Challenge to Arizona law ending same-sex partner benefits for state employees may go en banc or beyond

by on September 18, 2011  •  In Constitutional law, Employment law

In a ruling just after Labor Day, the Ninth Circuit upheld a preliminary injunction against enforcement of an Arizona law eliminating partner benefits for unmarried couples insofar as it affects same-sex couples. In Diaz v. Brewer, a panel consisting of Judges Schroeder, Thomas and Bennett affirmed the order issued by the District Court in 2010 (727 F.Supp.2d 797). 

In its opinion, the Ninth Circuit found that there no was no rational relationship between the statute and a legitimate state interest. The state's primary defense was cost savings. Both the lower and appellate courts rejected that rationale, based on evidence that the cost of providing benefits for same-sex couples was minimal and on the fact that different-sex couples could marry and thereby obtain access to the benefits. Perhaps most notably, the Court of Appeals found that there was an Equal Protection violation based on the disparate effect on same-sex couples of the rule, which is to say, the court did not require a finding of discriminatory intent behind the law.

If it is not upset by a subsequent ruling, the decision in Diaz may play an important role in the Ninth Circuit's consideration of the constitutionality of Prop 8. The Diaz plaintiffs, represented by Lambda Legal, are waiting for Arizona to decide whether to seek rehearing en banc; the state has until September 27 to file.

The big question is whether this case could take the inside track to the U.S. Supreme Court. If the Ninth Circuit denies the motion for rehearing or if the case does go en banc and the state loses again, Arizona could seek Supreme Court review.


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