A Step in the Right Direction: Ninth Circuit Holds Arizona Law That Eliminates Same-Sex Couples Benefits is Unconstitutional

By: Stephen Warshavsky


On September 6th, the Ninth Circuit Court of Appeals held in Diaz v. Brewer that an Arizona law that limited benefits for same-sex domestic partners violates the Equal Protection Clause.[i] Judge Schroeder in her opinion stated, “when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular.”[ii] The law, passed in 2009, eliminated health-insurance coverage for same-sex partners of public employees.[iii]

Arizona originally offered these benefits to spouses of state employees, but in April 2008 expanded coverage to include both same-sex and different-sex domestic partners.[iv] However, in November 2008, voters approved a proposition that amended the Arizona Constitution, defining “marriage” as the union of “one man” and “one woman”, making same-sex marriage effectively unrecognizable in the state.[v] Furthermore, in September 2009, Arizona governor Jan Brewer signed into law a bill that restricted benefits only to spouses, which by state definition would only apply to different-sex domestic partners.[vi] This was done by redefining “dependents” as “spouses.”[vii] Many state employees who had received partner benefits for their same-sex partners sued to enjoin the effect of the new law, and filed for a preliminary injunction, which was granted by the district court.[viii] The law did not specifically address sexual orientation, but the bill can be viewed as being geared toward same-sex couples.[ix] Thus, while the bill was not discriminatory on its face, it had a discriminatory effect because different-sex couples could retain their health coverage by getting married, which was not the case for same-sex couples.[x] Ultimately, the Court of Appeals held that the district court properly granted the plaintiffs’ request for a preliminary injunction on equal protection grounds.[xi]


This ruling has not been without criticism. Matthew Benson, a spokesman for Governor Brewer, told The Arizona Republic that the ruling “is pretty much standard fare for the 9th Circuit” and that it “flies in the face of both logic and law.”[xii] Additionally, Benson emphasized that the state eliminated benefits “across the board” for domestic partners.[xiii] Furthermore, Benson went on to say “The federal court has created this inequality by preventing the termination of same-sex benefits but allowing the elimination of benefits of straight couples;” “When you read the ruling, the court’s real motivation seems to be for the legalization of gay marriage.”[xiv]


Carrying similar sentiments was Ed Whelan, President of the Ethics and Public Policy Center, who described the judging panel as “very liberal” and the opinion itself as “very poorly reasoned”.[xv] Whelan was puzzled by the fact that the Ninth Circuit panel accepted the district court’s disparate-impact analysis, despite the fact that with regard to race, equal-protection violation requires showing discriminatory intent against persons of a race.[xvi] Whelan believes that the law at issue had a discriminatory effect, but nowhere can it be shown that the intent was discriminatory.[xvii]


Criticisms aside, this ruling has the ability to be very influential according to Eugene Volokh, Professor at UCLA School of Law and Founder of the Volokh Conspiracy.[xviii] Quoting Professor Volokh, “I thus except 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.”[xix] Currently, the Governor’s office is “studying the ruling” to determine the state’s next steps, whether it be an en banc review before the Ninth Circuit or whether it will appeal to the U.S. Supreme Court.[xx]

Ultimately, this decision is a step in the right direction for same-sex couples and it shows that there could be a seminal shift in the courts with regard to the future of Proposition 8. People in same-sex relationships put in the same amount of work at their respective jobs as different-sex couples. Thus, they should be able to benefit from enrolling their partner in their healthcare policy. At the end of the day, it comes down to equality. In closing, it will be interesting to see whether Governor Brewer will try to appeal to the Supreme Court, and if so whether the Supreme Court will use its discretion to hear the case on this “hot” topic. Only time will tell.

[i] Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011).

[ii] Id. at 1013.

[iii] See id.

[iv] See id.

[v] Id. at 1010.

[vi] Id.

[vii] Id.

[viii] See id.

[ix] Marcia L. McCormick, 9th Circuit: Benefits Discrimination against Same Sex Couples Violates Equal Protection, Workplace Prof Blog (Sept. 7th, 2011), http://lawprofessors.typepad.com/laborprof_blog/2011/09/9th-circuit-benefits-discrimination-against-same-sex-couples-violates-equal-protection.html.

[x] Diaz, 656 F.3d at 1012.

[xi] Id. at 1015.

[xii] Nathan Koppel, 9th Circuit Blocks Arizona Law Limiting Same-Sex Partner Benefits, Wall St. J. Law Blog (Sept. 7, 2011, 10:36 AM), http://blogs.wsj.com/law/2011/09/07/9th-circuit-blocks-arizona-law-limiting-same-sex-partner-benefits/.

[xiii] Id.

[xiv] Id.

[xv] Ed Whelan, Another Day, Another Daffy Ninth Circuit Ruling, Posting to Bench Memos, National Review Online (Sept. 7, 2011, 2:58 PM), http://www.nationalreview.com/bench-memos/276510/another-day-another-daffy-ninth-circuit-ruling-ed-whelan.

[xvi] Id.

[xvii] Id. 

[xviii] See Eugene Volokh, Ninth Circuit Decision Suggesting That Opposite-Sex-Only Marriage Rules are Unconstitutional?, Volokh Conspiracy (Sept. 7, 2011, 2:31 PM), http://volokh.com/2011/09/07/ninth-circuit-decision-suggesting-that-opposite-sex-only-marriage-rules-are-unconstitutional/.

[xix] Id.

[xx] Id.


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