Federal Policy Changes Could Grant New Rights For Married Same-Sex Couples In Arizona

July 22, 2014

(Photo by Nick Blumberg - KJZZ)
Melanie Puskar-Blakely (left) and Tonya Blakely at home with their family in Glendale, Ariz.
(Photo by Nick Blumberg - KJZZ)
Fennemore Craig attorney John Balitis practices labor and employment law.

President Barack Obama's signature on an executive order Monday could have huge implications here in the Valley. The measure bans discrimination against LGBT people who work for federal contractors all over the country. It's the latest in a series of policy changes affecting gay and lesbian people to come from Washington. And Arizona will feel the impact, even though the state doesn't recognize gay marriage.

On a recent evening, Tonya Blakely and Melanie Puskar-Blakely’s house in Glendale is filled with the sound of the four children — between the ages of 3 and 11 — they're raising. The older two are from a prior relationship, and they had the younger two together via artificial insemination. The couple legally married in California in 2008. Puskar-Blakely carried their children, and Blakely says she's fortunate the HOA she works for was a supportive employer.

"I needed to take time off when Ashlyn was born, because she was a 27-week premature baby," Blakely said.

"Sixty-five days in the NICU, and they were very supportive — take the day, take the week, whatever," Puskar-Blakely adds.

Under a new rule proposed by the Department of Labor, other couples like Blakely and Puskar-Blakely could be guaranteed leave from work to care for a sick family member. Currently, rights under the Family Medical Leave Act (known as the FMLA) are based on whether couples live in a state that recognizes their marriage.

The change would grant FMLA rights based on whether couples were legally married in any state.

"Even if you move from Minnesota, for example, to a state like Arizona, when you get to Arizona the fact that your marriage was valid in Minnesota will still allow you to derive your leave rights," said employment attorney John Balitis.

That would be a huge change for Arizona and other states that don't allow gay marriage. It comes after last year's Supreme Court decision in the case United States v. Windsor. The ruling struck down the federal definition of marriage as between one man and one woman, and Balitis said it created some complications.

"Because although Windsor made clear that the definition of marriage in DOMA was unconstitutional, it didn't provide any particular guidance about what to do with that ruling in relation to the FMLA," Balitis said.

Nor did it provide guidance on the slew of other rights extended to married couples that are controlled by the federal government. Last month, the Justice Department issued a memo outlining how federal agencies were adjusting their rules to recognize legally performed marriages between gay people. It covers everything from crop insurance to immigration to federal taxes. There were some policies the feds can't change without legislative action. There are also plenty of things controlled at the state level, like state taxes and family law.

"Every year brings a new issue, a new thing that I've never dealt with before," said family law attorney Claudia Work. She has a lot of LGBT clients, and says there are some legal avenues for same-sex couples with children in Arizona. For example, the state allows couples to obtain a document granting parental rights to a partner not on the birth certificate.

"That's a document that is essential for any same-sex couple who is raising a child in this state if they are not both on the birth certificate," Work said.

Work said Arizona also recognizes adoptions performed in another state. But those legal workarounds could become unnecessary if Arizona starts granting marriages to gay and lesbian couples. That could happen, based on pending legal action.

Jennifer Pizer is Senior Counsel with LGBT law firm Lambda Legal. She says a pair of cases challenging Arizona's marriage ban are among many around the country.

"Ninety-two cases, unless another one was filed since we picked up the phone," Pizer said.

Pizer expects lawyers on both sides of the Arizona case to ask the judge to rule without a full trial. But she also notes that in September the Ninth Circuit Court of Appeals, which covers Arizona, will hear gay marriage cases from Nevada, Idaho, and Hawaii.

"The Ninth Circuit panel will hear the arguments in all three cases on the same day. Whatever the Ninth Circuit does in those cases is very likely to be important in the cases we're doing in Arizona," Pizer said.

Although it's far from a done deal, if the nationwide trend continues and marriage becomes legal for lesbian and gay couples in Arizona, there will still be legal complications. Work said same-sex marriages that end in divorce will need lawyers and judges to figure out things like how to divide property and whether to grant alimony.

And she eventually expects the U.S. Supreme Court to take up the issue of marriage for gay and lesbian couples.