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May 05 2013

Bisbee, Arizona Wants Civil Unions

Our old friend Radley Balko reports on an attempt by the little town of Bisbee, Arizona to allow civil unions to be performed, something the state says is forbidden and is trying to stop. The state attorney general even filed a lawsuit to stop it, though it has apparently now been settled.

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.

Other cities in Arizona have granted certain rights to same-sex couples, but none has gone as far as Bisbee has. The bill passed the city council 5-2. But that vote was only the beginning of a battle that has since put the town in the spotlight.

Now a compromise has been reached with the state:

Arizona Attorney General Tom Horne withdrew his threat to sue Bisbee on Monday after its lawyers agreed to rewrite a controversial ordinance recognizing same-sex couples and remove rights that Horne said were reserved for married couples as defined under Arizona law.

Bisbee will still grant same-sex couples official recognition under the agreement, but its civil-union ordinance will not be as groundbreaking as first envisioned.

The resulting language, which the Attorney General’s Office will help oversee, could provide a blueprint for other Arizona cities to confer some legal status on same-sex partnerships…

“We were concerned if the ordinance were to be enacted as written, it would be misleading,” Horne said. “People can inherit by wills, and people can enter into contracts with each other, which are binding under current law. Our fear was that people would refrain from doing that, thinking they were covered by civil unions.”

He wanted the ordinance to be clear that a civil-union contract could not confer rights covered by state law. Bisbee officials have said they intend to hold another vote and put the new version of the ordinance into effect later this summer.

Attorneys for Lambda Legal, a national legal organization that fights for civil rights for the gay community, who are providing technical advice to city officials, said they have also suggested that Bisbee remove any future confusion over the same-sex ordinance by replacing the phrase “civil union” with something like “registered partnership” or “family partnership.”

“There’s no dispute that the goal here is to have an ordinance that takes some new, creative steps to provide recognition for families in Bisbee and to provide some additional protections that the city has the ability to provide, perhaps in some new ways by allowing a public record for agreements that couples can make and official designations that any individual can make,” said Jennifer Pizer, law and policy project director for Lambda Legal. “These can be practical tools for families, and I think none of that is controversial.”

The only reason I know that Bisbee even exists is that it is the home of Doug Stanhope, one of the funniest — and sometimes most enraging — comedians of this generation.

9 comments

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  1. 1
    steve84

    Horne faces a very tough reelection after some scandals, so he can’t appear weak on the gays. Attorneys General frequently do nothing but political posturing because it’s an important office and one often used a stepping stone for governor. Which is the main reason why they shouldn’t be directly elected.

  2. 2
    alanb

    Bisbee is also the home of Sheriff Joanna Brady, the main character in a bunch of mystery novels by J. A. Jance.

  3. 3
    D. C. Sessions

    And for those who don’t know Bisbee (and if you get a chance, visit. Especially in the fall. And don’t miss Karchner Caverns nearby):

    Formerly one of the biggest copper-mining towns anywhere, when the mines played out it turned into an arts and tourism town. When the kids were little we took them to the “haunted mine” (and trust me, mines with the lights out are pretty spooky as is) in the fall.

    About as liberal as you’re likely to get in Arizona. They do a pretty good job of mixing refugee-from-the-60s friendly and old-West hospitable.

    Which is a long-winded way of saying that if anywhere in Arizona will push the limits to do the right thing, Bisbee is high on the list.

  4. 4
    postwaste

    I thought the big argument for “states’ rights” is that the closer government is to the people the more responsive, hence better, it is. How can states’ rights advocates argue against municipality rights?

    The whole states’ rights issue has always seemed arbitrary to me.

  5. 5
    D. C. Sessions

    The one and only idea of “States’ Rights” is to keep the Yankees from interfering with the feudal privileges (including slavery) of the Southern aristocracy and (admittedly) vice versa: to keep slavery out of free States.

    That was, and is, it. The rest is rationalization.

  6. 6
    Gretchen

    No, postwaste is quite right– that is the argument generally offered by states’ rights advocates. They just have no real logical defense against the fact that this same argument would’ve allowed the Southern states to keep legally permitting slave ownership. That doesn’t mean that’s the “one and only idea” of it.

    For that matter, sovereignty of nations allows the federal government to legally permit slavery, if it so chooses. It’s just that abuses of justice like slavery are generally more likely to be permitted at the state level at this point in history, so generally speaking it’s best for the fed to be able to rein in the states. But there are obviously occasions in which this will not be the case, and individual states want to be more just that the federal government permits– legalizing marijuana comes to mind.

  7. 7
    sundoga

    There are good reasons for states’ rights. There are also good reasons for the federal government to, at times, override states’ rights. Maintaining a balance of power between the two levels of government reduces the chances of either being able to drive unjust or tyrannical actions through to the detriment of some or all of the populace.

  8. 8
    steve84

    Usually “state’s rights” are only ever brought up when it’s about denying rights to some group. And they are indeed extremely hypocritical about it. I think it was Tennessee that passed a bill that forbids any city from passing anti-discrimination laws that are more expansive than the state laws. Of course again, this was targeted at gays. As it always is these days.

  9. 9
    D. C. Sessions

    As it always is these days.

    Only because those activist judges and Federal tyrants have taken away their ability to do the same for women, non-Christians, Catholics, those with disabilities, and of course brown people.

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