While waiting for the two dozen active judges of the U.S. Court of Appeals for the 9th Circuit to decide whether to grant en banc review in Perry v. Brown, 671 F.3d 1052 (February 7, 2012), a decision that affirmed on the merits the district court's ruling that California Proposition 8 violates the 14th Amendment by rescinding a previously recognized state constitutional right for same-sex couples to marry without any rational basis, consider the 9th Circuit's action on April 3, 2012, denying a petition for en banc review that has been on file since September 29, 2011, in Diaz v Brewer, 656 F.3d 1008 (9th Cir., Sept.6, 2011), petition for en banc review denied, 2012 WL 1109335 (April 3, 2012), in which a three-judge panel of the 9th Circuit had rejected the State of Arizona's appeal from an award of preliminary relief against the operation of a recent enactment that rescinded partner health benefits for the unmarried same-sex and different-sex partners of Arizona state employees.
The first thing to note, for those who are wondering how long it takes for the Circuit to rule on an en banc petition, is that in Diaz it took the Circuit more than 6 months to rule on the petition! Of course, it is likely that a substantial part of that time was due to the decision by 9th Circuit Judge Diarmuid O'Scannlain to write a dissent (joined by 9th Circuit Judge Carlos Bea). If a judge who wanted to grant en banc review decides to write a dissent from the decision by a majority of his colleagues not to grant such review, the announcement of the vote is, naturally, held up until the dissent can be written and circulated, so that the dissenting judge has a fair shot at trying to persuade enough of his colleagues to change their votes. In this case, Judge O'Scannlain was unsuccessful in persuading his colleagues.
So, the second thing to note is that the legal issues in Perry v. Brown and Diaz v. Arizona are distinct, but related, and the decision by a majority of the active 9th Circuit judges to deny en banc review in Diaz might foretell something about how they will vote on the Perry en banc petition.
In Diaz, the 3-judge panel, consisting of 9th Circuit Senior Judge Mary Schroeder, 9th Circuit Judge Sidney R. Thomas, and U.S. District Judge Mark W. Bennett (N.D. Iowa, sitting by designation), affirmed a decision by District Judge John W. Sedwick to block the provision changing the benefits rule from going into effect, on the ground that plaintiffs were likely to prevail on their claim that the change violated their Equal Protection rights under the 14th Amendment and a failure to preserve the status quo would deprive them of health insurance coverage while the case was pending.
In some ways, an analogy can be drawn between the issue of Diaz and the issue in Perry. In Diaz, plaintiffs (same-sex couples) briefly enjoyed domestic partnership benefits coverage granted administratively by the state government to its employees, which was then rescinded by the state legislature. In Perry, plaintiffs (same-sex couples) briefly enjoyed the right to marry under California law, by virtue of a ruling by the state's Supreme Court, which was then rescinded by the initiative enactment of Proposition 8 before the plaintiffs had an opportunity to actually marry. In both cases, one would think, the reasons (or lack of reasons) for withdrawing a previously granted right or benefit is at issue.
And, of course, underlying both cases is the question whether the promise of Equal Protection of the laws made by the 14th Amendment pertains in any way to a decision by a state whether to allow same-sex couples to marry or to enjoy benefits frequently associated with marriage, such as spousal health insurance coverage under employee benefit plans.
On the other hand, as Judge O'Scannlain clearly points out in his dissent, the two cases are very distinguishable substantively and procedurally. In an aside towards the end of his dissent, O'Scannlain refers to the 3-judge panel decision in Perry as "breathtaking," in the course of arguing that the panel decision in Diaz is "even more breathtaking" by ruling, in effect, that "opposite-sex-only marriage rules serve no rational purpose." Thus, he argues, the panel in Diaz "decided an issue that bears directly – perhaps dispositively – on the broad question expressly left open in Perry," where the three-judge panel had specifically disclaimed deciding the ultimate question whether same-sex couples have a federal constitutional right to marry.
O'Scannlain's main point in dissent, however, is that the panel, in his view, improperly contradicted Supreme Court precedent by holding Arizona's rescission of benefits likely to be unconstitutional on a "disparate impact" theory. That is, Arizona rescinded benefits from all unmarried partners, not just same-sex partners, but the district court and the panel accepted the plaintiffs' argument that this action potentially violates the Equal Protection Clause because it has a disparate adverse impact on same-sex couples, who are precluded from entering into a legal marriage recognized by Arizona due to an anti-same-sex marriage constitutional amendment adopted by the voters a few years ago. (Most opposite-sex couples for whom the benefits are important can marry to obtain them, of course.) Judge Sedwick's preliminary injunction only bars the state from rescinding benefits for same-sex couples, acknowledging the alternate route for coverage open to different-sex couples.
Judge O'Scannlain notes that the state's official justification for its measure was entirely financial. The partner benefits were extended at a time when the state's finances were healthier, and the decision to cut out all partner benefits was part of a budget reconciliation measure undertaken to deal with a state fiscal crisis that required significantly reducing expenditures; this was one of several measures undertaken to cut costs. Thus, O'Scannlain argues, in the absence of any evidence that the measure was passed specifically to target same-sex couples out of some sort of animus or moral disapproval by the legislature, he thought the panel opinion "conflicts with long-settled principles of equal protection law," as the Supreme Court has rejected the disparate impact theory in the context of a 14th Amendment equal protection claim unless the plaintiff can show that the legislature had a discriminatory motivation for its action.
Furthermore – and here signalling his likely views on Perry – "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 context of an interlocutory appeal of a preliminary injunction, its corrosive logic reaches further, all but proclaiming that limiting benefits only to married couples is unconstitutional." O'Scannlain concludes that such a "departure" should not be undertaken by a three-judge panel, but rather by an expanded panel of the circuit. (En banc panels in the 9th Circuit consist of the Chief Judge plus ten active circuit judges drawn at random.) He politely makes no mention of the fact that the three-judge panel in Diaz included only one active member of the Circuit, Judge Thomas; Judge Schroeder is a senior judge who is not eligible to vote on the en banc petition and Judge Bennett is a visiting district court judge from outside the boundaries of the 9th Circuit. O'Scannlain might argue as well that a panel thus constituted should be even more hesitant to depart from existing precedent, calling for en banc review by a large group of active 9th Circuit judges.
Of course, it could be that the majority of the circuit judges rejected en banc review because they felt it was premature, as the district court and panel decisions were not ruling on the ultimate merits of the case, but merely on whether the plaintiffs had shown a "likelihood" of success on the merits sufficient to justify pre-trial injunctive relief to preserve the "status quo" — continued enjoyment of the partner benefits — until the case can be decided on the merits. And, it seems likely, in a trial on the merits, the plaintiffs will have some opportunity to show that although all unmarried couples were affected by the challenged measure, there is a basis in the legislative record to argue that rescinding benefits specifically from same-sex couples was a motivating factor in its enactment, thus overcoming at least one of Judge O'Scannlain's objections to the ruling – the lack of such evidence.
What might this April 3 announcement in the Diaz case portend for Perry, the Proposition 8 case? Could it mean that most of the active 9th Circuit judges would rather not have to rule on the issue of legal rights and status of same-sex couples? Could it mean that most of the 9th Circuit judges are happy to let stand a panel decision casting doubt on the constitutionality of excluding same-sex couples from the same rights that state governments extend to different-sex couples through marriage? Or is that painting with too broad a brush, since there are indeed doctrinal and procedural differences between the two cases – not least that the decision in Perry was a panel ruling on the merits after a district court ruling on the merits following a trial, so the question of "premature" en banc review would not arise.