Wednesday, September 7, 2011

9th Circuit: Benefits Discrimination against Same Sex Couples Violates Equal Protection

120px-Flyingrainbowflag The Ninth Circuit affirmed the grant of a preliminary injunction yesterday against the State of Arizona, requiring it to continue to provide workers in same sex intimate relationships the employee benefits provided to employees in opposite sex intimate relationships. The decision, Diaz v. Brewer, blocks a state law that would have removed those benefits for same sex couples.

In 2008, Arizona had opened its employee benefits to allow the domestic partners of state employees to be considered dependents. Those partners could be of either sex. Six months later, the voters of the state approved a proposition, amending the state constitution to define marriage as between only a man and a woman. About a year later, the state passed a law redefining dependents as spouses (or children) only. A number of state employees who had received partner benefits for their same sex partners sued to enjoin the effect of the new law, and the district court granted a preliminary injunction. The Ninth Circuit affirmed.

The law was neutral as to sexual orientation on its face, but the bill was clearly directed at same sex couples. Moreover opposite sex couples could qualify for benefits by getting married and so avoid the effect of the law, while same sex couples could not. The Ninth Circuit applied rational basis to the statute, but applied it "with bite" since the law was directed at an unpopular group. Citing U.S. Dep't of Agriculture v. Moreno, a Supreme Court decision that struck down a restriction to food stamps aimed at "hippies" using the rational basis test, the Ninth Circuit found that the denial of benefits to same sex couples didn't promote any of the legitimate government interests proposed by the state: cost savings and administrative ease or promoting marriage. Any costs or administrative burdens on the state in administering its benefits were not caused by the sex of the employees' intimate partners. Likewise, by denying benefits to people whom the law prohibited from marrying, the state could hardly be promoting marriage.

The underlying right at stake is not to the benefits themselves, just to be clear. The state could get rid of its benefit plans entirely or refuse to extend benefits to any dependents (or adult dependents) of state employees, so the state has some options. It is just not allowed to distinguish on the basis of the sexual orientation or identity of the employee.

This case is part of a larger trend in this area in which courts seem to be to apply rather searching rational basis review to sexual orientation and identity issues, relying on Lawrence v, Texas and Romer v. Evans to look closely at laws enacted during a backlash against the LGBTQ movement. Look for more.


Employment Discrimination, Pension and Benefits, Public Employment Law | Permalink

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