Last week the Ninth Circuit denied Arizona's petition for rehearing en banc in Diaz v. Brewer. I have written about what I dislike about this case. In short, Arizona state employees had domestic partner health benefits for same- and different-sex partners, something made possible only because Arizona defeated a "super-DOMA" in 2006. The super-DOMA would have prohibited state recognition of not only same-sex marriage but rights for unmarried partners. Different-sex couples featured prominently in the campaign to defeat the super-DOMA. Then, in 2009, when the state revoked the benefits, Lambda Legal sued to block the rescission but only on behalf of workers with same-sex partners, effectively abandoning the constituency that made it possible for the gay employees to have the benefits in the first place.
The plaintiffs won in both the District Court and the Ninth Circuit, and it's the Ninth Circuit win that remains intact now that the Court will not hear it en banc. The panel ruled on Equal Protection grounds that there was discrimination against gay and lesbian employees and that the state could not justify the discrimination on the grounds of cost because there were so few same-sex couples taking advantage of the benefits. I'm writing a longer article now with my critique of Lambda's decision to abandon different-sex couples. Lambda has framed the case as seeking for gay employees what straight employees already have. They do this by asserting that since straight couples can marry they have lost nothing by losing domestic partner benefits. I do not support this dismissive and disrespectful characterization of unmarried different-sex couples. The movement I want to be a part of does not make marriage mandatory for different-sex OR same-sex couples, yet that's the upshot of the Lambda argument. All the gay plaintiffs swore that they would marry their partners if Arizona law allowed it. Presumably this means that those who did not want to marry could not be plaintiffs in this case. For a movement whose origins rest squarely with a commitment to family diversity, this amounts to abandoning a constituency of gay families and relationships that do not put themselves within the mold of marriage. If this is what equality gets us, it comes at the cost to the liberty and justice that used to animated discussions of LGBT families and relationships.
So the courts found the discrimination to exist against gay employees only precisely because different-sex couples can marry. At this posture, what's left for Arizona is to file for cert in the US Supreme Court. This case has received almost no media attention, and certainly nothing compared with that of Perry v. Brown, challenging California's Prop 8, or even the Gill case argued so ably by Mary Bonauto in the First Circuit Court of Appeals last week. The latter case concerns the constitutionality of the part of DOMA that denies federal recognition to legally married same-sex couples.
But Diaz is closer to US Supreme Court review than either of those cases. With this denial of en banc review, the case is ripe for a cert petition. The case places squarely before the Court whether a state that does not allow same-sex couples to marry may differentiate between same-sex couples and married heterosexual couples. Thus, it is a case with huge implications for anti-discrimination law. If the Supreme Court were to hear it, gay rights advocates would assert, in the highest court in the land, that it's fine for states to prefer married couples over unmarried couples, in fact that marriage is great and states can promote it; they just have to let same-sex couples who can't marry have access to the same benefits. No surprise to my steady readers that I hate this argument. There are a lot of LGBT folks who hate it too, but their voices aren't heard too loudly these days.