. “I support local control. And if the attorney general wants to pick on somebody, they ought to look at Phoenix.”
Arizona Republic conservative columnist Robert Robb today raises some important questions, but apparently is unaware that these questions are currently pending before the U.S. Supreme Court, which could answer these questions with a sweeping equal protection decision for civil rights on the order of Brown v. Board of Education. It is not something for a corrupt politician under investigation like Tom "banned for life by the SEC" Horne to be hooking his wagon to in a vainglorious fantasy about running for governor. Bisbee civil unions need litigating:
Bisbee clearly can pass an ordinance providing recognition of civil unions. In 2006, Arizona voters rejected a constitutional amendment that would have precluded state and local governments from doing that.
And Bisbee can clearly treat those registered by the town as in civil unions the same as married couples in the conduct of city business.
The ordinance adopted by Bisbee, however, purports to go well beyond that. It declares that anyone who enters into a Bisbee civil union has the same rights and responsibilities as someone who enters into marriage under state law. Now, it says that this is so “within the jurisdiction of the City of Bisbee.” But that is a term without clear meaning, or in some cases even unclear meaning, in this context.
Take the question of community property, for example. State law says that property acquired during the course of a marriage is equally owned by the husband and the wife. Property is widely defined to include basically anything of monetary value.
The Bisbee ordinance says that its civil union partners will have community property rights. But what does it mean to have such rights “within the jurisdiction of the City of Bisbee”? Does it mean that the right only appertains to real property that lies within the city limits and not to real property located elsewhere or intangible property such as stocks and bonds? Do Bisbee civil union partners only have community property rights while living in Bisbee? Do their community property rights extinguish if they move? What if only one of the partners moves?
If there is a legal dispute over community property rights purportedly established by the ordinance, it won’t be adjudicated by the City of Bisbee. It will be adjudicated by a Superior Court judge who will have to weigh what consideration, if any, to give to the ordinance as opposed to state law, under which there would be no such rights.
The same question about whether the Bisbee ordinance exceeds the town’s authority, and what as a practical matter it means if it doesn’t, exists in several other areas, such as inheritance, procuring life insurance and adoption.
Now, Horne is unquestionably political grandstanding a bit by saying he will sue. He is playing up to social conservatives who don’t fully trust him.
But if a court will accept him as having standing in a preemptive challenge, that would be best for all concerned.
People who enter into Bisbee civil unions should know what legal rights and responsibilities are associated with that. That’s far from clear. And discovering the answers through private-party litigation when thing go sour would be hurtful and destructive.
These same questions confront legally married gay spouses who come from states that recognize gay marriage. If legally married gay spouses move to Arizona, their marriage must be recognized as legal by the state of Arizona under the U.S. Constitution. (It must also be recognized as a legal marriage by the federal government. This is why DOMA is unconstitutional).
If legally married gay spouses live in Arizona and acquire marital property, they should be subject to Arizona's community property law the same as any other married spouses. Should one of the spouses die, the other spouse should inherit property the same as any other married spouse in Arizona. Legally married gay spouses should also enjoy the same rights to visitation and medical power of attorney over end of life medical care decisions the same as any other married spouses.
The U.S. Supreme Court could issue a sweeping decision under the equal protection clause of the 14th Amendment striking a blow against invidious state-sanctioned discrimination against citizens based upon their sexual orientation. This would be a victory for civil rights. It would also resolve the questions that Robert Robb poses as something that Tom Horne should concern himself. He should not. Stay out of it.
For what it is worth, the editors of the Arizona Republic endorsed the City of Bisbee's civil unions ordinance. Well done, Bisbee.