Thursday, April 26, 2012

Diaz v. Brewer, 676 F.3d 823 (9th Cir. (2012)

Again rejecting voters and state legislatures, a 9th Circuit panel has continued its imposition of public policy  instead of legal analysis.  In addition, the court has constitutionalized Initiatives and legislation by applying the unbounded limits of "equal protection," "liberty interests" and "due process" foreclosing the opportunity for any further democratic input or correction. Only a short time ago a 9th Circuit panel rejected California voters, and the California Supreme Court in Perry v. Brown, 2012 WL 372713 (C.A. 9 2012), by disallowing state law prohibiting same sex marriage in an opinion emphasizing sociology rather than law. The 9th Circuit panel in Diaz v. Brewer prohibited Arizona from implementing savings to its budget crisis by ruling its legislation discriminates against same sex couples; Diaz v. Brewer, 656 F.3d 1000 (9th Cir. 2012. Rehearing denied. En banc denied.

The only issue in the case: legislation reducing health care benefits to all state employees whether married or unmarried.  All employees, without exception, took a deduction in health benefits in an attempt by the state legislature to produce a balanced budget.  According to the 9th Circuit panel, this legislation included unmarried domestic partners, therefore the legislation discriminated against them-despite the fact only a tiny percentage would be affected.  Why?  Because under Arizona law, same sex marriage is disallowed. 

The dissenting judges in Diaz, lamenting the failure of 9th Circuit judges to order an en banc hearing, comment on the omission of the three judge panel to use the equal protection analysis necessary to invalidate state law, i.e., a specific intent to discriminate.  Aside from the fact that Arizona legislation manifests no intent to discriminate in a budget, and there is no rational basis for challenging the law, and impliedly rejecting the constitutional basis for opposite sex marriage, the opinion is another sociology lesson.


The 9th Circuit has already achieved another record of reversals during the current Supreme Court term, and this case should be added to the list.

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