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Arizona domestic partnership benefits case headed to the Supreme Court
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.
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33 Comments Leave a Comment
1.
Straight Ally #3008 | July 9, 2012 at 11:07 am
It's like the Supreme Court is finally going to say "yea" or "nay" on the question of whether gay people are first-class citizens.
2.
arjay1951@mac.com | July 9, 2012 at 11:25 am
Scottie,
I think you got an embed wrong. You apparently didn't mean to quote the cert petition as saying "ArizonA channels these arguments…"
3.
Scottie Thomaston | July 9, 2012 at 11:41 am
What do you mean? That's what it said.
4.
Alice Cyr | July 9, 2012 at 12:11 pm
So Arizona sounds like it would like to hire all gays and lesbians to avoid benefits. Isn't that just another discrimination, this time against heterosexual workers being passed over. Will the foolishness ever end?
5.
Bill S. | July 9, 2012 at 12:24 pm
The Supreme Court should overturn this ruling. The State of Arizona has a rational basis in wanting to restrict healthcare benefits to married couples rather than "domestic partners." A marriage signifies a much more serious relationship and one that has legal recognition with rights and responsibilities tied to that recognition. A "domestic partnership," at least in Arizona, is an unrecognized informal relationship between any two people who live together: they could be a committed same-sex couple or mere roommates.
I do not see this as a class-based distinction that pits gay people against straight people but rather a distinction drawn between married and non-married couples.
The fact that the State of Arizona does not allow same-sex couples to marry is not the law being challenged here.
6.
Eric | July 9, 2012 at 12:32 pm
It's not a ruling, it's an injunction.
7.
rocketeer500 | July 9, 2012 at 12:42 pm
Bill, there is a distinction. The non-married (opposite-sex) couples, if they wanted to maintain health benefits could get married. The non-married (same-sex) couples could not. Since the State's wanted to restrict health care to only "married" couples, and since same-sex marriage is not legal in Arizona, the State is trying to discriminate.
8.
Scott Wooledge | July 9, 2012 at 1:15 pm
Funny how people like Judge O’Scannlain who strongly believe it is right and correct to discriminate against gay people can never find any evidence of discrimination when a clearly discriminatory policy is passed.
9.
Steve | July 9, 2012 at 1:32 pm
That isn't the only anti-gay opinion written by O'Scannlain as far as I can recall. The guy is an outright nutjob and his screeds are almost painful to read.
10.
Scott Wooledge | July 9, 2012 at 1:50 pm
Legally, the theory to ties to the idea of rescinding benefits in a capricious manner. The state has decided it was right and correct to cover LGBT partners.
Now ostensibly to "cost save," the state decides the best way is to cut the benefits of only LGBT people.
So it isn't asking all the citizens fo the state to absorb the burden of cost saving equally. It is asking LGBT people to disproportionately bear the burden of saving the state money.
11.
Sagesse | July 9, 2012 at 3:08 pm
@
12.
bayareajohn | July 9, 2012 at 3:35 pm
Perhaps they should push to exempt LGTB folk from state taxes…
The state is quick to say they shouldn't spend money on us, then they shouldn't mind not taking ours. It would make the point pretty clear.
13.
Jeff Tabaco | July 9, 2012 at 4:24 pm
arjay, I see your confusion. Scottie is not quoting the petition directly, but rather quoting Arthur Leonard's blog post which quotes the petition.
14.
jpmassar | July 9, 2012 at 4:50 pm
And why does he keep showing up? After all, there are 28 circuit judges in the Ninth Circuit!
15.
jpmassar | July 9, 2012 at 4:52 pm
When did the district court hand down its decision? When is the case scheduled to be heard on appeal in the Ninth Circuit? (Or does the issue of the injunction have to be settled before anything else happens? If not, have their been any appellate briefs?)
16.
Jeff | July 9, 2012 at 5:07 pm
If Arizona really wants to save money then they should deny spousal and child benefits to married state workers. By specifically denying benefits to domestic partners (to whom the option of marriage does not exist) Arizona is clearly discriminating. To say otherwise defies logic.
17.
Rich | July 9, 2012 at 5:51 pm
On another matter…let this be a shout-out to the 3 or 4 bloggers who are allowed to post opposition points on the NOM site. I am absolutely in awe of their cogent and insightful rebuttals to the ever tiresome religiosity that is proffered as NOM's argument in opposition to equality. The NOM posts, themselves, are, too often meaningless and circumspect. But, the die-hard "heretics" just won't quit. When the stalwarts of hate resort to: " leave us alone, go to your own web-site"', I clap and think, yes, they're feeling the heat. It makes my day. I would congratulate them myself but NOM severed all ties with me eons ago.
18.
Scott Wooledge | July 9, 2012 at 6:50 pm
He's a bad penny?
19.
Bill S. | July 9, 2012 at 9:31 pm
But they are not cutting benefits only from LGBT people: They're cutting benefits from all domestic partners, gay or straight.
Yes, straight couples can get married if they wish and gay couples cannot, but the proper avenue to correct this is for gay couples to challenge the law banning same-sex marriage, not the law stripping all domestic partners of health benefits.
I am firmly with Arizona on this one. I think that the taxpayers should only pay for state employees' benefits and their spouses. Not their "domestic partner" which could be anything in Arizona (it's not a registered separate-but-equal relationship like in California). Arizona should be required to recognize same-sex marriages under the 14th Amendment, but this is not what is being challenged here.
This law differentiates between married couples and domestic partners, not between gay couples and straight ones.
20.
Jamie | July 9, 2012 at 10:49 pm
They can't block your IP address when you post with a cell-phone.
21.
Larry | July 10, 2012 at 5:19 am
This is a harder case to decide because you're not exactly wrong. The problem is, if you look at the statistics, same sex domestic partnerships are vastly overrepresented in the total number of Arizona domestic partnerships. That's why the judges decided that even though the law nominally doesn't single out same-sex couples, it does effect them much more strongly since they have no recourse. (Also, the fact that no opposite-sex domestic partners have sued suggests that they either don't mind losing their benefits, or simply got married to retain their benefits).
But yes, I could see an unsympathetic court reversing the decision on the grounds that the law nominally doesn't cut benefits from any single group.
Also, isn't this the same argument used to defend/challenge adoption laws? That some states say only married couples can adopt children, and since only opposite-sex couples can get married, same-sex couples could never adopt. In that situation, I think it's appropriate to challenge both the marriage and adoption laws.
22.
_BK_ | July 10, 2012 at 6:54 am
I have mostly given up attempting to try logic with the NOMbies. Now I usually just post taunts and the like under the name, "Bryce K."
23.
Bill S. | July 10, 2012 at 8:38 am
I also believe that only married couples should be allowed to jointly adopt children (obviously with the proviso that same-sex couples be allowed to marry.)
The state does have a rational basis in wanting to restrict certain benefits only to those couples who have been a legally binding serious commitment to each other.
24.
Mike in Baltimore | July 10, 2012 at 11:03 am
When looking at the effect of a law, the examination is not on the stated intent of the law, but on the effect it has on the different groups.
For heterosexuals, there is no real effect, as they have the option of getting married if one partner does not have insurance. For homosexuals, they cannot get married, as the state of Airy-Zona will not allow it.
Overtly, the law might not discriminate. In reality, the law DOES discriminate.
25.
Bill S. | July 10, 2012 at 12:23 pm
The law that discriminates is the law that prohibits same-sex couples from getting married.
Overturning the law rescinding domestic partner benefits is being overly meddlesome in the affairs of the State of Arizona. The State of Arizona should be allowed to restrict state employee benefits only to those who are in a marriage: i.e. the most formal, serious committed legal relationship one can enter into in this country.
26.
Bill S. | July 10, 2012 at 12:23 pm
EDIT: The way I worded that was confusing. Obviously unmarried state employees should get benefits for themselves. But their partners (whom they aren't married to) shouldn't be able to latch onto their policy at the taxpayers' expense.
27.
Mike in Baltimore | July 10, 2012 at 2:43 pm
If Airy-Zona was worried about expenditures of taxpayers monies, it would cut the benefits to those who get married. After all, that is where the REAL expense is. And since same gender marriage is not allowed in Airy-Zona, and heterosexuals CAN get married, Airy-Zona's law is, in effect, extremely discriminatory against an identifiable group of people, namely homosexual people.
28.
Bill S. | July 10, 2012 at 6:09 pm
Again, the law that discriminates is the one that disallows gay people from getting married.
There is a greater need for married couples to share benefits than roommates or people shacking up together. I understand that a lot of these "domestic partners" are gay couples who would get married if they could, but again (and I don't know how many different ways to explain this), Arizona does have a rational basis in passing *this* particular law.
29.
Matt N | July 10, 2012 at 6:21 pm
It's a little different, though. Arizona previously gave benefits to Domestic Partners and has now tried to take them away.
Domestic partnership is "the most formal, serious, committed legal relationship" that gay people can enter into in Arizona. So, removing benefits from this class of relationship rings of "a tax on wearing yarmulkes is a tax on Jews".
30.
Bill S. | July 10, 2012 at 8:54 pm
Merely taking away a right previously granted is not inherently unconstitutional if the state has a rational basis for doing so.
Domestic partnerships are not on par with a marriage in Arizona.
The law removes benefits from straight and gay domestic partners, and the decision of the 9th Circuit just assumes that every straight domestic partner will get married to preserve those benefits. The problem is not with this law (which I fully support) but with the law prohibiting same-sex couples from being allowed to marry.
O'Scannlain's dissent (up to Part III, of course he had to ruin a perfectly sane dissent with an anti-gay tirade) provides an excellent explanation.
31.
Matt N | July 10, 2012 at 10:17 pm
I would argue that there is no rational basis to take away domestic partner benefits from *gay* couples, since they have no option to marry. Whereas, taking away the same benefits from straight couples is constitutional, since they do have the ability to marry.
Sure, SCOTUS could say denying marriage to gay couples is unconstitutional, but in my opinion, they could easily take the approach I am proposing and it would be a narrower opinion.
I do see your point and would love to see marriage bans struck down, but we disagree on what, in practice, SCOTUS would rule.
32.
Mike in Baltimore | July 11, 2012 at 2:15 pm
This is a case of the law, on the surface, seeming to be fair. However, if you scratch down a bit, you can find where it is extremely discriminatory against a specific grouping of people.
33. Prop 8 Trial Tracker &raq&hellip | August 21, 2012 at 10:08 am
[...] month, Arizona Governor Jan Brewer filed a petition for certiorari to the Supreme Court in Diaz v. Brewer, a case involving a law that eliminates the state’s [...]
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