Some months ago, I highlighted the daffy decision in Diaz v. Brewer in which a Ninth Circuit panel ruled that a state that chooses to offer health-care benefits to domestic partners of state employees may not later decide to discontinue those benefits. Last week the Ninth Circuit denied the state’s petition for rehearing en banc. I am pleased to note, though, that Judge Diarmuid O’Scannlain issued a powerful dissent from the denial order. (The dissent begins on the second page of the denial order.)
Here, in brief, are Judge O’Scannlain’s three points:
1. “The panel’s holding rests on a disparate impact theory that the Supreme Court has squarely rejected.” Nor does the law even have the supposed disparate impact on gays and lesbians that the panel imagines, as it “most likely would burden many more opposite-sex than same-sex couples.”
2. The panel misapprehends rationality review. The cost-savings rationale offered by the state was sufficient to justify the law. (And the panel was wrong to contend that the cost savings depend on distinguishing between homosexual and heterosexual employees.)
3. “The panel concluded—in a way that is veiled but unmistakable—that rules benefitting only traditional marriage serve no conceivable 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.
It ought to be a matter of deep embarrassment to the Ninth Circuit that a panel could issue such a poorly reasoned and irresponsible decision and that the Ninth Circuit, as a whole, doesn’t have the wherewithal to correct the panel’s errors. But, alas, the Ninth Circuit has long been incapable of experiencing embarrassment.
I’ll also note that one of the judges who joined the original panel decision was Sidney Thomas, who had been talked about in 2010 as a candidate for the Supreme Court. I explained back then (here and here) that no one should be fooled into thinking that Thomas is some sort of moderate simply because he’s from Montana. Rather, he’s just Stephen Reinhardt in a cowboy hat. His vote in this case is just further evidence in support of that proposition.