Arizona Governor Jan Brewer. Photograph by Gage Skidmore (CC BY-SA 3.0).

On July 2, 2012, Arizona Governor Jan Brewer announced that she has filed an appeal to the U.S. Supreme Court asking it to lift an injunction from the U.S. Court of Appeals for the Ninth Circuit that prevents the enforcement of a law aimed at stripping state workers of domestic partner benefits that she signed in 2009.

The appeal comes in the case of Diaz v. Brewer, which involves eligibility for healthcare benefits for the domestic partners of state employees. The case arose from the following circumstances.

In 2008, Governor Janet Napolitano by administrative action extended healthcare benefits to the domestic partners (both same-sex and opposite-sex) of state employees. Also in 2008, Arizona voters adopted a constitutional amendment defining marriage as the union of one man and one woman. In September 2009, the Republican legislature passed and Governor Brewer signed legislation that limited dependents of state employees to spouses and certain children, thus eliminating the healthcare benefits for domestic partners.

In November 2009, Lambda Legal Education and Defense Fund filed suit in United States District Court for the District of Arizona on behalf of ten plaintiffs, all state employees and domestic partners of a person of the same sex.

Lambda Legal argued that the redefinition of dependents was designed to discriminate against gay and lesbian employees and their domestic partners. Although the law is facially neutral in that it does away with benefits for both same-sex and opposite-sex domestic partners, gays and lesbians are disparately affected since opposite sex couples may marry in Arizona but same-sex couples cannot. Lambda Legal asked the court to issue a preliminary injunction to prevent the statute from taking effect.

On July 23, 2010, Judge John W. Sedwick granted a temporary injunction blocking enforcement of the law. The Court cited a study presented by the plaintiffs that showed that denying health benefits to same-sex partners would have a minimal impact on the state's $7.8 billion annual budget, saving at most $1.8 million, but would have a disastrous effect on the plaintiffs. The Judge rejected the state's argument that the denial of benefits to domestic partners was taken merely as a cost-saving measure rather than as a discriminatory action.

On September 6, 2011, a unanimous three-judge panel of the Ninth Circuit Court of Appeals affirmed the District Court's action in issuing the preliminary injunction.

Writing for the panel, Judge Mary M. Schroeder found it unnecessary to consider whether heightened scrutiny was required to evaluate the legislation since the statute failed under the rational basis review. She found that it violated the equal protection clause of the Fifth Amendment.

The defendants petitioned the Ninth Circuit for an "en banc review." On April 3, 2012, the petition was denied.

Brewer's petition to the Supreme Court will be decided when it returns from its summer recess, when it will also decide whether to hear challenges to district and appellate court decisions regarding the Defense of Marriage Act and California's Proposition 8.

Tara Borelli, senior staff attorney with Lambda Legal, expressed confidence that the injunction against the Arizona anti-gay law would remain standing.

"We are confident that the lower courts' decisions upholding domestic partner coverage for lesbian and gay employees will continue to carry the day," Borelli said. "Arizona's arguments have been turned down again and again by the federal courts, and we expect it will be no different here."

Lambda Legal has until August 6 to respond to Brewer's petition.

Diaz v. Brewer is an important case because it concerns important issues of equal protection and the targeting of gay people for discrimination under color of cost-savings and other apparently neutral concerns.

In the video below, Tara Borelli tells Lambda Legal's 2011 Women's Soiree about a number of cases the organization is pursuing in court, including Diaz v. Brewer.