FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH R. DIAZ; JUDITH MCDANIEL;
KEITH B. HUMPHREY; BEVERLY
SECKINGER; STEPHEN RUSSELL;
DEANNA PFLEGER; CARRIE SPERLING;
LESLIE KEMP; COREY SEEMILLER,
Plaintiffs-Appellees,
v.
No. 10-16797
JANICE K. BREWER, in her official
capacity as Governor of the State D.C. No.
of Arizona; DAVID RABER, in his 2:09-cv-02402-JWS
District of Arizona,
official capacity as Interim
Director of the Arizona Phoenix
Department of Administration and ORDER
Personnel Board; KATHY
PECKARDT, in her official capacity
as Director of Human Resources
for the Arizona Department of
Administration and Personnel
Board,
Defendants-Appellants.
Filed April 3, 2012
Before: Mary M. Schroeder and Sidney R. Thomas,
Circuit Judges, and Mark W. Bennett,* District Judge.
Order;
Dissent by Judge O’Scannlain
*The Honorable Mark W. Bennett, United States District Judge for the
District of Northern Iowa, sitting by designation.
3585
3586 DIAZ v. BREWER
ORDER
The panel has voted to deny defendants-appellants’ petition
for panel rehearing. Judge Thomas has voted to deny the peti-
tion for rehearing en banc, and Judges Schroeder and Bennett
have so recommended.
The full court was advised of defendants-appellants’ peti-
tion for rehearing en banc. A judge requested a vote on
whether to rehear the matter en banc. The matter failed to
receive a majority of the votes of the nonrecused active judges
in favor of en banc consideration. Fed. R. App. P. 35.
Defendants-appellants’ petition for panel rehearing and
petition for rehearing en banc are denied.
O’SCANNLAIN, Circuit Judge, joined by BEA, Circuit
Judge, dissenting from the order denying rehearing en banc:
In this case a three-judge panel of our court holds that a
state law limiting state-employee dependent-partner health
benefits to spouses—and thus denying such benefits to depen-
dent domestic partners—could not survive rational basis
review. Although most of those affected adversely by the law
would be opposite-sex couples, the panel concluded that the
law irrationally discriminated against gays and lesbians.
The panel’s holding rests on a disparate impact theory that
the Supreme Court has squarely rejected and on a misappre-
hension of rationality review. The panel also all but expressly
held that opposite-sex-only marriage rules are
unconstitutional—indeed, that such rules are irrational per se
because they can rest only on a “bare desire to harm a politi-
cally unpopular group.” 656 F.3d 1008, 1015 (internal quota-
tion marks and ellipses omitted).
DIAZ v. BREWER 3587
Such a dramatic expansion of circuit law—particularly one
beset by critical legal errors—should not have been taken
without considered reflection by a larger cohort of our court.
I respectfully dissent from the regrettable failure of our court
to rehear this case en banc.
I
Until 2008, the State of Arizona limited state-employee
dependent-partner health benefits to dependent spouses. In
April of that year, Arizona’s administrative code was
amended to extend such benefits to qualified domestic part-
ners, whether of the same or opposite sex as the state
employee. 656 F.3d at 1010; see Ariz. Admin. Code R2-5-
101(22) (Apr. 25, 2008) (for purposes of granting benefits to
state employees, a “domestic partner” is one who, among
other requirements, had shared a residence with the state
employee for at least 12 consecutive months before applying
for benefits, was financially interdependent with the
employee, and was not married or in another domestic-partner
relationship).
Soon after this amendment was made, the State began to
deal with a severe budget crisis. The State had a projected
$400 million deficit in June 2008 and a reported $1.6 billion
deficit by early 2009. As part of a budget reconciliation bill
addressing that crisis, in 2009 the state legislature enacted
Section O, which limits state-employee dependent-partner
health benefits to employees’ spouses. 656 F.3d at 1010; see
Ariz. Rev. Stat. § 38-651(O). Section O would have halted
such benefits for dependent domestic partners, whether of the
opposite or the same sex as the state employee.
The plaintiffs are several gay and lesbian state employees
with committed domestic partners. They filed suit in Novem-
ber 2009 seeking a declaration that Section O violates the
equal protection and due process clauses of the Fourteenth
Amendment and an order permanently enjoining Section O
3588 DIAZ v. BREWER
from being enforced. In July 2010 the district court prelimi-
narily enjoined Section O as a likely violation of the equal
protection clause. 727 F. Supp. 2d 797 (D. Ariz. 2010).
The panel affirmed the preliminary injunction. Although
Section O on its face applies to employees in both opposite-
sex and same-sex domestic partner relationships, it concluded
that the provision drew an irrational classification because
opposite-sex partners could escape Section O’s effect by mar-
rying, whereas same-sex couples in Arizona may not do so
because the state constitution limits marriage to unions
between one man and one woman. See 656 F.3d at 1014. The
panel rejected the State’s argument that Section O is justified
by the State’s pressing need to cut costs in the face of a his-
toric budget crisis. It reasoned that “the savings depend upon
distinguishing between homosexual and heterosexual employ-
ees, similarly situated, and such a distinction cannot survive
rational basis review.” Id. The panel rejected all other justifi-
cations for Section O, condemning it as an “arbitrary” law
that “adversely affects [a] particular group[ ] that may be
unpopular.” Id. at 1013.
II
With respect, I suggest that the panel’s equal protection
analysis suffers from two significant errors.
A
The panel disregarded the requirement that a plaintiff alleg-
ing an equal protection violation must show that state action
“had a discriminatory effect and that it was motivated by a
discriminatory purpose.” Wayte v. United States, 470 U.S.
598, 608 (1985) (emphasis added).
For nearly fifty years the Supreme Court has made clear
that its cases “have not embraced the proposition that a law
or other official act, without regard to whether it reflects a . . .
DIAZ v. BREWER 3589
discriminatory purpose, is unconstitutional solely because it
has a . . . disproportionate impact.” Washington v. Davis, 426
U.S. 229, 239 (1976); see, e.g., City of Cuyahoga Falls v.
Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) (“We
have made clear that proof of racially discriminatory intent or
purpose is required to show a violation of the Equal Protec-
tion Clause.”) (brackets and internal quotation marks omit-
ted); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 265 (1977) (same).
The panel side-stepped this fundamental proposition. It
cited no evidence that Section O was adopted with an intent
to discriminate. The panel instead embraced the district
court’s rationale that the law violated equal protection
because of its supposed disparate impact. But as the cases just
cited make clear, such a showing could not alone invalidate
Section O on equal protection grounds even under the highest
level of judicial scrutiny.
Rather than apply that settled law, the panel concluded that
United States Department of Agriculture v. Moreno, 413 U.S.
528 (1973), required a different result because (in the panel’s
view) Section O “adversely affects [a] particular[ ] group that
may be unpopular.” 656 F.3d at 1013. Moreno struck down
as irrational an amendment to the Food Stamp Act that ren-
dered ineligible for assistance any household containing a per-
son unrelated to any other member of the household. Taking
stock of legislative history “indicat[ing] that th[e] amendment
was intended to prevent so-called ‘hippies’ and ‘hippie com-
munes’ from participating in the food stamp program,” the
Court concluded that the amendment was motivated by “a
bare congressional desire to harm a politically unpopular
group,” which “cannot constitute a legitimate governmental
interest.” 413 U.S. at 534 (emphasis added; other emphasis
omitted). Moreno did not rest only on the law’s adverse
effect; rather, it applied the equal protection principles set
forth above to strike down a law motivated by a discrimina-
tory purpose.
3590 DIAZ v. BREWER
There is no such evidence that Section O was motivated by
animus. Section O’s context and history bears out that it rests
entirely on budgetary considerations. Until 2008, Arizona
limited state-employee dependent-partner health benefit cov-
erage to spouses. In 2008 it briefly relaxed that limitation. The
very next year, in the face of its budget crisis, Arizona
decided to return to its previous policy. That decision does not
show animus, actual or implied. Nor does Section O’s sup-
posed disparate impact on gays and lesbians. Indeed, Section
O most likely would burden many more opposite-sex than
same-sex couples because many more opposite-sex partners
would stand to lose their benefits. See 727 F. Supp. 2d at 800.
To conclude that the law will disproportionately affect same-
sex couples would require one to assume that the vast major-
ity of affected opposite-sex domestic partners would marry
just to preserve their benefits. Though the panel seemed to
credit that assumption, see 656 F.3d at 1014, the Arizona leg-
islature was entitled (particularly under rationality review, see
infra Part II-B) to presume that Section O would not spur a
mass rush into matrimony.
The plaintiffs here have simply not shown—as was their
burden, see Wayte, 470 U.S. at 608—that Section O was moti-
vated by a discriminatory intent. They have not even shown
a likely disparate effect that would harm them. The panel
therefore erred in finding a likely equal protection violation.
B
The panel also erred in holding that Section O cannot with-
stand rational basis review. Even in cases applying a robust
form of rationality review, the Supreme Court has made clear
that a legislative classification must be upheld “so long as it
bears a rational relation to some legitimate end.” Romer v.
Evans, 517 U.S. 620, 631 (1996). Those challenging a classi-
fication on rational basis grounds “have the burden to negat[e]
every conceivable basis which might support it.” FCC v.
DIAZ v. BREWER 3591
Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993) (internal
quotation marks omitted).
Here, the cost-savings rationale offered by the State was
sufficient to justify Section O. In 2008 and 2009, Arizona
faced a severe budget crisis. The State therefore enacted a
budget reconciliation bill that, among other cost-reduction
measures, tightened state-employee dependent-partner bene-
fits. Section O would have generated significant cost savings.
In the 2008-2009 plan year, domestic partner healthcare
claims cost the State more than $4.07 million; when the dis-
trict court granted the preliminary injunction, those claims
had already cost the State more than $5.49 million in the
2009-2010 plan year. 727 F. Supp. 2d at 812.
The panel nonetheless held that Section O is not rationally
related to cost saving because, in the panel’s view, “the sav-
ings depend upon distinguishing between homosexual and
heterosexual employees, similarly situated, and such a distinc-
tion cannot survive rational basis review.” 656 F.3d at 1014.
But that is clearly wrong as a matter of fact: The cost savings
depend on no such distinction. To the contrary, the savings
will come mostly from discontinuing benefits to opposite-sex
domestic partners because only “[a] small fraction” of those
receiving domestic partner benefits are in a same-sex partner-
ship. 727 F. Supp. 2d at 800.
Had the panel faithfully represented how Section O oper-
ates, it could not have condemned it as irrational. As already
explained, the legislature was entitled to believe that most
employees in opposite-sex domestic partner relationships
would not sprint to marry, and thus it was entitled to believe
that the lion’s share of the savings would come from ending
coverage for opposite-sex couples. The panel was obliged to
credit that determination and to uphold the law.
III
Beyond the damage done to established Fourteenth Amend-
ment law, the panel decision threatens to dismantle constitu-
3592 DIAZ v. BREWER
tional, statutory, and administrative provisions in those states
that wish to promote traditional marriage. The panel
concluded—in a way that is veiled but unmistakable—that
rules benefitting only traditional marriage serve no conceiv-
able rational purpose. That conclusion broadsides Arizona
voters, smothers their efforts (and the efforts of other voters
in this circuit) to protect traditional marriage, and clashes with
decisions of other courts.
Both states and the federal government have long sought to
embody, in the law, our Nation’s deep-rooted respect for tra-
ditional marriage. See, e.g., 28 U.S.C. § 1738C; Reynolds v.
United States, 98 U.S. 145, 164-66, 168 (OT 1878); Adams v.
Howerton, 673 F.2d 1036, 1039-40, 1042-43 (9th Cir. 1982);
Baker v. Nelson, 191 N.W.2d 185, 185-87 (Minn. 1971). In
the past decade alone, many states have amended their consti-
tutions to affirm that respect and to fortify the protections of
traditional marriage1 notwithstanding that some states have
voted to extend the status of marriage to same-sex couples.2
Arizona voters made clear their desire to protect this funda-
mental institution when, in November 2008, they amended
their constitution to define marriage as between one man and
one woman. See Ariz. Const. art. XXX, § 1. Section O
accords with their choice to recognize legally only traditional
marriage.
By concluding that Section O lacks any rational basis, the
panel condemned the considered views of Arizona’s voters
and all others who wish to promote traditional marriage
1
See, e.g., Fla. Const. art. I, § 27 (2008); Ga. Const. art. I, § 4, ¶ I
(2004); Idaho Const. art. III, § 28 (2006); Kan. Const. art. XV, § 16
(2005); Ky. Const. § 233A (2004); Mich. Const. art. I, § 25 (2004); Mo.
Const. art. I, § 33 (2004); Nev. Const. art. I, § 21 (2002); N.D. Const. art.
XI, § 28 (2004); Okla. Const. art. II, § 35 (2004); Or. Const. art. XV, § 5a
(2004); Tex. Const. art. I, § 32 (2005); Wis. Const. art. XIII, § 13 (2006).
2
See, e.g., 2012 Md. Laws Ch. 2 (H.B. 438); Vt. Stat. Ann. tit. 15, § 8
(2009).
DIAZ v. BREWER 3593
through the law. Without any supporting evidence, the panel
berated that choice as animated by “a bare desire to harm a
politically unpopular group.” 656 F.3d at 1015 (internal quo-
tation marks and ellipses omitted). That combustive conclu-
sion will spur challenges to other state constitutional and
statutory provisions that protect—indeed, even recognize—
traditional marriage. No such laws are now safe in the Ninth
Circuit: they are all, by the panel’s judicial declaration, begot-
ten from bigotry.
The panel’s bottom-line conclusion—that rules benefitting
only traditional marriage serve no conceivable rational
purpose—also clashes with Supreme Court precedent, with
our own case law, and with decisions of other federal and
state appellate courts holding that laws recognizing or pro-
moting traditional marriage do not violate the federal Consti-
tution. See, e.g., Baker v. Nelson, 409 U.S. 810 (1972)
(dismissing for want of a substantial federal question the
appeal from Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971));
Adams, 673 F.2d at 1042-43; Citizens for Equal Protection v.
Bruning, 455 F.3d 859, 871 (8th Cir. 2006); Jones v. Halla-
han, 501 S.W.2d 588, 590 (Ky. 1973); Baker, 191 N.W.2d at
185-87. Rather than showing similar respect for voters’
choices, the panel in this case stripped our circuit’s citizens of
the right to embody their long-accepted, long-heralded, and
long-cherished beliefs about marriage in their laws.
This case is in some ways even more breathtaking than our
recent decision in Perry v. Brown, Nos. 10-16696, 11-16577,
___ F.3d ___, 2012 WL 372713 (9th Cir. Feb. 7, 2012). Perry
struck down an amendment to California’s constitution that
restricted marriage to unions between a man and a woman.
But the Perry majority said that it was “address[ing] no . . .
question” regarding “the constitutionality of any ban on same-
sex marriage,” and was instead examining “whether the peo-
ple of a state may by plebiscite strip a group of a right or ben-
efit, constitutional or otherwise, that they had previously
enjoyed on terms of equality with all others in the state.” Id.
3594 DIAZ v. BREWER
at *17 n.14. By holding here that opposite-sex-only marriage
rules serve no rational purpose, the panel decided an issue that
bears directly—perhaps dispositively—on the broad question
expressly left open in Perry.
IV
The panel opinion conflicts with long-settled principles of
equal protection law. It hobbles the efforts of States and their
citizens to protect traditional marriage by condemning, as a
matter of federal constitutional law, such efforts as motivated
by unbridled, irrational hatred. It undermines the decision of
Arizona’s legislature to respond rationally to a historic budget
crisis. Although the panel’s decision was reached in the con-
text of an interlocutory appeal of a preliminary injunction, its
corrosive logic reaches further, all but proclaiming that limit-
ing benefits only to married couples is unconstitutional.
If our court were going to break so dramatically from long-
standing practice and tradition—and divide ourselves from
the weight of authority on a matter that is so important—we
should have done so only after reconsidering this matter en
banc.
I respectfully dissent.