Diaz v. Brewer

Bоard; manner; Kathy tion and Personnel issues in a different resolve the Peckardt, capacity in her official adequate are to de- questions further.” Director of Human Resources for the encouragement proceed serve Stewart, Department of 220 F.3d Arizona Administra- Lambright v. Cir.2000) (internal (9th Board, quotation marks tion and Personnel Defen- dants-Appеllants. Petitioner need and brackets appeal pre- will that his not demonstrate No. 10-16797. (“[T]he showing n. 4 vail. See id. at 1025 ap- heard on must make to be petitioner of Appeals, United States Court relief.”); less than that to obtain peal is Ninth Circuit. (9th 816, 826 Belleque, v.

Wilson Cir.2009) (“[T]he Supreme Court has made obtaining the standard for clear Barr, LLP, Clayton Daniel Perkins Coie one.”). exacting particularly not a COA is Phoenix, AZ, Borelli, Tara L. Lambda Le- Fund, Inc., gal Defense and Education Los we have concluded that Peti- Because CA, Angeles, Plaintiffs-Appellees. for innocent, actually his plainly tioner no issues that are petition presents Grube, Arnold Charles Assistant Attor- jurists of reason” or among “debatable General, ney Attorney of the Office Gener- encouragement “adequate deserve al, Sweeney, Esquire, Kathleen Patricia therefore decline to proceed further.” We General, Attorney Assistant Paula Bick- S. issue a COA. ett, Counsel, Arizona Esquire, Chief Attor- Office, Phoenix, AZ, ney General’s for De- DENIED. Appealability

Certificate fendants-Appellants. Appeal DISMISSED. M.

Before: MARY SCHROEDER and THOMAS, Judges, SIDNEY R. Circuit BENNETT,* and MARK W. District Judge. DIAZ; McDaniel; Josеph R. Judith Beverly Secking- Humphrey;

Keith B. Order; by Judge Dissent er; Stephen Russell; Pfleger; Deanna O’SCANNLAIN. Corey Sperling; Kemp; Carrie Leslie Seemiller, Plaintiffs-Appellees, ORDER deny has voted to defendants- BREWER, appellants’ petition panel rehearing. in her official ca- Janice ‍‌‌​​‌​‌​​​‌​​​‌​‌‌​​‌​‌‌​‌​​‌‌‌‌‌‌‌​​​‌‌‌‌‌​​‌‌​‍K. deny peti- voted to pacity Judge Thomas has as Governor State Raber, banc, Arizona; rehearing Judges en David his official tion for capacity Director of the and Bennett have so recom- as Interim Schroeder Department of Administra- mended. Arizona

* Iowa, Bennett, designation. sitting by W. ern The Honorable Mark Judge District for the District of North- States I court was advised of defen-

The full rehearing en petition for dants-appellants’ 2008, the of Arizona limited Until State rеquested A a vote on wheth- judge banc. state-employee dependent-partner health matter en banc. The er to rehear dependent spouses. In benefits majority a of the matter failed receive year, Arizona’s administrative code in judges active of the nonrecused votes was amended to extend such benefits to Fed. favor of en banc consideration. qualified partners, domestic whether of the P. 35. R.App. employ- opposite same or sex as the state see Ariz. Admin. 1010; at ee. 656 F.3d for Defendants-appellants’ petition (for R2-5-101(22) 2008) (Apr. Code rehearing for en rehearing petition granting to state em- purposes benefits are denied. banc who, partner” a one ployees, “domestic requirements, had shared a among other O’SCANNLAIN, Judge, joined Circuit at employee residence with the state for BEA, by Judge, dissenting from Circuit apply- least consecutive months before denying rehearing en banc: the order benefits, financially ing for was interde- pendent employee, with the and was not three-judge panel In a of our this case married or another domestic limiting court that a state law state- holds relationship). employee dependent-partner health bene- made, Soon after this amendment was spouses—and denying fits to thus such began to deal with a severe State dependent partners— benefits to domestic budget projected crisis. The hаd a State could not survive rational basis review. million deficit June 2008 and a $400 Although adversely most of those affected reported by early billion deficit $1.6 by opposite-sex couples, would law be part As of a reconciliation bill ad- concluded that the law irrational- crisis, in dressing legis- 2009 the state ly against gays discriminated and lesbians. O, lature enacted Section which limits on disparate rests state-employee dependent-partner health impact theory Court has employees’ spouses. benefits to squarely rejected and a misapprehen- on 38-651(0). 1010; see Ariz.Rev.Stat. sion of review. The also Section O would have halted such benefits expressly opposite-sex- all but held that dependent partners, whether only marriage rules are unconstitutional— opposite same sex indeed, that such are irrational per rules employee. state se because can rest on a “bare plaintiffs gay are several and lesbi- politically unpopular desire to harm a an employees state with committed domes- (9th Cir.2011) 1008,1015 group.” 656 F.3d partners. They tic filed suit November (internal quotation ellipses marks and seeking a declaration that Section O equal protection pro- violates the and due a dramatic expansion Such of circuit cess clauses of the Fourteenth Amendment law—particularly permanently enjoining one beset critical le- and an оrder gal July errors—should not taken In being have been tion O from enforced. larger preliminarily enjoined without considered reflection court district respectfully likely equal cohort of our court. dissent violation of the Section O as regrettable protection F.Supp.2d from the failure of our court to clause. (D.Ariz.2010). rehear this case en banc. Davis, in- ton v. preliminary affirmed the see, (1976); e.g., City on its face Although Section

junction. Buckeye Cmty. Hope Cuyahoga Falls opposite-sex in both employees applies to 1389, Found., 188, 194, 123 S.Ct. 538 U.S. relation- same-sex and (2003) (“We have made L.Ed.2d 349 provision drew that the ships, it concluded racially discriminatory proof that of clear oppo- becаuse classification irrational an required to show a purpose is intent O’s escape could Section partners site-sex ‍‌‌​​‌​‌​​​‌​​​‌​‌‌​​‌​‌‌​‌​​‌‌‌‌‌‌‌​​​‌‌‌‌‌​​‌‌​‍Clause.”) Equal Protection violation cou- whereas same-sex by marrying, effect (brackets quotation and internal the may not do so because in Arizona ples omitted); Heights v. Arlington Vill. unions limits constitution state 252, Corp., 429 U.S. Metro. Hоus. Dev. man and one woman. See one between (1977) 50 L.Ed.2d 450 97 S.Ct. rejected the The at 1014. (same). justified argument that Section 0 State’s to cut costs pressing need

by the State’s this fundamental panel side-stepped The budget crisis. It a historic the face of no that proposition. It cited evidence depend upon savings that “the reasoned adopted with an intent to dis- tion O was and between homosexual distinguishing instead embraced criminate. situated, similarly employees, heterosexual court’s rationale that the law the district ra- cannot survive and such a distinction protection because of its equal violated reject- Id. The basis review.” impact. But as the supposed disparate for Section justifications all other ed clear, showing make a just cases cited such that “arbitrary” law condemning it as an invalidate O on could not alone Section group[] “adversely particular affects [a] protection grounds even under the equal at 1013. may unpopular.” Id. that be scrutiny. judicial level of highest law, that settled the apply Rather thаn II that De- panel concluded United States suggest panel’s respect, With Moreno, Agriculture v. partment of from two protection analysis suffers equal 93 S.Ct. significant errors. (1973), result because required a different view) (in “adversely Section O A may that be particular group[ ] affects [a] disregarded requirement 656 F.3d at 1013. Moreno unpopular.” alleging equal protection an plaintiff that a down as irrational an amendment struck that state action “had violation must show ineligi- Stamp Act that rendered the Food that it was discriminatory effect and a any containing ble for assistance household by discriminatory purpose.” motivated a unrelated to other member person States, 598, 608, Wayte v. 470 U.S. legislative Taking thе household. stock (em- (1985) 1524, 84 L.Ed.2d 547 105 S.Ct. that amendment history “indicat[ing] th[e] added). phasis ‘hippies’ so-called prevent was intended to ‘hippie participating communes’ from fifty years Supreme nearly For stamp program,” food the Court cases “have has made clear that its Court that the amendment was moti- a law or concluded proposition thаt not embraced desire to by congressional “a act, to wheth- vated ‍‌‌​​‌​‌​​​‌​​​‌​‌‌​​‌​‌‌​‌​​‌‌‌‌‌‌‌​​​‌‌‌‌‌​​‌‌​‍bare regard official without other unpopular group,” which politically harm a discriminatory purpose, a ... er it reflects legitimate governmen- it has a “cannot constitute solely because is unconstitutional interest.” 413 U.S. Washing- tal disproportionate impact.” ... added; (emphasis emphasis other B did not rest on the Moreno also erred in effect; rather, applied it

law’s adverse Section O cannot withstand rational basis equal protection principles set forth above applying review. Even cases robust to strike down a law motivated a dis- review, form of criminatory purpose. legislative hаs made clear that a Court upheld long classification must be “so as it no There is such evidence Section legitimate bears a rational relation to some was motivated animus. Section O’s Evans, 620, 631, end.” Romer v. history context and bear out that it rests (1996). entirely budgetary on considerations. challenging Those ra- classification on 2008, Arizona state-employee Until limited grounds basis “have the burden to dependent-partner coverage health benefit negat[e] every conceivable basis which spouses. briefly to In 2008 it relaxed might support it.” v. Beach FCC very year, limitation. The in next Commc’ns, Inc., 307, 315, crisis, budget the face of (1993) (inter- its Arizona de- 2096, 124 S.Ct. L.Ed.2d previous policy. cided to return to its quotation nal animus, That does not decision show actu- Here, cost-savings rationale offered al implied. sup- Nor does Section O’s by the justify State was sufficient to posed on disparate impact gays and lesbi- In tion O. 2008 and Arizona faced a Indeed, ans. likely Section 0 most would severe crisis. The State therefore many burden opposite-sex more than that, enaсted a budget reconciliation bill couples many same-sex op- because more among measures, other cost-reduction posite-sex partners tightened would state-employee dependent-part- stand to lose their ner benefits. Section O would F.Supp.2d gener- benefits. See 727 at have significant ated savings. cost In the 2008- disproрor- To conclude that the law will plan year, partner domestic health- tionately couples affect same-sex would care claims cost the State more than $4.07 require one to assume that the vast ma- million; when the granted district court jority opposite-sex of affected domestic preliminary injunction, those claims partnеrs marry just would preserve to already had cost the State more than $5.49 their Though benefits. seemed million in plan year. the 2009-2010 to assumption, credit that see 656 F.3d at F.Supp.2d at 812. legislature the Arizona was entitled The nonetheless held that Section (particularly review, under see rationally O is not saving related to cost II—B) Part presume to that Section infrа because, view, “the savings spur O would not a mass rush into matri- depend upon distinguishing between homo- mony. sexual and employees, heterosexual simi- plaintiffs simply here have not situated, larly and such a distinction can- burden, shown—as was their Wayte, see not survive rational basis review.” 656 105 S.Ct. 1524—that Sec- clearly F.3d at 1014. But wrong that is as tion O was a discriminatory motivated a mаtter of fact: The cost savings depend They intent. likely have not even shown a contrary, on no such distinction. To the disparate effect that would harm them. savings mostly will come from discon- therefore in finding erred tinuing opposite-sex benefits to likely equal protection violation. partners because small fraction” “[a] son, 310, 191 N.W.2d 185- bene- 291 Minn. partnеr receiving domestic those (1971). alone, past many In the decade partnership. are in a same-sex fits their constitutions to states have amended at 800. F.Supp.2d fortify pro and to respect affirm that faithfully represented Had the *Ill,notwith marriage1 tections of traditional not have it could operates, how Section to standing that some stаtes have voted already irrational. As it as condemned marriage to same-sex extend the status to was entitled legislature explained, couples.2 employees opposite- that most believe their would Arizona voters made clear desire relationships sex domestic institution this fundamental marry, and thus it was enti- sprint when, amended lion’s share of the November tled to believe to define ending coverage their constitution come from savings would man one woman. was between one See couples. opposite-sex Const, XXX, § 1. O ac- and to Ariz. art. Section to credit that determination obliged recognize legally cords with their choice the law. uphold only marriage. traditional Ill By any that lacks concluding Section O basis, condemned the rational the done to established Beyond damage considered views of Arizona’s voters and law, de- Amendment Fourteenth promote wish to traditional all others who constitution- threatens to dismantle cision through the law. Without marriage al, provisions statutory, and administrative evidence, berated supporting promote that to tradi- in those states wish that choice as animated “a bare desire concluded—in marriage. tional unpopular group.” to harm a politically but unmistakable— way that is veiled (internal quotation at 1015 656 F.3d only traditional mar- benefiting that rules omitted). That combustive ellipses and pur- rational no concеivable riage serve challenges to other spur conclusion will broadsides Arizona pose. That conclusion statutory provi- and (and state constitutional voters, the ef- their efforts smothers recog- even circuit) protect—indeed, that sions voters in this to forts of other marriage. No such laws nize—traditional clashes marriage, and traditionаl in the Ninth Circuit: are now safe of other courts. with decisions declaration, all, by panel’s judicial are government states and the federal Both bigotry. begotten from law, embody, in the long sought to have conclusion—that panel’s tradi- bottom-line deep-rooted respect for our Nation’s See, benefitting only marriage traditional rules marriagе. e.g., 28 U.S.C. States, purpose— rational 1738C; serve no conceivable Reynolds § v. United 98 168, (1878); prece- Court 145, 164-66, 244 also clashes with 25 L.Ed. law, Howerton, 1036, dent, case and with with our own 1039- Adams v. (9th Cir.1982); appel- and state 40, Nel- decisions of other federal Baker v. 1042-43 Const, Const, XV, II, (2004); I, See, (2008); § 5a § Or. ‍‌‌​​‌​‌​​​‌​​​‌​‌‌​​‌​‌‌​‌​​‌‌‌‌‌‌‌​​​‌‌‌‌‌​​‌‌​‍art. § 27 Ga. art. 35 e.g., art. 1. Fla. Const, Const, Const, 4, I, ¶ I, (2004); (2005); (2004); § art. § I Idaho 32 Wis. art. Tex. art. Const, Const, XV, Ill, (2006); § XIII, (2006). 16 § Kan. art. § 28 art. 13 (2004); (2005); Ky. § Mich. Const. 233A Const, Const, I, I, (2004); § art. аrt. 25 Mo. (H.B.438); See, e.g., Ch. 2 2012 Md. Laws Const, I, (2002); (2004); § § Nev. art. (2009). § tit. Vt. Stat. Ann. Const, XI, (2004); Const. art. Okla. N.D. law, recognizing late courts laws tutional such efforts as motivated unbridled, marriage do promoting traditional irrational hatred. It under- See, e.g., violate the federal Constitution. legislature mines the decision of Arizona’s Nelson, Baker v. rationally historic respond (1972) (dismissing for want Although crisis. decision was question thе appeal of a substantial federal reached in the context interlocutory of an Nelson, from Baker v. 291 Minn. 191 appeal of preliminary injunction, cor- its (1971)); Adams, 673 F.2d at N.W.2d 185 logic further, rosive reaches all but pro- 1042-43; Equal Citizens Protection v. claiming limiting benefits to mar- (8th Cir.2006); Pruning, 455 F.3d couples ried is unconstitutional. Hallaban, Jones S.W.2d If our court were going to break so Baker, (Ky.App.1973); N.W.2d 185- dramatically from long-standing practice showing respect 87. Rather than similar and tradition—and divide ourselves from choices, for voters’ this case weight of authority on a matter that is stripped right our circuit’s citizens of the important—we so should have done so embody long-accepted, long-her- their only after reconsidering this matter en alded, long-cherished beliefs about banc. their laws. respectfully dissent. ways This case is in some even more breathtaking than our recent decision in (9th Brown,

Perry v. 671 F.3d 1052 Cir.

2012). Perry struck down an amendment

to California’s constitution that restricted marriage to unions a man between and a NORDYKE; Russell Allen Ann Sallie Perry majority woman. But the said that Nordyke, Shows; dba Trade TS Jess B. it “addressing] was no ... question” re Guy; Darr; Jоnes; Duane William J. garding constitutionality “the ban Daryl David; Westyschyn; N. Tasiana on same-sex marriage,” and was instead Lee; Baltes; Blair, Jean Todd Dennis examining “whether people of a state Adams; Roger Baker; R.L. Mike may by plebiscite strip group right of a Fournier; Virgil McVicker, Plain benefit, otherwise, constitutional or tiffs-Appellants, previously enjoyed hаd on terms of equality with all others in the state.” Id. By holding 1082 n. 14. oppo here that Mary KING; Steele; V. Gail Wilma site-sex-only marriage rules serve no ra Chan; Carson; Haggerty; Keith Scott

tional purpose, decided an issue County Alameda; County that bears directly—perhaps dispositive Supervisors, Alameda Board of Defen ly—on the question expressly broad left dants-Appellees. open in Perry.

No. 07-15763. IV Appeals, States Court of panel opinion long- conflicts with Ninth Circuit. principles settled of equal protection law. It hobbles the efforts of States and their Kilmer, Jr.,

citizens to traditional marriage Donald The Law Offices of condemning, ‍‌‌​​‌​‌​​​‌​​​‌​‌‌​​‌​‌‌​‌​​‌‌‌‌‌‌‌​​​‌‌‌‌‌​​‌‌​‍Kilmer, Jose, CA, Kates, as a matter of federal consti- Donald San Don

Case Details

Case Name: Diaz v. Brewer

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 3, 2012

Citation: 676 F.3d 823

Docket Number: 10-16797

Court Abbreviation: 9th Cir.