A city in Arizona has done the unthinkable. They’ve legalized civil unions, putting them well ahead of Arizona’s LGBT-hostile lawmaking majority. This marks an interesting addition to a wider trend: local authorities bounding ahead of conservative legislatures when it comes to LGBT rights.
The City Council of Bisbee, representing the former mining town of 5,600 residents in southeast Arizona, passed in a 5-2 vote this week an ordinance allowing any couple, regardless of their sex or sexual orientation, to have a civil union.
This makes Bisbee the first city in Arizona to recognize same-sex partnerships in any meaningful way and puts it ahead of the Arizona administration who, with Governor Jan Brewer at the helm, is still fighting a court battle to deny state employees same-sex partnership benefits.
The civil unions measure passed by the Bisbee city council, due to come into effect in May, would allow couples to go to City Hall and pay $76, which is also the cost of a marriage license, to receive a civil union certificate.
While the unions would only be recognized within city borders, they would extend a number of important and everyday benefits heterosexual couples might take for granted, such as an affirmation of visitation rights in hospitals, family passes for recreational events and the chance for a partner to “buy in” on certain benefits.
Arizona’s AG Vows Court Action Over The Civil Unions Push
Just hours before the vote, Arizona’s Attorney General Tom Horne lambasted the council, saying it had “no authority to pass the ordinance” and threatened to have the measure blocked in court. “The only proper way to change a statute is through the legislature, not through actions of the city council attempting to change a state statute within its boundaries,” Horne said in a statement.
The AG’s office has said this should not be classed as the AG taking any stance on civil unions — but it clearly is. He is arguing that civil union recognition violates existing statutes. The issue is, the statute says nothing about civil unions and only bans “marriage between persons of the same sex.”
Similarly, Arizona’s constitutional amendment to ban marriage equality, called Proposition 102 and passed in 2008 at the ballot, mandates: “Only a union of one man and one woman shall be valid or recognized as marriage in this state.”
Clearly, the constitutional amendment bans same-sex marriage, but there is no language in the text that prohibits the establishment of civil union recognition like, say, a 2006 amendment (Proposition 107), which failed at the ballot.
Horne’s office has advanced that the Bisbee ordinance changes the law on things like community property access. This argument may have more merit and that will now be for the courts to decide, but the real question seems to hinge on whether the city council has the authority not to change the law, which it doesn’t appear to have done here in any substantial way, but to exceed current state law and institute civil unions.
Interestingly, this isn’t the first time such an issue has arisen.
When Local Officials Stand Up for Fairness
When Nashville-Davidson County in Tennessee voted to exceed state law and extend nondiscrimination provisions to cover LGBT people, the religious conservative majority in the state legislature was outraged and in 2011 promptly passed a law voiding all such ordinances and ensuring that never again could a local authority dare to gallop ahead on gay rights.
Of particular interest, too, might be the background of marriage equality in California. By now most are already aware of the convoluted state of affairs behind Proposition 8 reaching the Supreme Court, but the fight goes much further back than the 2008 ballot measure.
In 2004, newly-elected San Francisco Mayor Gavin Newsom gained national attention when he told the city-county clerk to begin issuing marriage licenses to same-sex couples because, Newsom said, the California Constitution’s equal protection clause gave him authority to grant same-sex marriage licenses. The state’s administration sort judicial clarification and the issuing of marriage licenses was halted by the state Supreme Court.
However, by this time 4,000 couples had already married. Were their marriages recognized under state law? This question and the resulting legal battle directly led to the 2008 ruling, In re Marriage Cases, that legalized marriage equality in California. In November of that year, of course, Proposition 8 passed defining away that right. However, Newsom’s act of defiance which seemed to exceed state law at the time was an important one.
Time will tell if Bisbee City Council’s admirable push for equality will have a similar impact.
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