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Another Day, Another Daffy Ninth Circuit Ruling



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May a state that chooses to offer health-care benefits to domestic partners of state employees decide later to discontinue those benefits? The answer provided yesterday by a very liberal Ninth Circuit panel in a very poorly reasoned opinion (in the case of Diaz v. Brewer) is no.

A bit more background (drawn from the opinion): In April 2008, Arizona began offering state employees health-care benefits for their opposite-sex or same-sex domestic partners. In September 2009, the governor of Arizona signed into law a bill that eliminated future health-care benefits for domestic partners, whether opposite-sex or same-sex. A group of gay and lesbian employees sued, claiming that the law violated their constitutional rights.

A federal district judge granted a preliminary injunction against the law on equal-protection grounds: While the law did not discriminate against same-sex couples on its face, it had a discriminatory effect (he held), since affected opposite-sex couples could retain their health-care coverage by marrying but same-sex couples couldn’t marry under Arizona law. The judge ruled that the law failed to satisfy even rational-basis review (the lowest level of scrutiny).

As I read it, the Ninth Circuit panel opinion essentially adopts the district court’s analysis. I find the opinion puzzling in two major respects:

1. In the core context of race, proving an equal-protection violation generally requires showing discriminatory intent against persons of a race, and not merely differential, or disparate, impact on persons of that race. Yet here the Ninth Circuit panel embraces the district court’s disparate-impact analysis: The law at issue applied equally to state employees with opposite-sex or same-sex partners, but the fact that opposite-sex couples could escape its operation by marrying meant that it had a discriminatory effect on same-sex couples.

Note that the Ninth Circuit panel doesn’t state that it is inferring a discriminatory intent from the discriminatory effect (nor does it even bother to try to quantify the amount of the differential effect).

2. The Ninth Circuit purports to apply highly deferential rational-basis review in concluding that the law is unconstitutional. (The panel’s ruling, I’ll note again, comes in the context of reviewing the grant of a preliminary injunction, but its analysis clearly involves a bottom-line judgment that the law is unconstitutional.) But the cost savings from limiting health-care benefits plainly satisfy rational-basis review.

I can’t make sense of the panel’s assertion that “the savings depend upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review.” The savings don’t depend upon any such distinction, as there will be savings from discontinuing the benefits for both same-sex and opposite-sex partners (unless the panel is implicitly making the absurd assumption that all opposite-sex couples immediately marry in order to preserve their benefits).

Update: I now see that Eugene Volokh, in a post published just before mine, addresses this same case and briefly sketches its possible implications for the anti-Prop 8 appeal in the Ninth Circuit. He concludes:

I thus expect that the Diaz decision to play an important role in any future Ninth Circuit decision on Proposition 8, at least unless either Diaz or the Proposition 8 case goes en banc, or the U.S. Supreme Court agrees to hear the Diaz case, which is unlikely but possible.



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