July 9, 2012
By Scottie Thomaston
In 2009, Lambda Legal brought a suit in Arizona against its attempts to cut off domestic partnership benefits for gay and lesbian state employees. A 3-judge panel at the Ninth Circuit Court of Appeals granted a preliminary injunction that would keep benefits in place while the case is heard, and when the state sought an en banc rehearing with an 11-judge panel, it was rejected. Dissenting from denial of en banc rehearing, Judge O’Scannlain wrote that there was “no evidence that Section O [blocking the benefits] was adopted with an intent to discriminate” and that “the cost-savings rationale offered by the State was sufficient to justify Section O.”
Arizona petitioned the Supreme Court for certiorari in an attempt to have the preliminary injunction overturned. The petition relies heavily on Judge O’Scannlain’s dissent:
Arizona channels these arguments [from O'Scannlain] in the petition it filed with the Supreme Court on July 2. “Given the court of appeals’ conclusion that Section O’s adverse impact on same-sex couples violated the Equal Protection Clause without any evidence of discriminatory intent,” the state belatedly argues, “the decision also threatens the validity of federal and state statutes that offer benefits only to employees’ spouses. This Court should therefore grant review to clarify that the court of appeals erroneously inferred that the Arizona Legislature was motivated by a discriminatory intent when it limited healthcare benefits to state employees’ spouses when there was no evidence to support that inference.”
The petition was filed on July 2. According to Chris Geidner: “The case, Brewer v. Diaz, is No. 12-23 on the Supreme Court docket.”
Tara Borelli, senior staff attorney with Lambda Legal, expressed confidence that the injunction against the anti-gay law would remain standing.
“We are confident that the lower courts’ decisions upholding domestic partner coverage for lesbian and gay employees will continue to carry the day,” Borelli said. “Arizona’s arguments have been turned down again and again by the federal courts, and we expect it will be no different here.”
Supporters of the injunction must provide a response by Aug. 6. The court will decide whether or not to take the case when it returns from summer recess.
During its October conference the court will take the issue up and if there are four votes for granting certiorari, they will review the case.