Marriage Equality Goes Local

May 1 2013 @ 11:28am

Balko reports from Bisbee, Arizona, whose officials recently generated a firestorm by passing an ordinance permitting civil unions:

“Both Councilman Conners and I live in the ward with the highest LGBT population,” says Bisbee Mayor Adriana Badal. “And proportionally, Bisbee itself has one of the highest gay and lesbian populations in the state. We decided we wanted to do something real. Not a resolution, but something that carries the force of law.”

The problem is that in the U.S., most legal protections for marriage are codified at the state level. Conners and Badal knew they couldn’t grant rights to same-sex couples that the state wouldn’t enforce, but they did come up with an ordinance that granted as many legal protections as a small town could.

Bisbee, for example, owns a cemetery, so the ordinance granted the same interment rights to same-sex couples and their families that the town gives to heterosexual families. The ordinance also granted same-sex families the right to get family passes at the public swimming pool, the right to the same land-use permits, and — perhaps most significantly — visitation rights and power of attorney to make medical decisions at the local hospital. …

Within 12 hours of the ordinance passing, Arizona Attorney General Tom Horne raised concerns that Bisbee had usurped some of the state’s powers, and possibly violated a constitutional amendment passed in 2008 that defined marriage as “only a union of one man and one woman.” Horne threatened to sue to have the new policy overturned.

Tom Prezelski wonders why the issue has become such a concern to state legislators:

It would be welcome if folks at the Capitol were to look at Bisbee to see what they could do to make sure that such towns have the resources to address issues of economic development and to keep their streets paved. Even though these things are well within the purview of the Legislature, they are hardly a priority for our state’s leadership. Instead, we get this needless meddling in local affairs. … The chest-thumping from Arizona’s political leadership about freedom rings a bit hollow when it becomes clear that they have little respect for the freedom of folks in communities that look different than their own.

State and local officials were able to resolve the issue, however:

Lawyers working with the city council from the pro-gay marriage group Lambda Legal said the city will omit the “spouse” reference in favor of “family partnership” or “registered partnership.” Other references to rights prohibited under the state constitution will be dropped. Instead, the city will work with gays and lesbians to help them enter into civil contracts such as wills and healthcare proxies — already available to any citizen — when they apply for civil union status.

The compromise provides a template for other municipalities in the state seeking to offer some form of legal recognition for same-sex couples. Officials in Tempe, Ariz., said they are considering adopting a similar law in that city.