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Arizona seeks rehearing en banc in Ninth Circuit benefits case | Hunter of Justice

Arizona seeks rehearing en banc in Ninth Circuit benefits case

by on September 28, 2011  •  In Employment law

The state of Arizona has filed a Petition for Rehearing En Banc in Diaz v. Brewer, the Lambda challenge to an Arizona law that eliminated partner benefits for state employees. In my view, it's a sleeper of a case – one that appears to raise a fairly narrow issue, but which could have important ramifications.

The state's lead argument is that the Ninth Circuit panel improperly affirmed a preliminary injunction blocking a facially neutral law (benefits were eliminated for different-sex as well as same-sex employees) despite the absence of evidence that state lawmakers intended to discriminate against gay couples. This runs counter to a series of court decisions requiring that facially neutral laws be upheld under the Equal Protection Clause unless plaintiffs can show that there was discriminatory intent. The state also cites a string of cases applying that principle to uphold policies in other states that limited benefits to married couples. None is a federal court decision, however, and none are binding on the Ninth Circuit.

There are several problems with this analysis. Most obviously, the question of whether the Arizona law is truly neutral depends on how superficial the test for neutrality is found to be.  Arizona law forbids recognition of same-sex marriage, so only different-sex couples have the option to marry to get the benefits. (Whether this should be considered impermissibly coercive is a different point.) While both sets of couples are affected by the elimination of benefits, neutrality should be determined against the backdrop of the ban on gay marriage.

Additionally, the case is still at the preliminary injunction stage.  As a threshold requirement for issuing the preliminary injunction, the district court found, and the court of appeals affirmed, that plaintiffs had demonstrated a likelihood of success. However, there has been no final determination on the merits and no permanent injunction. Realistically there may not be much more evidence submitted by either side if the case returns to the trial court, but there nonetheless could be a fuller analysis of the merits and, especially and most intriguingly, of the meaning of facial neutrality in this context.

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One Response to Arizona seeks rehearing en banc in Ninth Circuit benefits case

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