!aaassseee     222: :000999-­-­-cccvvv-­-­-000222444000222-­-­-JJJWWWSSS              DDDooocccuuummmeeennnt t     111999              FFFi il leeeddd     000111/ /000777/ /111000              PPPaaagggeee     111     ooof f     444777

1 Jennifer C. Pizer (Pro Hac Vice)

2

Tara L. Borelli (Pro Hac Vice) LAMBDA LEGAL DEFENSE AND

3 EDUCATION FUND, INC.

3325 Wilshire Boulevard, Suite 1300 4 Los Angeles, California 90010

5 jpizer@lambdalegal.org tborelli@lambdalegal.org

6 Telephone: 213.382.7600

7 Facsimile: 213.351.6050

8 Daniel C. Barr (#010149)

Rhonda L. Barnes (#023086) 9 James E. Barton II (#023888)

10 PERKINS COIE BROWN & BAIN P.A. 2901 North Central Avenue, Suite 2000

11 Phoenix, Arizona 85012-2788

12

DBarr@perkinscoie.com RBarnes@perkinscoie.com

13 JBarton@perkinscoie.com

Telephone: 602.351.8000 14 Facsimile: 602.648.7000

15 Attorneys for Plaintiffs
16 Tracy Collins, Keith B. Humphrey, Joseph R. Diaz, Judith McDaniel, Beverly Seckinger,
17 Stephen Russell, Deanna Pfleger, Corey
18 Seemiller, Carrie Sperling and Leslie Kemp

19

UNITED STATES DISTRICT COURT

20

DISTRICT OF ARIZONA

21 Tracy Collins, Keith B. Humphrey, Joseph R.
22 Diaz, Judith McDaniel, Beverly Seckinger,

No. CV09-2402-PHX-JWS

23

Stephen Russell, Deanna Pfleger, Corey Seemiller, Carrie Sperling and Leslie Kemp,

24

Plaintiffs,

25

v.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

26 Janice K. Brewer, in her official capacity as
27 Governor of the State of Arizona; David 28 Raber, in his official capacity as Interim

!aaassseee     222: :000999-­-­-cccvvv-­-­-000222444000222-­-­-JJJWWWSSS              DDDooocccuuummmeeennnt t     111999              FFFi il leeeddd     000111/ /000777/ /111000              PPPaaagggeee     222     ooof f     444777

1 Director of the Arizona Department of

2

Administration and Personnel Board; Kathy Peckardt, in her official capacity as Director of

3 Human Resources for the Arizona Department

of Administration and Personnel Board; Philip 4 Hamilton, in his official capacity as Assistant

5 Director of the Benefits Services Division of the Arizona Department of Administration and

6 Personnel Board; and Does 1 through 100,

7

Defendants.

8

9

Plaintiffs Tracy Collins, Keith B. Humphrey, Joseph R. Diaz, Judith McDaniel,

10 Beverly Seckinger, Stephen Russell, Deanna Pfleger, Corey Seemiller, Carrie Sperling

11 and Leslie Kemp (collectively “Plaintiffs”) file this Complaint against Defendants Janice

12 K. Brewer, David Raber, Kathy Peckardt, Philip Hamilton, and Does 1 through 100

13 (collectively “Defendants”), and allege as follows:

14

I. INTRODUCTION

15

1. Plaintiffs seek declaratory and injunctive relief regarding the discriminatory

16 elimination of domestic partner health insurance benefits for lesbian and gay employees of

17 the State of Arizona (the “State”) who have a committed same-sex life partner. The

18 elimination of these employee benefits, which are a form of family insurance coverage,

19 from the compensation provided to the State’s lesbian and gay employees violates the

20 Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983.

21

2. The State offers valuable employment compensation in the form of family

22 insurance coverage to its heterosexual employees who choose to marry, which includes

23 subsidized participation of State employees’ spouses and spouses’ qualifying children

24 (also referred to herein as “immediate family members”) in the State’s employee group

25 health plans.

26

3. In 2008, the State adopted a regulation that provided similar compensation

27 for lesbian and gay employees in the form of similar family coverage for State employees

28 with a committed same-sex life partner.

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1

4. On September 4, 2009, Defendant Arizona Governor Janice K. Brewer

2 reviewed, approved and signed House Bill 2013 (“H.B. 2013”), a budget enactment that

3 includes a statutory provision (“Section O”) eliminating family coverage for lesbian and

4 gay State employees by limiting such family coverage to “spouses,” a status that Arizona

5 has restricted to different-sex life partners only. As detailed further below, duly

6 authorized State officials have announced that Section O will apply and have this effect at

7 the end of the current employee health plan year, on or around October 1, 2010.

8

5. Plaintiffs are lesbian or gay State employees each of whom currently

9 receives family coverage for his or her committed same-sex life partner. The selective

10 withdrawal of family coverage from lesbian and gay State employees—while leaving

11 family coverage intact for heterosexual State employees with a legally recognized

12 spouse—will deny each Plaintiff equal compensation for equal work and discriminatorily

13 inflict upon each Plaintiff and his or her family members anxiety, stress, risk of untreated

14 or inadequately treated health problems, and potentially ruinous financial burdens.

15

6. Plaintiffs will lose health insurance coverage for their committed life

16 partners who need ongoing care for diabetes, high blood pressure and glaucoma, among

17 other chronic conditions. Certain Plaintiffs will lose family coverage for committed life

18 partners who presently are healthy but have had serious illnesses in the past and fear such

19 illness in the future. Other Plaintiffs will lose health coverage for life partners who

20 presently are healthy but who fear future illness and lack the means to purchase individual

21 insurance coverage. One Plaintiff will lose coverage for the child she co-parents with her

22 committed life partner, who is the child’s biological mother.

23

7. Plaintiffs will suffer these harms based on their sexual orientation and their

24 sex in relation to the sex of their committed life partner because the State has enacted

25 legislation that intentionally eliminates family health insurance for lesbian and gay State

26 employees and not heterosexual employees. As a result of the adoption and enforcement

27 of Section O, heterosexual State employees continue to have a way of obtaining family

28 health insurance but the only way lesbian and gay State employees have had to obtain that

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1 insurance has been eliminated. The adoption and enforcement of Section O provides that

2 Plaintiffs’ heterosexual co-workers will receive privileged treatment—including

3 protection against health-related anxiety, stress, medical risk and financial hardship—

4 based on their sexual orientation and their sex in relation to that of their committed life

5 partners because they are offered a way to qualify immediate family members for health

6 insurance and Plaintiffs are not.

7

8. There is no legitimate, let alone important or compelling, governmental

8 interest to justify compensating lesbian and gay State employees, including Plaintiffs,

9 unequally by denying any means to qualify immediate family members for health

10 insurance.

11

9. With regard to the workplace, Plaintiffs and their respective same-sex life

12 partners are similarly situated in every relevant respect to their heterosexual co-workers

13 with different-sex life partners who are provided a way of obtaining family health

14 insurance coverage and who, if they avail themselves of that benefit, are provided it as

15 part of their employment compensation.

16

10. The Plaintiffs’ employment is no less demanding, and their service to the

17 public no less valuable, than that of their heterosexual co-workers with the same jobs who,

18 unlike the Plaintiffs, are provided a way of obtaining family health insurance coverage

19 and, if they avail themselves of that benefit, will continue to receive family coverage as

20 part of their compensation.

21

11. By denying Plaintiffs any way to qualify for family coverage upon the

22 effective date of Section O, Defendants subject Plaintiffs to irreparable harm in the form

23 of increased medical risks, emotional injuries, potentially ruinous financial costs, and a

24 stigmatizing government label of inferiority imposed on each of them and all other lesbian

25 and gay State employees, all as described below, without any adequate governmental

26 justification.

27

28

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1

II. PARTIES

2

A. Plaintiffs

3

12. Plaintiff Tracy Collins is employed by the State as a senior highway patrol

4 officer with the Arizona Department of Public Safety (“DPS”). Collins is stationed in and

5 is a resident of the town of Quartzsite, Arizona.

6

13. Plaintiff Keith B. Humphrey is employed by the State as Assistant Vice

7 President for Student Affairs and Adjunct Assistant Professor of the Practice of Higher

8 Education at the University of Arizona (“U of A”). Humphrey is a resident of Tucson,

9 Arizona.

10

14. Plaintiff Joseph R. Diaz is employed by the State as an Associate Librarian

11 at U of A. Diaz is a resident of Tucson, Arizona.

12

15. Plaintiff Judith McDaniel is employed by the State as an Adjunct Instructor

13 in the Political Science and Women’s Studies Departments at U of A. McDaniel is a

14 resident of Tucson, Arizona.

15

16. Plaintiff Beverly Seckinger is employed by the State as a Professor of Media

16 Arts and Interim Director of the School of Media Arts at U of A. Seckinger is a resident

17 of Tucson, Arizona.

18

17. Plaintiff Stephen Russell is employed by the State as a professor, Fitch

19 Nesbitt Endowed Chair in Family and Consumer Sciences in the John & Doris Norton

20 School of Family and Consumer Sciences, and Director of the Frances McClelland

21 Institute for Children, Youth, & Families at U of A. Russell is a resident of Tucson,

22 Arizona.

23

18. Plaintiff Deanna Pfleger is employed by the State as a peace officer and

24 presently serves as a Wildlife Manager III for the Arizona Game and Fish Department.

25 Pfleger is a resident of Lake Havasu City, Arizona.

26

19. Plaintiff Corey Seemiller is employed by the State as the Program Director

27 for Curricular Leadership in the Center for Student Involvement & Leadership at U of A.

28 Seemiller is a resident of Tucson, Arizona.

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!aaassseee     222: :000999-­-­-cccvvv-­-­-000222444000222-­-­-JJJWWWSSS              DDDooocccuuummmeeennnt t     111999              FFFi il leeeddd     000111/ /000777/ /111000              PPPaaagggeee     666     ooof f     444777

1

20. Plaintiff Carrie Sperling is a Visiting Clinical Associate Professor of Law at

2 Arizona State University. Sperling is a resident of Phoenix, Arizona.

3

21. Plaintiff Leslie Kemp is a Marketing Coordinator at Northern Arizona

4 University. Kemp is a resident of Sedona, Arizona.

5

B. Defendants

6

22. Defendant Janice K. Brewer is sued in her official capacity as Governor of

7 the State. Governor Brewer is a person within the meaning of 42 U.S.C. § 1983 and was

8 acting under color of state law at all times relevant to this complaint. As Governor, she

9 has the duty and authority to transact all executive business with the officers of the

10 government and the duty to ensure that the laws are faithfully executed. As Governor, she

11 also is charged to supervise the official conduct of all executive and ministerial officers,

12 and to ensure that all offices are filled and all duties performed. Defendant Brewer

13 reviewed and approved Section O. She was and is directly responsible for the

14 implementation and enforcement of Section O.

15

23. Defendant David Raber is sued in his official capacity as Interim Director of

16 the Arizona Department of Administration (“the Department”). Defendant Raber is a

17 person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at

18 all times relevant to this complaint. As Director of the Department, Defendant Raber is

19 responsible for the direction, operation and control of the Department and is responsible to

20 the Governor for the direction, control and operation of the Department. Defendant Raber

21 formulates policies and programs to assess, plan and effectuate the missions and purposes

22 of the Department. He also makes contracts and incurs obligations to carry out the

23 Department’s activities and operations, which will include direct responsibility to

24 implement and enforce Section O’s termination of domestic partner benefits for lesbian

25 and gay State employees with a same-sex life partner.

26

24. Defendant Kathy Peckardt is sued in her official capacity as the Director of

27 Human Resources for the Department. Defendant Peckardt is a person within the

28 meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant

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1 to this complaint. Upon information and belief, Defendant Peckardt plays a direct,

2 personal and leading role in determining the structure of, and eligibility for, the State’s

3 health benefits plans. Defendant Peckardt led the Department’s transition from fully

4 insured to self-insured health benefits plans; established the State’s employee portal

5 providing access to human resources information; and oversees the State’s Human

6 Resources Information Solution, an integrated benefits, payroll and human resources

7 system. Upon information and belief, these and Defendant Peckardt’s other

8 responsibilities require her direct and personal involvement in the implementation of

9 Section O.

10

25. Defendant Philip Hamilton is sued in his official capacity as Assistant

11 Director for the Arizona Department of Administration Services Division. Defendant

12 Hamilton is a person within the meaning of 42 U.S.C. § 1983 and was acting under color

13 of state law at all times relevant to this complaint. As Assistant Director, Defendant

14 Hamilton is the Plan Administrator for the State, which includes managing the group

15 plans through which $750 million in health, dental, life, disability and vision insurance

16 benefits are provided to approximately 140,000 state employees, retirees, and their

17 dependents. Upon information and belief, these and Defendant Hamilton’s other

18 responsibilities require his direct and personal involvement in the implementation of

19 Section O.

20

26. Plaintiffs are unaware of the true names of those Defendants named herein

21 as Does 1 through 100 inclusive, and hereby seek leave of this Court to allege their true

22 identities after they have been discovered, as though they had been correctly identified

23 herein.

24

27. Each of the Defendants intentionally performed, participated in, aided

25 and/or abetted in some manner the acts averred herein, proximately caused the harm

26 averred herein, and will injure Plaintiffs irreparably if not enjoined.

27

28

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1

III. JURISDICTION AND VENUE

2

28. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the

3 deprivation under color of state law of rights secured by the United States Constitution.

4

29. This Court has original jurisdiction over the subject matter of this action

5 pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under

6 the Constitution and laws of the United States.

7

30. Venue is proper in this Court under 28 U.S.C. § 1391(b) because

8 Defendants reside within the District of Arizona and a substantial part of the events that

9 gave rise to Plaintiffs’ claims took place within the District of Arizona.

10

31. This Court has the authority to enter a declaratory judgment and to provide

11 preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal

12 Rules of Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.

13

32. This Court has personal jurisdiction over Defendants because they are

14 residents of the State.

15

IV. FACTS

16 A. 17 18

The State Has Adopted A Discriminatory Employment Compensation System To Deny Family Coverage To Lesbian and Gay State Employees Who Are Similarly Situated To Heterosexual State Employees In All Material Respects. 33. Article 30 § 1 of the Arizona Constitution prevents gay men and lesbians

19 from entering into a civil marriage in the State with a committed same-sex life partner and

20 prohibits the State from honoring a civil marriage validly entered by a committed same-

21 sex couple in another jurisdiction.

22

34. Article 30 § 1 does not prevent the State from providing family coverage to

23 lesbian and gay employees, nor does it authorize employment discrimination based on

24 sexual orientation or a person’s sex in relation to his or her life partner’s sex.

25

35. As part of the State’s personnel compensation system, the State provides its

26 heterosexual employees the ability to obtain certain valuable family health benefits,

27 including subsidized access for an employee’s different-sex spouse and qualifying

28

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1 children to health care coverage through the health benefits plans offered by the State to

2 its employees.

3

36. Arizona Administrative Code § R2-5-101 (the “benefits regulation”) was

4 amended in 2008 to provide, inter alia, lesbian and gay State employees, who had

5 previously been denied access to family coverage, with the ability to obtain subsidized

6 access for a committed same-sex life partner and the partner’s qualifying children, and

7 thereby to obtain employment compensation equal to their heterosexual coworkers, if the

8 lesbian or gay employee and her or his life partner satisfy rigorous standards of proof of

9 financial interdependence.

10

37. Section (22)(a)-(j) of the benefits regulation provides that to qualify for

11 family coverage, an employee must have a committed life partner who:

12

a. Shares the employee’s permanent residence;

13

b. Has resided with the employee continuously for at least 12 months and is

14

expected to continue to reside with the employee indefinitely;

15

c. Does not have any other domestic partner or spouse, has not signed a

16

declaration of domestic partnership with any other person, and has not

17

had another domestic partner within the prior 12 months;

18

d. Is not a blood relative any closer than would prohibit marriage in

19

Arizona;

20

e. Was mentally competent and of legal age to consent to contract when the

21

domestic partnership began, is not acting under fraud or duress in

22

accepting benefits; and

23

f. Is financially interdependent with the employee as demonstrated, for

24

example, through joint ownership of real property or significant personal

25

property; joint credit or bank accounts; shared debt; beneficiary

26

designations on life insurance or retirement annuities; and written

27

agreements to assume financial responsibility for each other.

28

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1

38. Each Plaintiff enrolled his or her domestic partner, or partner’s qualifying

2 children, for family coverage during the open enrollment period for the 2009 benefits plan

3 year. Each Plaintiff and his or her domestic partner, or partner’s qualifying children, met

4 the eligibility requirements for family coverage at the time of enrollment and continues to

5 meet those requirements.

6

39. On August 20, 2009, the Arizona House of Representatives transmitted H.B.

7 2013 to Defendant Brewer for review, consideration and approval or rejection in her

8 capacity as the Governor of Arizona. [A true and correct copy of House Bill 2013 is

9 attached as Exhibit A.] H.B. 2013, amends, inter alia, A.R.S. § 38-651, the statute that

10 authorizes the Department to procure health and accident coverage for State employees

11 and their qualifying dependents. H.B. 2013 adds to A.R.S. § 38-651 a section “O,” which

12 provides that, “For the purposes of this section, beginning October 1, 2009, ‘dependent’

13 means a spouse under the laws of this state, a child who is under nineteen years of age or a

14 child who is under twenty-three years of age and who is a full-time student.” Defendant

15 Brewer reviewed, approved and then signed H.B. 2013 on September 4, 2009.

16

40. The purpose and effect of Section O’s restriction of family coverage to a

17 “spouse” is to eliminate family coverage for lesbian and gay State employees with a

18 committed same-sex life partner and qualifying children of that partner. While the

19 benefits regulation allowed employees to receive coverage for either a same- or different-

20 sex domestic partner, and Section O also eliminates coverage for heterosexual employees

21 with an unmarried different-sex domestic partner, the law does not discriminatorily

22 preclude these heterosexual employees ever from qualifying for family coverage in the

23 future. But unlike their heterosexual co-workers who are in different-sex partnerships and

24 can marry, lesbian and gay State employees with a same-sex life partner are entirely

25 precluded from obtaining family coverage because Section O limits the ability to get such

26 coverage to those who have a spouse, which excludes lesbians and gay men because

27 current Arizona law does not allow same-sex couples to marry in the State and, if validly

28 married in another state or country, requires that they be treated as unmarried.

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1

41. Section O reverses the State’s policy of offering equal compensation in the

2 form of family coverage to lesbian and gay State employees with a committed same-sex

3 life partner.

4

42. The State’s exclusion of its lesbian and gay employees from access to

5 family coverage denies those employees, including Plaintiffs, valuable and equal

6 compensation because of each Plaintiff’s sexual orientation and sex in relation to his or

7 her committed life partner.

8

43. The public policies underlying the State’s employment benefits—such as

9 fair compensation and reducing the stress employees undergo during family health

10 emergencies and other family crises—are equally applicable to lesbian and gay State

11 employees who have made a life commitment to a same-sex life partner, including

12 Plaintiffs, who have demonstrated the binding and committed, financially interdependent

13 nature of their family partnerships by satisfying the State’s criteria for proving an eligible

14 domestic partnership. It does not further these state public policies, and in fact

15 undermines them, for the State to provide only heterosexual State employees who have a

16 different-sex life partner with a way of qualifying for family benefits, and to provide

17 lesbian and gay State employees with a same-sex life partner no way to do so.

18

44. Section O specified an intended effective date of October 1, 2009. On

19 September 25, 2009 the Department announced on its website that “[b]ased on advice

20 from the Office of the Attorney General” the Department would recognize November 24,

21 2009 as the effective date for the statute. The Department’s announcement also provided

22 that, “[a]ny benefit that has been earned and vested through November 24, 2009, is not

23 subject to being taken away retroactively to October 1, 2009.” The announcement stated

24 that, “[o]ther questions raised by H.B. 2013, such as the definition of dependent and its

25 applicability after November 24, 2009, are still under review,” and that further

26 information would be posted on the Department’s website after the review was complete.

27 [A true and correct copy of the Department’s September 25, 2009 statement is attached as

28 Exhibit B.]

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1

45. On October 9, 2009 the Department posted another announcement stating

2 that, “[b]ased upon legal advice from the Office of the Attorney General, the definition of

3 ‘dependent’ for the State insurance plan year beginning October 1, 2009 is not affected by

4 H.B. 2013 because any interpretation to the contrary would impair the lawful contract

5 expectations of state employees in violation of the Arizona Constitution. The definition of

6 ‘dependent’ currently in place will remain effective through September 30, 2010. Please

7 note the definition of dependent defined in H.B. 2013 will apply as of October 1,

8 2010.” (emphasis in original). [A true and correct copy of the Department’s October 9,

9 2009 statement is attached as Exhibit C.]

10

46. The Department’s October 9, 2009 announcement confirms that the State’s

11 lesbian and gay employees, including Plaintiffs, will be stripped of their family coverage

12 as of October 1, 2010. Plaintiffs face uncertainty about Section O’s implementation date

13 because, in the absence of an injunction prohibiting enforcement of Section O, the

14 Department may decide at any time to revisit its decision to not enforce Section O before

15 October 1, 2010.

16

B. Plaintiffs Are Similarly Situated To Heterosexual State Employees In All

Material Respects And Are Injured By The Discriminatory Elimination Of

17

Their Family Health Insurance Benefits.

18

47. Plaintiffs are highly skilled and valuable State employees whose job duties

19 are neither different from their heterosexual co-workers nor reduced due to their sexual

20 orientation or marital status.

21

48. Each Plaintiff seeks to maintain the family coverage for his or her

22 immediate family members that he or she currently receives and relies upon as an

23 important part of employment compensation. Each Plaintiff established eligibility for

24 such family coverage at the time of enrollment, and remains eligible at the present time.

25 Each Plaintiff authorized continued pay check deductions for his or her portion of the

26 health plan premiums, with the intent and desire to continue contributing to and receiving

27 family coverage.

28

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1

1. Plaintiff Tracy Collins.

2

49. Plaintiff Tracy Collins (“Tracy”) has been a loyal and dedicated State

3 employee for 14 years. Tracy began her law enforcement career with the Arizona

4 Department of Corrections and now works as a senior highway patrol officer for the

5 Arizona Department of Public Safety (“DPS”). Tracy enlisted in the United States Air

6 Force Reserve and served from 1990 until her honorable discharge as a Staff Sergeant in

7 1998.

8

50. Tracy’s current station in Quartzsite, Arizona is classified as a “remote duty

9 station” because it lacks city amenities such as easy access to grocery stores and medical

10 facilities, as well as the level of police backup that is available to police officers in cities.

11 Working there, Tracy often must wait much longer for support to arrive from other

12 locations, which can involve greater safety risks and other job challenges.

13

51. Tracy’s responsibilities include enforcement of Arizona’s criminal and

14 traffic codes, drug and weapons interdiction, and monitoring for terrorist activity. Tracy

15 also is a Field Training Instructor responsible for training and evaluating junior officers.

16 She has special expertise in drug recognition enforcement and trains other officers on that

17 subject.

18

52. Tracy and Diana Forrest (“Diana”) will celebrate their 11-year anniversary

19 as a loving, committed couple in March 2010. They held a commitment ceremony in May

20 2000, which was a transformative event for them marking not only their profound

21 commitment to each other but also the integration of their families. Tracy and Diana

22 would marry each other if the State permitted them to do so.

23

53. Tracy and Diana are completely financially interdependent. They maintain

24 a joint checking account and credit card, and co-own their car. Diana is the primary

25 beneficiary of Tracy’s retirement account and life insurance policy. Diana has not

26 similarly named Tracy as the beneficiary of her accounts only because she has no such

27 accounts. Tracy and Diana have durable health care powers of attorney naming each

28 other to make medical decisions in the event either is unable to do so.

-13-

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1

54. Diana brought two daughters to the couple’s relationship, and Tracy has

2 helped support them, emotionally and financially, as well as Diana’s nephew after he was

3 left homeless at age 15. The couple became his joint legal guardians and cared for him

4 until he became an adult.

5

55. Tracy and Diana have made a mutual commitment to assume responsibility

6 for each other’s expenses, including health expenses, and already have supported each

7 other through a financially and emotionally devastating experience with illness. In 1999,

8 Diana developed debilitating pain that caused constant nausea and rendered her unable to

9 work. She was bedridden for five years, forcing their family to live on Tracy’s salary

10 alone. Numerous medical specialists tried but could not diagnose Diana’s illness. Diana

11 remained ill for seven years.

12

56. Because Diana did not have health insurance coverage for the first two years

13 of her illness, her medical expenses and the cost of supporting their teenage children

14 quickly overwhelmed the couple’s finances. Tracy was forced to file bankruptcy.

15

57. Diana began receiving coverage through the Arizona Health Care Cost

16 Containment System (“AHCCCS”) Medicaid program two years into her illness, and fully

17 recovered her health in December of 2007. This experience left Tracy and Diana

18 painfully aware of and anxious about their vulnerability if Diana were to experience

19 another serious illness.

20

58. Diana also needs medications to manage her high blood pressure. While

21 each medication is available for a $10.00 co-pay fee through the family coverage Tracy

22 currently receives for Diana, the couple will have to pay far more out-of-pocket for those

23 medications when Tracy’s family coverage is eliminated.

24

59. Diana currently works for La Paz County in a position funded by a grant

25 without employment benefits, but her income disqualifies her from coverage through

26 AHCCCS.

27

60. Tracy and Diana are extremely distressed that Tracy’s family coverage will

28 be eliminated because of a selective targeting of lesbian and gay State employees for

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!aaassseee     222: :000999-­-­-cccvvv-­-­-000222444000222-­-­-JJJWWWSSS              DDDooocccuuummmeeennnt t     111999              FFFi il leeeddd     000111/ /000777/ /111000              PPPaaagggeee     111555     ooof f     444777

1 disfavored treatment. Tracy takes great pride in her work and has never before thought

2 about leaving her career in law enforcement with the State. Tracy now worries that she

3 may have no choice, however, other than to seek work elsewhere to ensure that Diana has

4 the health insurance their family needs.

5

2. Plaintiff Keith B. Humphrey.

6

61. Plaintiff Keith B. Humphrey (“Keith”) is the Assistant Vice President for

7 Student Affairs and Adjunct Assistant Professor of Higher Education at the U of A.

8

62. Keith’s life partner is Robert “Brett” Klay (“Brett”). Keith and Brett

9 celebrated their seven-year anniversary in June 2009. They registered as domestic

10 partners with the City of Tucson in 2005, and signed documents for their protection,

11 including a trust for each other’s benefit, wills designating each other as the primary

12 beneficiary, and durable health care powers of attorney and mental health care powers of

13 attorney authorizing the other to make health decisions in the event of either’s incapacity.

14 The couple’s bank accounts are jointly held and they would enter a civil marriage if

15 Arizona law permitted it.

16

63. Brett worked as a factory foreman for over 10 years. In 2006, he left his job

17 to become a stay-at-home father to the couple’s children. Keith and Brett are raising

18 Brett’s 15-year-old biological son and two additional foster children with significant

19 medical needs that require Brett to stay home to care for them.

20

64. When Brett and Keith first became foster parents and Brett left his factory

21 job, family coverage was not available to lesbian and gay State employees. Brett obtained

22 rudimentary coverage for two years through AHCCCS, and Keith enrolled him for family

23 coverage through U of A when it became available in 2008.

24

65. In August of 2009, Brett was diagnosed with a torn carotid artery, a life-

25 threatening condition. He was hospitalized for six days. A tear in the carotid artery

26 cannot be repaired surgically, and instead must heal on its own over a period many

27 months. Brett’s daily regimen of medications and frequent tests must continue until the

28

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1 artery heals. If he does not take the medication, he will be at risk for a potentially fatal

2 blood clot.

3

66. Brett’s medication would cost approximately $400.00 a month out-of-

4 pocket, and the tests he needs to monitor his carotid artery would cost approximately

5 $770.00 out-of-pocket.

6

67. Brett has other serious medical conditions that have required hospitalization

7 and require daily medications and constant medical supervision.

8

68. Because Keith and Brett have placed the home Keith bought in their trust,

9 for which Brett is a beneficiary, Brett is unlikely to qualify for coverage through

10 AHCCCS. Without coverage through Keith’s employment at U of A, Brett probably will

11 be unable to get insurance or to afford treatment he will need for his pre-existing

12 conditions.

13

3. Plaintiff Joseph R. Diaz.

14

69. Plaintiff Joseph R. Diaz (“Joseph”) is an Associate Librarian at U of A,

15 where he has worked since June 1992.

16

70. Joseph’s life partner is Ruben E. Jiménez (“Ruben”). They have spent more

17 than 17 years together as a committed, loving couple and would marry if permitted by

18 Arizona law.

19

71. Joseph and Ruben have intertwined all of their finances and taken steps to

20 protect each other in the event of a crisis. They hold their checking and savings accounts

21 jointly, and own their house as joint tenants with a right of survivorship. They have

22 named each other as the primary beneficiary in their wills and on their retirement

23 accounts, and as the agent in their durable health care powers of attorney. Joseph and

24 Ruben have supported each other emotionally and financially throughout life’s challenges

25 and have exchanged promises to continue to do so throughout the rest of their lives

26 together.

27

72. When U of A began offering family coverage to lesbian and gay employees

28 in 2008, Joseph enrolled Ruben for family coverage. Ruben then was able to leave his

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1 low-wage job with health benefits for a better-paying position without such benefits. It is

2 essential that Joseph and Ruben have insurance coverage for Ruben because he has high

3 cholesterol and Type 2 diabetes, a chronic, lifelong disease. Ruben requires daily

4 medication and testing strips which would cost approximately $300.00 a month out-of-

5 pocket, far more than Ruben’s current co-pay through Joseph’s family coverage.

6

73. Joseph and Ruben have investigated whether Ruben will be eligible to

7 receive health coverage through AHCCCS when Joseph’s family coverage is eliminated.

8 They discovered that he earns approximately $100.00 too much per month.

9

74. Joseph and Ruben have consulted with a private insurance agent to ascertain

10 whether they will be able to purchase a private insurance plan for Ruben. The agent has

11 informed them that she could not locate any individual insurance plans in Arizona that

12 would cover a person like Ruben with diabetes and high cholesterol.

13

75. The threat of losing coverage for Ruben through Joseph’s State employment

14 places this couple under tremendous pressure and stress. They would be spared this

15 anxiety and the risk of severe financial hardship if Joseph could remain eligible for the

16 same compensation as his heterosexual colleagues, including continued family coverage.

17

4. Plaintiff Judith McDaniel.

18

76. Plaintiff Judith McDaniel (“Judith”) is an Adjunct Instructor in the Political

19 Science and Women’s Studies Departments at U of A. She has a Ph.D. in English

20 Literature from Tufts University and a Juris Doctor degree from Rutger’s School of Law,

21 with a teaching specialty in women and the law. Judith is 66 years old.

22

77. Judith’s devoted life partner is Janet Schwartz (“Jan”), who is 62 years old.

23

78. Judith and Jan have known each other since 1983 and have been in a

24 committed, loving relationship for nearly twenty years. They held a commitment

25 ceremony in the tradition of Judith’s Quaker faith, have registered as domestic partners

26 with the City of Tucson, and married in Massachusetts on May 17, 2004, the first day that

27 same-sex couples were permitted to marry in that state. Jan has two grandsons who live

28 in Florida, and the couple shares grandparenting responsibilities.

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1

79. Judith and Jan have completely commingled their finances over their years

2 together. They share responsibility for their household expenses and maintain joint

3 checking and savings accounts. They hold all credit cards in both names, and own their

4 real property as joint tenants with a right of survivorship. Each has named the other as the

5 primary beneficiary in their wills. They have durable health care powers of attorney

6 naming each other. Judith and Jan are keenly aware of the need to take these legal steps

7 as their ages advance, and Judith’s family health insurance coverage for Jan has been a

8 key part of building their domestic security.

9

80. Judith and Jan have supported each other financially at different points in

10 their respective careers. Jan helped pay for Judith’s tuition and supported Judith during

11 law school. After Judith graduated, Jan pursued a graduate degree at Prescott College,

12 and Judith supported the couple financially during Jan’s studies. Jan previously

13 purchased health coverage as a student through Prescott College, but enrolled for the

14 better family coverage through Judith’s employment instead when it became available.

15 Jan graduated in December of 2009 and no longer qualifies for student coverage.

16

81. Judith and Jan recently started an education consulting business together,

17 but make only a modest income through that work at this point.

18

82. Jan has been diagnosed twice with breast cancer, in 1978 and in 1990.

19 Judith and Jan are grateful that Jan has not had recurrences since then, but Jan’s cancer

20 history means she must have regular check-ups both to check for a recurrence of the

21 breast cancer and because her history means she may be more susceptible to other types of

22 cancer. Jan’s appointments with her obstetrician/gynecologist would cost approximately

23 $170.00 out-of-pocket, not including the costs of tests. Jan’s current co-pay for those

24 appointments through Judith’s family coverage is $20.00.

25

83. Jan also has low-tension glaucoma, a chronic condition that can lead to

26 irreversible vision loss. Yearly eye exams cost approximately $100.00, in comparison to

27 Jan’s current $20.00 co-pay. The eye pressure exam Jan requires every three months

28 would cost her $65.00, compared to her current $20.00 co-pay. Jan requires eye drops for

-18-

!aaassseee     222: :000999-­-­-cccvvv-­-­-000222444000222-­-­-JJJWWWSSS              DDDooocccuuummmeeennnt t     111999              FFFi il leeeddd     000111/ /000777/ /111000              PPPaaagggeee     111999     ooof f     444777

1 her condition, which would cost approximately $180.00 every two months if paid out-of-

2 pocket rather than Jan’s $20.00 co-pay fee through Judith’s family coverage. Jan may

3 require surgery as her condition deteriorates and she needs exams to monitor her eyes

4 every three months. The appointments require only a $20.00 co-pay fee now, but would

5 be far more expensive without the family health insurance. Judith and Jan worry that Jan

6 may require expensive eye surgery before she becomes eligible for Medicare coverage in

7 mid-2012. Delaying the surgery would not be a viable option, as time will be of the

8 essence to preserve her sight if she deteriorates enough to need surgery.

9

84. Judith and Jan have explored alternative sources of health insurance for Jan

10 without success. Their insurance broker informed them that private insurers may insure

11 Jan for care that may include cancer, but that Jan’s glaucoma is an uninsurable pre-

12 existing condition regardless of price. Among Jan’s options for an individual plan to

13 cover her other needs, excluding the glaucoma, the lowest deductible Jan can get is

14 $2,600.00 for a monthly payment of $335.00. Judith and Jan have no deductible through

15 the group plan coverage Judith receives through her employment, and their monthly

16 contribution to the premium of $97.00 covers both of them. Jan’s modest income from

17 the couple’s business makes her ineligible for coverage through AHCCCS.

18

85. Judith’s income as an instructor also is modest, which makes the family

19 coverage offered by U of A extremely important to them. The stripping of family

20 coverage from lesbian and gay State employees like Judith comes at a financially

21 precarious time for this couple, as they approach their retirement in an economic

22 downturn that has significantly reduced their retirement savings.

23

5. Plaintiff Beverly Seckinger.

24

86. Plaintiff Beverly Seckinger (“Beverly”) is a Professor and Interim Director

25 of the School of Media Arts at U of A, where she has worked since 1991. Beverly is 50

26 years old.

27

87. Beverly’s beloved life partner is Susan Taunton (“Susan”), who is 55 years

28 old.

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1

88. Beverly and Susan have been in an exclusive, committed relationship for 22

2 years. They own their home together as joint tenants with rights of survivorship. Beverly

3 has named Susan as the beneficiary of Beverly’s retirement and life insurance accounts;

4 Susan has not named Beverly as the beneficiary of such accounts only because she has

5 none. The couple shares joint responsibility for their utility and car insurance bills.

6

89. Beverly and Susan registered as domestic partners with the City of Tucson

7 in October 2005. If the State restricted family coverage to married employees and

8 allowed same-sex couples to marry, Beverly and Susan promptly would do so.

9

90. When family coverage for lesbian and gay State employees became

10 available in 2008, Beverly immediately enrolled Susan. The ability to obtain health

11 insurance for Susan was an enormous relief for the couple because Susan suffers from

12 acute asthma. She did not have health coverage when the couple moved to Arizona, and

13 had a life-threatening asthma attack during that time. Susan needs medical coverage to

14 manage the risk of similar attacks and regular doctor’s appointments to maintain her

15 prescriptions. The cost of this medical care is less expensive through Beverly’s family

16 coverage than if the couple had to pay out-of-pocket.

17

91. Susan also had a breast cancer scare in 2002. The health insurance she had

18 as a graduate student covered much of the cost of the biopsy and related care. Susan had a

19 similar episode in 2005 when she was uninsured. Although the condition again was

20 benign, that experience reinforced to Beverly and Susan how vulnerable they would be

21 without insurance coverage if Susan were to become seriously ill.

22

92. Susan is the primary caregiver for her 88-year-old mother, who has

23 dementia. The care of her mother precludes Susan from obtaining full-time employment.

24 Susan is instead self-employed as a freelance website designer, which allows her flex-

25 ibility to care for her mother, but does not provide access to health insurance coverage.

26

93. Beverly has researched private insurance options for Susan multiple times.

27 The private insurers Beverly contacted consistently have refused to insure Susan. A

28 private insurer recently informed Beverly that even if the insurer would cover Susan,

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!aaassseee     222: :000999-­-­-cccvvv-­-­-000222444000222-­-­-JJJWWWSSS              DDDooocccuuummmeeennnt t     111999              FFFi il leeeddd     000111/ /000777/ /111000              PPPaaagggeee     222111     ooof f     444777

1 which it would not guarantee, the cost would range from $700.00 a month for a $250.00

2 deductible, to $318.00 a month for a $3,000.00 deductible. Beverly’s current plan has no

3 deductible.

4

94. Susan previously qualified for medical coverage through AHCCCS but it is

5 not clear that she would qualify now. Beverly and Susan strongly prefer to maintain

6 family coverage through Beverly’s employment at U of A because the quality of coverage

7 and care are better, and because they take pride in contributing to the cost of their care as

8 Beverly currently does by paying a portion of the premium each month. Beverly is

9 insulted and frustrated that she must explore coverage for her life partner through the

10 State’s AHCCCS program when her heterosexual co-workers have a secure option for

11 protecting their immediate family members.

12

95. Beverly feels deeply rooted in Arizona, having lived in the state for 22

13 years. Prior to the change required by Section O, Beverly had not considered uprooting

14 her life and disrupting her commitment to U of A. But she now worries that she will have

15 no choice but to seek employment elsewhere if she cannot maintain her family coverage

16 for Susan.

17

6. Plaintiff Stephen Russell.

18

96. Plaintiff Stephen Russell (“Stephen”) is a professor, Fitch Nesbitt Endowed

19 Chair in Family and Consumer Sciences in the John & Doris Norton School of Family and

20 Consumer Sciences, and Director of the Frances McClelland Institute for Children, Youth,

21 & Families at U of A. Stephen was actively recruited by U of A, and has been a dedicated

22 and valuable employee since he joined the institution’s faculty in 2004. By June 2010,

23 Stephen will have secured more than $2 million in federal contracts, research grants, and

24 private gifts for U of A. Stephen’s fundraising not only supports his own research, but

25 also helps to support the work of graduate students and postdoctoral scholars. Stephen is

26 43 years old.

27

28

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1

97. Stephen has formed a committed relationship with his beloved partner,

2 William Scott Neeley (“Scott”), who is a self-employed architect and does not have health

3 insurance coverage through his employment. Scott is 54 years old.

4

98. Stephen and Scott met in 1993 and within a year were sharing a home as

5 loving, committed partners. After Stephen began teaching at the University of California,

6 Davis in 1999, the couple registered as domestic partners with the State of California as

7 soon as that status became available in 2000. The couple has assumed, through their state

8 domestic partnership registration, the same rights and responsibilities as spouses under

9 California law, including duties of financial support for each other.

10

99. Stephen and Scott celebrated their tenth anniversary on April 2, 2003 with

11 their friends and family from across the country, and have considered the event to have

12 been a public recognition of their life commitment. Each partner feels fortunate to have

13 been warmly embraced by the other’s family, and when both of Scott’s parents recently

14 passed away, Stephen was included as a full participant in the family grieving process.

15 Stephen and Scott would marry each other if the State permitted them to do so.

16

100. Stephen and Scott have been completely financially intertwined since they

17 began living together in 1994. As the income from Scott’s self-owned architecture

18 business fluctuated over the years, Stephen supported the couple with his academic salary

19 when Scott earned less. Every home the couple has owned during their relationship has

20 been jointly titled. They have joint bank accounts, and each has named the other as the

21 beneficiary of his retirement account. When the couple moved to Arizona, they retained

22 an attorney to prepare agreements to protect their relationship. Stephen and Scott have

23 named each other as the primary beneficiary in each of their wills and appointed each

24 other to make medical decisions in case of incapacity.

25

101. Stephen and Scott are raising a teenage boy who joined their family in

26 January of 2009 after suffering years of abuse and neglect.

27

102. In July of 2009, Scott discovered blood in his urine and needed urology care

28 and tests to assess the possibility of prostate cancer. Having undergone a number of tests,

-22-

!aaassseee     222: :000999-­-­-cccvvv-­-­-000222444000222-­-­-JJJWWWSSS              DDDooocccuuummmeeennnt t     111999              FFFi il leeeddd     000111/ /000777/ /111000              PPPaaagggeee     222333     ooof f     444777

1 Scott was relieved to learn that his symptoms have a benign cause, but the episode has

2 reminded the couple of how vulnerable they would be if Scott were to contract a serious

3 illness without health insurance coverage.

4

103. Stephen and Scott previously purchased an individual insurance policy for

5 Scott, but as of fall 2008, the couple paid approximately $500.00 a month for a plan that

6 offered only catastrophic coverage. Stephen accepted the position with U of A in

7 significant part because, when he was being recruited, the university actively was

8 pursuing family coverage for employees with a committed same-sex partner.

9

7. Plaintiff Deanna Pfleger.

10

104. Plaintiff Deanna Pfleger (“Deanna”), who is 43 years old, has been a

11 dedicated employee of Arizona’s Game and Fish Department for 17 years.

12

105. Deanna is a State peace officer who currently serves as a Wildlife Manager

13 III. She has a Bachelor of Science degree in Wildlife Biology, has had police officer

14 training and certification, and has received additional training and is commissioned as a

15 Game Ranger. Deanna’s certification authorizes her to enforce all Arizona laws,

16 including the criminal code, but her primary responsibility is to enforce Arizona’s game

17 and fish laws. Deanna also works as a wildlife biologist for the State. Her responsibilities

18 include, for example, patrolling waterways, ensuring that people hunt only within legal

19 limits, helping to execute search warrants, and monitoring species’ populations for

20 permitting recommendations.

21

106. Deanna’s job often requires her to work in isolation with her nearest

22 neighboring wardens at least an hour-and-a-half away. Both Deanna and her life partner

23 are aware that, if Deanna were to be injured during her work, she would not have

24 immediate assistance and would need back-up from another agency. Deanna faces

25 particular risks when working at night to prevent poaching and illegal hunting, and when

26 doing wildlife survey work by helicopter at low altitude and low speeds.

27

28

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1

107. Deanna is in a committed, loving relationship with Mia LaBarbara (“Mia”),

2 and the couple will celebrate their twentieth anniversary on Valentine’s Day in 2010. Mia

3 is 42 years old.

4

108. Deanna and Mia have two children, aged 10 and 7, that they planned for and

5 are raising together as equal co-parents.

6

109. Mia had worked for over 12 years as a Regional Interpretive Planner with

7 the Interpretive Education Department of the Arizona State Parks, until she was laid off in

8 October of 2009.

9

110. Deanna and Mia would marry each other if Arizona law permitted and hope

10 that they will be able to fulfill that dream within their lifetimes. Over their nearly 20 years

11 together, the couple has become completely interdependent emotionally and financially.

12 They have each nursed each other through illnesses, including surgery and Deanna’s

13 hospitalization after a car accident.

14

111. Deanna and Mia contribute jointly to their household expenses, and they

15 have supported each other financially. Deanna and Mia are both named on the title and

16 the mortgage for their home. They maintain a joint car insurance policy, and joint check-

17 ing and savings accounts. Each has named the other as the beneficiary of her retirement

18 account. Recognizing the risk inherent in her work, Deanna has purchased additional life

19 insurance to help provide for the family, and Mia is named as the primary beneficiary.

20 Deanna and Mia have prepared agreements and other legal documents to protect their

21 family, and they have each named the other as the primary beneficiary in their wills, and

22 as each other’s representative for health care decisions. Deanna, the biological mother of

23 the couple’s two children, has named Mia as the guardian of both children in her will.

24

112. Deanna enrolled Mia for family coverage through her employment in 2008,

25 and again during open enrollment in 2009, after the couple realized that covering Mia

26 under a “family plan” through Deanna’s employment did not cost any additional money

27 for their family or the State, while insuring Mia as an individual through her own

28 employment cost the State approximately $500.00 per month. Deanna and Mia will now

-24-

!aaassseee     222: :000999-­-­-cccvvv-­-­-000222444000222-­-­-JJJWWWSSS              DDDooocccuuummmeeennnt t     111999              FFFi il leeeddd     000111/ /000777/ /111000              PPPaaagggeee     222555     ooof f     444777

1 lose both forms of health insurance coverage for Mia because Mia has lost her job, and the

2 couple is being stripped of Deanna’ family coverage.

3

113. Mia is likely to have difficulty qualifying for coverage through AHCCCS

4 because it appears that her unemployment benefits exceed the income eligibility

5 requirements. Deanna has researched the cost of insuring Mia through a private health

6 insurance plan but has been informed that the least expensive plan, for a $64.00 monthly

7 premium, would come with a $14,000.00 deductible. The plan with the lowest deductible,

8 of $3,000.00, would cost the couple $171.00 per month, an amount this family of four can

9 ill afford now that Mia is unemployed. The family coverage Deanna receives through her

10 employment carries no deductible. Far more frightening for the couple, Deanna has

11 learned that Mia’s recent diagnosis of high blood pressure means that her application for

12 private insurance would not even be considered by at least some insurers.

13

114. The loss of family coverage for Mia comes at a particularly stressful time

14 for the couple. Mia began experiencing significant abdominal pain in spring of 2009, and

15 despite undergoing numerous tests, Mia has not received any diagnosis. While the pain

16 has been lessening, its intensity is unpredictable, and in July of 2009 Mia had an episode

17 so acute that she required treatment from an emergency room.

18

115. During the course of her tests, Mia’s doctor came to suspect that she may

19 have had ovarian cancer. Mia recently had surgery to remove the ovary and while the

20 doctors have since ruled out ovarian cancer, she will require regular monitoring to ensure

21 that her other ovary remains healthy. Deanna and Mia are particularly worried about this

22 development because Mia previously was diagnosed as being at heightened risk for colon

23 cancer. Mia requires a colonoscopy to monitor her condition every three to five years,

24 which would cost approximately $3,500.00 out-of-pocket, far more than the $50.00 co-

25 pay under Deanna’s family coverage.

26

116. Mia continues to have periodic abdominal pain, and Deanna and Mia find

27 the prospect of coping with that condition in addition to the need for periodic cancer

28

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!aaassseee     222: :000999-­-­-cccvvv-­-­-000222444000222-­-­-JJJWWWSSS              DDDooocccuuummmeeennnt t     111999              FFFi il leeeddd     000111/ /000777/ /111000              PPPaaagggeee     222666     ooof f     444777

1 screening and the possibility of a cancer diagnosis, all without family coverage, to be

2 extremely stressful and threatening medically, emotionally and financially.

3

117. Allowing Deanna to continue receiving family coverage through the family

4 plan would not cost the State any additional amount in insurance premiums. Deanna

5 already purchases a “family plan” that covers Deanna and her two biological children.

6 There is no additional cost, for either the employee or the State, to include an additional

7 family member to that plan.

8

8. Plaintiff Corey Seemiller.

9

118. Plaintiff Corey Seemiller (“Corey”) is the Program Director for Curricular

10 Leadership in the Center for Student Involvement & Leadership (“Center”) at the U of A,

11 and she has worked full-time for the university since July of 2002. Corey oversees U of

12 A’s classes in student leadership and the Arizona Blue Chip Program, a leadership

13 program at the Center that serves 450 students. Corey has a unique and specialized

14 knowledge of U of A’s leadership programming because she designed eleven of U of A’s

15 leadership courses for the Department of Educational Leadership while she completed her

16 doctoral degree at U of A, and the department is now relying on her specialized expertise

17 to help design a Minor in Leadership Studies. Corey is 36 years old.

18

119. Corey’s committed life partner is Karrie Mitchell (“Karrie”). Karrie is a

19 counselor at Pima Community College, and is 34 years old.

20

120. Corey and Karrie have been a loving, committed couple since June of 2002,

21 and have made a life-long pledge to care for and support each other. They registered as

22 domestic partners with the County of Pima on April 16, 2004, followed by a commitment

23 ceremony to celebrate with family and friends. Corey and Karrie would marry each other

24 if the State permitted them to do so.

25

121. Corey and Karrie have blended their financial assets and responsibilities and

26 are completely interdependent financially. The couple has jointly owned their home since

27 2003. They maintain joint checking and savings accounts. They treat all of their

28 household expenses as mutual. They have each purchased life insurance and named the

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!aaassseee     222: :000999-­-­-cccvvv-­-­-000222444000222-­-­-JJJWWWSSS              DDDooocccuuummmeeennnt t     111999              FFFi il leeeddd     000111/ /000777/ /111000              PPPaaagggeee     222777     ooof f     444777

1 other as the beneficiary. The couple has executed power of attorney forms authorizing

2 each other to make medical and financial decisions in the event of the other’s incapacity.

3

122. Corey and Karrie have a nine-month-old baby girl, K.S.M. The couple

4 planned every aspect of Karrie’s pregnancy together and they have equally parented

5 K.S.M. since she was born.

6

123. Karrie is the biological mother of K.S.M. Because Arizona’s statutes

7 currently do not permit a lesbian or gay co-parent to adopt a child without terminating the

8 existing legal parent’s rights, Corey is unable to secure her relationship to K.S.M. through

9 adoption. Corey and Karrie accordingly have taken additional life planning steps to

10 provide as much security as possible to their child, including executing a co-parenting

11 agreement and a power of attorney document that allows Corey to make decisions about

12 K.S.M.’s medical care and education, and creating a trust so that K.S.M. is financially

13 provided for in the event that either Corey or Karrie passes away.

14

124. When K.S.M. was born, the couple initially enrolled her to receive health

15 coverage through Karrie’s employment, but quickly realized that the $330.00 monthly

16 premium was unaffordable for them. Because Corey was allowed to provide family

17 coverage to the child of her qualifying domestic partner, Corey was able to enroll K.S.M.

18 for family coverage through U of A for a premium of $30.00 per month, which relieved

19 the couple of an enormous financial burden. To secure the coverage for K.S.M., Corey

20 had to submit an affidavit of domestic partnership and supporting documentation on the

21 same terms as other State employees seeking family coverage for a committed same-sex

22 life partner. Because Corey and Karrie continue to meet the eligibility criteria for family

23 coverage, K.S.M. remains eligible for family coverage as a child of Corey’s domestic

24 partner.

25

125. Corey and Karrie were extremely worried after H.B. 2013 was approved and

26 signed by Defendant Brewer that the designated October 1, 2009 effective date for Section

27 O would leave K.S.M. without health coverage unless they acted quickly to secure

28 alternative insurance. Before the Department announced that it would recognize

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1 November 24, 2009 as the effective date for H.B. 2013, the couple arranged coverage for

2 K.S.M. through Karrie’s employment based on the qualifying life event of K.S.M.’s

3 expected loss of insurance, and accordingly they did not re-enroll K.S.M. for family

4 coverage during Corey’s open enrollment period. Karrie was able to secure a reduced

5 premium rate of approximately $230.00 per month when she enrolled K.S.M. as her child,

6 but this is still significantly more than the $40.00 the couple would pay through the plan

7 Corey selected during the 2009 open enrollment period.

8

126. Absent another qualifying life event, Corey has lost the opportunity to re-

9 enroll K.S.M. for family coverage because she relied upon Section O’s stated effective

10 date of October 1, 2009, and took responsible steps to secure alternative coverage for

11 K.S.M.

12

127. These circumstances have placed Corey and her family under significant

13 stress that her heterosexual colleagues do not face because they can insure the qualifying

14 child of a spouse. While Corey previously has supplemented the couple’s income with

15 consulting work and adjunct teaching in the evenings, she felt pressed to take on many

16 more evening teaching duties to help pay for K.S.M.’s health insurance. Given Corey’s

17 full-time job at U of A, these additional duties are exhausting and deprive Corey of time

18 she otherwise would spend at home with her family.

19

9. Plaintiff Carrie Sperling.

20

128. Plaintiff Carrie Sperling (“Carrie”) is a Visiting Clinical Associate Professor

21 of Law at Arizona State University (“ASU”), where she has taught since 2007. Carrie is

22 43 years old.

23

129. Carrie’s life partner is Sue Shapcott (“Sue”), who is 40 years old. Sue is

24 self-employed as a golf instructor and does not have health insurance through her

25 employment. During the 2009 open enrollment period, Carrie enrolled Sue for family

26 coverage.

27

130. Carrie and Sue have been in a committed, loving relationship since 2006. In

28 May of 2008 they traveled to Great Britain, where Sue was born, and entered into a civil

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1 partnership that grants them the same rights and responsibilities accorded to spouses under

2 British law. Carrie and Sue solemnized their partnership before over two dozen of their

3 family and friends. Carrie and Sue would marry each other if Arizona law permitted.

4

131. Carrie and Sue have made mutual pledges to support each other emotionally

5 and financially. They own their Phoenix home as joint tenants with rights of survivorship,

6 have a joint mortgage, and both contribute to their household expenses. They have joint

7 bank accounts, and each has designated the other as the beneficiary of their life insurance.

8 Carrie and Sue have named each other as the primary beneficiary in their wills, and as

9 each other’s representative in their durable health care powers of attorney.

10

132. Carrie and Sue lived in Dallas, Texas before Carrie accepted her current

11 position with ASU. At the time Carrie accepted her current position, she knew the State

12 was pursuing family coverage for domestic partners. This was a significant factor in

13 Carrie’s decision to accept and to continue in the job, and the couple’s decision to move

14 away from the thriving business Sue had built in Dallas.

15

133. Sue has researched private insurance plan options and has confirmed that

16 the individual plans available on the market are more expensive. While Carrie pays

17 approximately $80.00 per month to insure both Carrie and Sue with a $1,200.00

18 deductible through Carrie’s employment, the couple would have to pay at least an

19 additional $122.00 per month for an individual plan for Sue with a $3,000.00 deductible.

20 This would be a frustrating burden for the couple after they sacrificed significant income

21 by leaving Sue’s business in Dallas so Carrie could accept her current position at ASU.

22

10. Plaintiff Leslie Kemp.

23

134. Plaintiff Leslie Kemp (“Leslie”) is a Marketing Coordinator at Northern

24 Arizona University (“NAU”). Leslie has worked for NAU since 2005. She is 39 years

25 old.

26

135. Leslie’s life partner is Jennifer Morris (“Jennifer”), who is 37 years old.

27

136. During the 2009 open enrollment period, Leslie enrolled Jennifer for family

28 coverage.

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1

137. Leslie and Jennifer have been a committed couple since 2004. They held a

2 commitment ceremony in 2005, attended by many friends and both of their families.

3 Leslie and Jennifer would marry each other if Arizona law permitted.

4

138. Leslie and Jennifer have combined their finances and exchanged promises to

5 provide for each other’s financial needs. They have named each other as the primary

6 beneficiary in their respective wills, and have designated each other to make medical

7 decisions in their durable health care powers of attorney. They own a home as joint

8 tenants with rights of survivorship and a joint mortgage, which they now rent to a tenant

9 having relocated closer to the NAU campus for Leslie’s job. The couple now jointly

10 leases an apartment. Leslie and Jennifer have joint bank accounts, own their car together,

11 and have joint home and car insurance policies. Leslie has named Jennifer as the

12 beneficiary of her life insurance policy.

13

139. Jennifer is a senior tour guide with a small jeep tour company in Sedona,

14 Arizona. Although Jennifer is eligible for health insurance through her employment, the

15 coverage is more expensive and inferior to what is available for her through Leslie’s

16 employment. Leslie currently contributes approximately $100.00 a month for family

17 insurance covering Leslie, Jennifer and their two-and-a-half-year-old son. Purchasing

18 insurance for Jennifer through Jennifer’s job would cost approximately $175.00 per month

19 with a $1,500.00 deductible, and the plan would not cover most doctor’s office visits.

20

140. With a young son, and Leslie expecting to give birth to a second son in early

21 2010, Leslie and Jennifer do not have the means to purchase the more expensive plan

22 available through Jennifer’s job. Without Leslie’s family coverage, they would have to

23 forego health insurance for Jennifer in order to save for the arrival of their second child.

24

C. No Adequate Governmental Interests Exist To Justify The State’s

Discriminatory Employment Compensation System.

25

26

141. Public and private employers who offer family coverage on

27 nondiscriminatory grounds to all employees achieve a number of economic and business

28

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1 advantages, including the ability to attract more talented and highly skilled employees,

2 decrease turnover, and improve employee morale and productivity.

3

142. In addition to the positive effects on recruitment and retention of excellent

4 employees, many employers offer nondiscriminatory family benefits as a core part of their

5 commitment to a diverse workforce. That the State has shared this interest in its role as an

6 employer is evidenced by former Governor Napolitano’s Executive Order No. 2003-22

7 prohibiting discrimination in State employment based on sexual orientation.

8

143. Providing equal family coverage to lesbian and gay State employees not

9 only fosters the important goal of diversity but allows major State employers to compete

10 for and retain talented, trained employees.

11

144. The costs of domestic partner benefits to employers generally are limited

12 because, among other reasons, the pool of lesbian and gay employees usually is very

13 small, and not all employees in same-sex relationships enroll for domestic partner

14 benefits.

15

145. Arizona’s total state budget for the 2008-2009 fiscal year was approximately

16 $9.9 billion. Alan Ecker, a spokesperson for the Department, has reported that the

17 elimination of family coverage for State employees’ unmarried partners will affect

18 approximately 800 employees and will save $3.3 million—or about 0.5%—of the State’s

19 annual employee health care budget of $650 million. This amounts to a state budget

20 savings of approximately 0.033%. Upon information and belief, State employees with a

21 committed same-sex life partner comprise a small fraction of the 800 employees receiving

22 benefits for an unmarried partner, meaning that family coverage for lesbian and gay State

23 employees with a same-sex life partner costs far less than the half-of-one-percent-of-

24 health-costs figure (or thirty-three-thousandths-of-one-percent-of-overall-state-costs

25 figure) attributable to unmarried domestic partners generally. In other words, offering this

26 important benefit to the small pool of lesbian and gay State employees who otherwise are

27 categorically barred from family coverage because they cannot marry causes only

28 negligible costs for the State.

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1

146. Upon information and belief, the minimal costs of offering family coverage

2 to lesbian and gay State employees is offset by the resulting reduced use of AHCCCS,

3 which is more costly on average to the State than allowing employees to share the cost of

4 their health insurance by paying a portion of the premium for family coverage.

5 Additionally, employees receiving family coverage for a same-sex life partner are taxed

6 by the State on the value of those benefits, unlike their heterosexual counterparts,

7 providing the State with additional income tax revenue.

8

147. Public employers in Arizona have confirmed the lack of disproportionate

9 costs of domestic partner health coverage, the related cost-savings, and the positive effects

10 on employee retention and positive morale. Municipal employers in Arizona now

11 offering family coverage to their lesbian and gay employees include Pima County and the

12 Cities of Phoenix, Tempe, Scottsdale, and Tucson. Nationally, this equal compensation

13 practice has been adopted by increasing numbers of public and private employers. At

14 least 18 states and the District of Columbia now offer family coverage to lesbian and gay

15 state employees. More than eighty percent of the Fortune 100 companies offer family

16 coverage to lesbian and gay employees, as do a majority of the Fortune 500 companies.

17

148. Many major private employers who compete with the State for talented,

18 skilled employees now offer family coverage to lesbian and gay employees. A

19 representative sampling of such companies includes American Express, Bank One, Bank

20 of America, Banner Health Systems, Costco Wholesale, Cox Communications, Gannett,

21 Hilton Hotels, Home Depot, Honeywell, IBM, Intel, Intuit, Marriott International,

22 Medtronic, Morgan Stanley, Motorola, Qwest, Raytheon, Sears, Target, Texas

23 Instruments, UPS, Walgreen’s and Wells Fargo. In addition to those national companies,

24 dozens of private employers headquartered in Arizona that compete directly with the State

25 for the most qualified employees offer family coverage to lesbian and gay employees.

26 Among the top ten universities participating in the Pacific10-Conference (a college

27 athletic conference that operates in the western United States), ASU and UA would be the

28 only two universities to not offer domestic partner benefits to lesbian and gay employees.

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1 Moreover, the top 10 universities ranked by U.S. News and World Report all offer

2 domestic partner benefits, as do all Ivy League schools.

3

149. Section O was adopted to withdraw equal treatment from lesbian and gay

4 State employees, including Plaintiffs, and to exclude such employees and to deem them

5 and their families unworthy of concern and protection based on their sexual orientation

6 and sex in relation to their respective life partner’s sex.

7

150. Although government may have a valid interest in cost containment, it may

8 not pursue that interest by making invidiously discriminatory distinctions between classes

9 of its citizens and offering valuable benefits to some, while selectively withholding those

10 benefits from others, such as Plaintiffs here, without adequate justification for that

11 differential treatment.

12

151. Although government may have a valid interest in preventing fraud in its

13 benefits programs, the State’s domestic partner benefits program has had rigorous

14 eligibility criteria that limit family coverage to employees in financially interdependent,

15 committed relationships. No disproportionate fraud exists to justify the State’s

16 discriminatory withdrawal of valuable family coverage from lesbian and gay employees

17 with a same-sex life partner while continuing such coverage for heterosexual employees

18 who marry.

19

152. The State’s explicit policy of discrimination inflicts significant harm upon

20 Plaintiffs, including depriving them of their constitutional right to equally respectful

21 treatment and protection, imposing financial deprivations and emotional distress, and

22 sending a strong message of stigma and devaluation of Plaintiffs, the State’s other lesbian

23 and gay employees and their families, all because of their sexual orientation and their sex

24 in relation to the sex of their committed life partner.

25

153. Employment benefits provided to employees routinely are valued at

26 between one-fifth and one-third of total compensation. Thus, family coverage for a

27 spouse or same-sex life partner is valuable financially as well as emotionally for most

28 employees. The State’s deliberate elimination of domestic partner benefits, while

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1 maintaining spousal benefits and denying its lesbian and gay employees any way to

2 qualify for family benefits, unlike their heterosexual counterparts, accordingly requires

3 those lesbian and gay employees to perform equal work for less compensation.

4

154. There is no legitimate, let alone compelling, governmental interest served by

5 denying lesbian and gay State employees, including Plaintiffs, equal compensation in the

6 form of family coverage.

7

FIRST CLAIM FOR RELIEF

8

Equal Protection on the Basis of Sexual Orientation and Sex

9

U.S. Const. Amend. XIV, 42 U.S.C. § 1983

10

155. Plaintiffs incorporate by reference and reallege paragraphs 1 to 154 of this

11 complaint.

12

156. Plaintiffs state this cause of action against Defendants in their official

13 capacities for purposes of seeking declaratory and injunctive relief.

14

157. The Fourteenth Amendment to the United States Constitution, enforceable

15 pursuant to 42 U.S.C. § 1983, provides that no state shall deny to any person the equal

16 protection of the laws. Defendants’ conduct violates Plaintiffs’ right to equal protection

17 of the laws, and specifically Plaintiffs’ right not to be denied equal protection on the basis

18 of sexual orientation or sex.

19

158. Defendants deny equal compensation to lesbian and gay State employees by

20 their withdrawal of domestic partner coverage, and by their categorical refusal to offer any

21 other way for employees to qualify a same-sex life partner within the State’s family health

22 insurance plans, with no constitutionally adequate reasons for this knowing and

23 intentional withdrawal and refusal, unlike Defendants’ treatment of their heterosexual

24 employees. Defendants’ conduct and omissions, and policies and practices in their

25 establishment and administration of the health benefits plans for State employees,

26 including in particular Defendants’ implementation of Section O, subjects Plaintiffs to

27 intentionally differential, adverse and inferior treatment because of Plaintiffs’ sexual

28

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1 orientation as lesbians and gay men and because of each Plaintiff’s sex in relation to the

2 sex of his or her committed life partner.

3

159. By exclusively conditioning the receipt of family coverage on the legal

4 relationship status of “spouse,” from which lesbian and gay State employees, including

5 Plaintiffs, categorically are excluded because of their sexual orientation and each one’s

6 sex in relation to the sex of his or her life partner, Section O and Defendants’ actions to

7 implement Section O discriminate against lesbian and gay employees, including the

8 Plaintiffs, both facially and as applied, based on Plaintiffs’ sexual orientation and sex.

9

160. All of Defendants’ acts or omissions and policies and practices alleged

10 herein were, and if not enjoined, will continue to be committed intentionally and

11 purposefully because of Plaintiffs’ sexual orientation and sex in relation to the sex of each

12 one’s committed life partner.

13

161. Plaintiffs are similarly situated in every relevant respect to the heterosexual

14 State employees who Defendants permit to qualify their different-sex life partners and

15 partners’ children for family coverage through marriage.

16

162. Defendants’ denial of equal compensation to lesbian and gay State

17 employees as a class by Defendants’ elimination of domestic partner benefits, and by

18 Defendants’ categorical refusal to allow State employees any means to qualify a same-sex

19 life partner or partner’s children for family coverage, reflects moral disapproval and

20 antipathy toward lesbians and gay men, including Plaintiffs, serves no legitimate

21 government interest and is, therefore, invalid under any form of constitutional scrutiny.

22

163. Defendants’ intentional stripping of family coverage from lesbian and gay

23 State employees, including Plaintiffs, and denial to that class of employees of any way to

24 qualify for family coverage for a same-sex life partner or partner’s children, purposefully

25 singles out a minority group that historically has suffered unjust and discriminatory

26 treatment in law and society based on group members’ sexual orientation and sex in

27 relation to the sex of each one’s committed life partner.

28

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1

164. Defendants’ categorical denial of equal compensation to Plaintiffs based on

2 their sexual orientation and sex in relation to the sex of each one’s committed life partner

3 subjects Defendants’ conduct to strict or at least heightened scrutiny, which Defendants’

4 conduct cannot withstand because Defendants’ conduct does not even serve any legitimate

5 governmental interests, let alone any important or compelling such interests, nor does it

6 serve any such interests in an adequately tailored manner.

7

165. All of Defendants’ acts or omissions and policies and practices alleged

8 herein were, and if not enjoined, will continue to be committed intentionally and

9 purposefully because of Plaintiffs’ sexual orientation and sex in relation to the sex of each

10 one’s committed life partner.

11

166. Defendant Brewer, through her own individual actions, has acted personally,

12 purposefully and intentionally to violate Plaintiffs’ rights to equal protection under the

13 Fourteenth Amendment to the United States Constitution. Defendant Brewer acted with

14 discriminatory purpose in approving Section O and did so because of Section O’s adverse

15 effects on lesbian and gay State employees, including the Plaintiffs, based on their sexual

16 orientation and sex in relation to the sex of each one’s committed life partner.

17

167. Defendant Brewer acted personally, purposefully and intentionally when she

18 reviewed and approved Section O by signing H.B. 2013, thereby knowingly and

19 deliberately effectuating that section’s purpose of limiting family coverage to heterosexual

20 employees, who can qualify if they have a different-sex spouse, and stripping lesbian and

21 gay State employees of any way to obtain family coverage.

22

168. Upon information and belief, Defendant Brewer has the duty and authority

23 to ensure that the Department implements Section O, and through her own individual

24 actions, has acted and, if not enjoined, will continue to act personally to violate Plaintiffs’

25 right to equal protection by implementing Section O to strip Plaintiffs discriminatorily of

26 access to family coverage for a committed same-sex life partner, thereby proximately

27 causing Plaintiffs’ injury.

28

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1

169. Defendant Brewer, having acted personally, purposefully and intentionally

2 to review and approve Section O by signing H.B. 2013, directly caused actions by others

3 to enforce and implement Section O which Defendant Brewer knew, or reasonably should

4 have known, would cause others to inflict these constitutional injuries upon Plaintiffs.

5 Upon information and belief, Defendant Brewer knowingly has refused to prevent

6 anticipated action by others who are charged to implement State law and policies under

7 her supervision, including Section O’s elimination of family coverage for Plaintiffs, is

8 culpable for her actions and inactions in her supervision and control of subordinates who

9 will unconstitutionally deprive Plaintiffs of family coverage, has caused and acquiesced in

10 this constitutional deprivation to be effectuated by her subordinates, and has engaged in

11 conduct demonstrating a reckless and callous indifference to the constitutional rights of

12 Plaintiffs.

13

170. If not enjoined, Defendant Raber, through his own individual actions, will

14 act personally to violate Plaintiffs’ rights to equal protection under the Fourteenth

15 Amendment to the United States Constitution by implementing and directing subordinates

16 to implement Section O to discriminatorily strip Plaintiffs of access to family coverage,

17 thereby proximately causing them injury. Defendant Raber will act personally and with

18 discriminatory purpose and intent in enforcing Section O because of Section O’s adverse

19 effects on lesbian and gay State employees, including Plaintiffs, based on each Plaintiff’s

20 sexual orientation and sex in relation to the sex of his or her committed life partner.

21

171. Defendant Raber has direct and personal responsibility for the direction,

22 operation and control of the Department, and is responsible to the Governor for the

23 direction, control and operation of the Department, which includes formulating plans and

24 programs, and making contracts, to implement employment policies required by statute,

25 such as and specifically including Section O. In this capacity, unless enjoined, Defendant

26 Raber will be personally involved in decisions and actions that will violate Plaintiffs’ right

27 to equal protection by implementing Section O and discriminatorily stripping Plaintiffs of

28 family coverage, thereby proximately causing them injury.

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1

172. Defendant Raber, upon acting personally, purposefully and intentionally to

2 enforce Section O, has or will set in motion acts by others to enforce and implement

3 Section O which Defendant Raber knows, or reasonably should know, will cause others to

4 inflict these constitutional injuries upon the Plaintiffs. Upon information and belief,

5 Defendant Raber knowingly has refused to prevent anticipated action by others under his

6 supervision to implement Section O, is culpable for his actions and inactions in his

7 supervision and control of subordinates who are charged to implement Section O, has

8 acquiesced in this constitutional deprivation to be effectuated by his purposeful actions

9 and those of his subordinates, and has engaged in conduct demonstrating a reckless and

10 callous indifference to the constitutional rights of Plaintiffs to be treated equally in their

11 compensation, including an equal opportunity to qualify immediate family members for

12 health coverage.

13

173. If not enjoined, Defendant Peckardt, through her own individual actions,

14 will act personally to violate Plaintiffs’ rights to equal protection under the Fourteenth

15 Amendment to the United States Constitution by implementing and directing subordinates

16 to implement Section O to discriminatorily strip Plaintiffs of access to family coverage,

17 thereby proximately causing them injury. Defendant Peckardt will act personally and

18 with discriminatory purpose and intent in enforcing Section O because of Section O’s

19 adverse effects on lesbian and gay State employees, including Plaintiffs, based on each

20 Plaintiff’s sexual orientation and sex in relation to the sex of his or her committed life

21 partner.

22

174. Defendant Peckardt plays a direct, personal and leading role in determining

23 the structure of, and eligibility for, the State’s health benefits plans. Defendant Peckardt

24 led the Department’s transition from fully insured to self-insured health benefits plans;

25 established the State’s employee portal providing access to human resources information;

26 and oversees the State’s Human Resources Information Solution, an integrated benefits,

27 payroll and human resources system. Upon information and belief, these and Defendant

28 Peckardt’s other responsibilities require that, unless enjoined, Defendant Peckardt

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1 necessarily will be involved personally in decisions and actions that will violate Plaintiffs’

2 right to equal protection by implementing Section O and discriminatorily stripping

3 Plaintiffs of family coverage, thereby proximately causing them injury.

4

175. Defendant Peckardt, upon acting personally, purposefully and intentionally

5 to enforce Section O, has or will set in motion acts by others to enforce and implement

6 Section O which Defendant Peckardt knows, or reasonably should know, will cause others

7 to inflict these constitutional injuries upon Plaintiffs. Upon information and belief,

8 Defendant Peckardt knowingly has refused to prevent anticipated action by others under

9 her supervision to implement Section O, is culpable for her actions and inactions in her

10 supervision and control of subordinates who are charged to implement Section O, has

11 acquiesced in this constitutional deprivation to be effectuated by her purposeful actions

12 and those of her subordinates, and has engaged in conduct demonstrating a reckless and

13 callous indifference to Plaintiffs’ constitutional rights to be treated equally in their

14 compensation, which must include an equal opportunity to qualify immediate family

15 members for health coverage.

16

176. If not enjoined, Defendant Hamilton, through his own individual actions,

17 will act personally to violate Plaintiffs’ rights to equal protection under the Fourteenth

18 Amendment to the United States Constitution by implementing and directing subordinates

19 to implement Section O to discriminatorily strip Plaintiffs of access to family coverage,

20 thereby proximately causing them injury. Defendant Hamilton will act personally and

21 with discriminatory purpose and intent in enforcing Section O because of Section O’s

22 adverse effects on lesbian and gay State employees, including Plaintiffs, based on each

23 Plaintiff’s sexual orientation and sex in relation to the sex of his or her committed life

24 partner.

25

177. As Assistant Director, Defendant Hamilton is the Plan Administrator for the

26 State, which requires that he manage the group plans through which $750 million in

27 health, dental, life, disability and vision insurance benefits are provided to approximately

28 140,000 State employees, retirees, and their dependents. Upon information and belief,

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1 these and Defendant Hamilton’s other responsibilities require that, unless enjoined,

2 Defendant Hamilton necessarily will be involved personally in decisions and actions that

3 will violate Plaintiffs’ right to equal protection by implementing Section O and

4 discriminatorily stripping Plaintiffs of family coverage, thereby proximately causing them

5 injury.

6

178. Defendant Hamilton, upon acting personally, purposefully and intentionally

7 to enforce Section O, has or will set in motion acts by others to enforce and implement

8 Section O which Defendant Hamilton knows, or reasonably should know, will cause

9 others to inflict these constitutional injuries upon Plaintiffs. Upon information and belief,

10 Defendant Hamilton knowingly has refused to prevent anticipated action by others under

11 his supervision to implement Section O, is culpable for his actions and inactions in his

12 supervision and control of subordinates who are charged to implement Section O, has

13 acquiesced in this constitutional deprivation to be effectuated by his purposeful actions

14 and those of his subordinates, and has engaged in conduct demonstrating a reckless and

15 callous indifference to Plaintiffs’ constitutional rights to be treated equally in their

16 compensation, which must include an equal opportunity to qualify immediate family

17 members for health coverage.

18

179. Upon information and belief, Does 1 through 100 are in some manner

19 responsible and culpable for Plaintiffs’ injuries, and if not enjoined will act personally to

20 violate Plaintiffs’ rights to equal protection under the Fourteenth Amendment to the

21 United States Constitution.

22

180. Section O’s categorical denial of equal compensation in the form of family

23 coverage for lesbian and gay State employees with a committed same-sex life partner, and

24 Defendants’ conduct and omissions and policies and practices to effectuate Section O’s

25 withdrawal of this coverage from this class of State employees, impairs Plaintiffs’

26 protected liberty interest in having an intimate relationship with another consenting adult

27 as part of each Plaintiff’s private life on the discriminatory basis of Plaintiffs’ sexual

28 orientation and sex with respect to the sex of each one’s life partner. Defendants have

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1 previously and are now discriminating against lesbian and gay State employees, including

2 Plaintiffs, based on sexual orientation with respect to the exercise of Plaintiffs’

3 fundamental rights. Discriminatory treatment based on Plaintiffs’ sexual orientation and

4 sex, and with respect to Plaintiffs’ exercise of fundamental rights, subjects Defendants’

5 conduct to strict or at least heightened scrutiny, which Defendants’ conduct cannot

6 withstand.

7

181. The categorical denial of equal compensation in the form of family coverage

8 to lesbian and gay State employees with a committed same-sex life partner violates the

9 Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

10 Defendants have been and are acting under color of state law at all relevant times in their

11 implementation of Section O and their resulting and purposeful violation of Plaintiffs’

12 constitutional rights. Defendants’ actions and omissions, and practices and policies, both

13 facially and as applied to Plaintiffs, violate Plaintiffs’ clearly established constitutional

14 rights, of which a reasonable person would have known, to equal treatment without regard

15 to sexual orientation or sex, under the Fourteenth Amendment to the United States

16 Constitution.

17

SECOND CLAIM FOR RELIEF

18

Substantive Due Process

19

U.S. Const. Amend. XIV, 42 U.S.C. § 1983

20

182. Plaintiffs incorporate by reference and reallege paragraphs 1 to 181 of this

21 complaint.

22

183. Plaintiffs state this cause of action against Defendants in their official

23 capacities for purposes of seeking declaratory and injunctive relief.

24

184. The Fourteenth Amendment to the United States Constitution, enforceable

25 pursuant to 42 U.S.C. § 1983, provides that no state shall deprive any person of life,

26 liberty, or property without due process of law. The above-described conduct by

27 Defendants infringes upon Plaintiffs’ fundamental rights and protected liberty interests,

28 and in so doing violates Plaintiffs’ right not to be deprived of substantive due process.

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1

185. The Fourteenth Amendment’s Due Process Clause has a substantive

2 component that protects against government interference with fundamental rights and

3 protected liberty interests. Each Plaintiff has a protected, fundamental right and liberty

4 interest in his or her private intimate conduct and family relationship with his or her

5 committed same-sex life partner.

6

186. The categorical denial of equal compensation in the form of family coverage

7 to lesbian and gay State employees with a committed same-sex life partner, and

8 Defendants’ conduct and omissions, and policies and practices in connection therewith,

9 impermissibly infringe upon, intrude upon, and subject Plaintiffs to punishment and

10 penalty based upon Plaintiffs’ exercise of their fundamental right and protected liberty

11 interest without compelling, substantial or otherwise sufficient reason, or adequate

12 tailoring, in violation of Plaintiffs’ rights under the Due Process Clause of the Fourteenth

13 Amendment.

14

187. The categorical denial of equal compensation in the form of family coverage

15 for lesbian and gay State employees with a committed same-sex life partner, and

16 Defendants’ conduct and omissions, and policies and practices in connection therewith,

17 select for disfavored treatment lesbian and gay State employees who exercise this

18 fundamental right and liberty interest with a same-sex life partner, and provide favored

19 treatment to heterosexual employees who may obtain greater compensation by marrying a

20 different-sex life partner, impermissibly burdening and infringing upon Plaintiffs’ exercise

21 of their protected rights. There is no compelling, important, legitimate or otherwise

22 adequate state interest to justify this intrusion by Defendants into the personal and private

23 lives of Plaintiffs, and this burdening of their exercise of fundamental rights and

24 enjoyment of protected liberty interests therein, and Defendants’ actions and omissions

25 and policies and practices in this regard are arbitrary, irrational and indefensible.

26

188. The discriminatory denial of equal compensation in the form of family

27 coverage for lesbian and gay State employees with a committed same-sex life partner, and

28 Defendants’ conduct and omissions, and policies and practices in connection therewith, do

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1 not satisfy applicable standards for the infringement of Plaintiffs’ fundamental rights and

2 liberty interests protected by the Due Process Clause of the Fourteenth Amendment

3 because they are not supported by, do not significantly further, and are not necessary to,

4 any legitimate or important, let alone compelling, governmental interests. As described

5 above, the legitimate goal of government cost-savings may not be pursued by selectively

6 and invidiously subjecting one group of public employees to unequal treatment based on

7 an unjustifiable classification, and there are no disproportionate costs or administrative

8 burdens involved in providing equal family coverage which explain or justify elimination

9 of this portion of Plaintiffs’ employment compensation and that of other lesbian and gay

10 State employees.

11

189. As alleged above, Defendants’ conduct and omissions and policies and

12 practices of selecting for disfavored treatment lesbian and gay State employees who

13 exercise their protected right to form and maintain an intimate family relationship with a

14 same-sex partner were intentional and purposeful, and undertaken to effectuate Section

15 O’s purpose of encouraging heterosexual relationships and discouraging same-sex

16 relationships.

17

190. Upon information and belief, Does 1 through 100 are in some manner

18 responsible and culpable for Plaintiffs’ injuries, and if not enjoined will act personally to

19 violate Plaintiffs’ rights to substantive due process under the Fourteenth Amendment to

20 the United States Constitution.

21

191. The discriminatory denial of equal compensation in the form of family

22 coverage for lesbian and gay State employees with a committed same-sex life partner

23 violates the Due Process Clause of the Fourteenth Amendment to the United States

24 Constitution. Defendants have been and are acting under color of state law at all relevant

25 times in their implementation of Section O and their resulting and purposeful violation of

26 Plaintiffs’ constitutional rights.

27

28

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1

DECLARATORY AND INJUNCTIVE RELIEF

2

28 U.S.C. § 2201, Federal Rules of Civil Procedure, Rules 57 and 65

3

192. Plaintiffs incorporate by reference and reallege paragraphs 1 to 191 of this

4 complaint.

5

193. This case presents an actual case or controversy because there is an existing,

6 ongoing, real and substantial controversy between Plaintiffs and Defendants, who have

7 adverse interests. This controversy is sufficiently immediate, substantial and real to

8 warrant the issuance of a declaratory judgment because Plaintiffs will be stripped of

9 family coverage when the law is enforced by Defendants.

10

194. This case is ripe for consideration because it presents issues suitable for an

11 immediate and definitive determination of the legal rights of the parties in this adversarial

12 proceeding, and Plaintiffs will each be subjected to irreparable injury and significant

13 hardship if this dispute is not heard before Plaintiffs’ family coverage is eliminated.

14

195. Plaintiffs’ claims are not speculative or hypothetical, but rather involve the

15 validity of a statute that was approved and put into force by Defendant Brewer; will be

16 implemented and enforced by Defendants Brewer, Raber, Peckardt, Hamilton and Does 1

17 through 100; will apply to all lesbian and gay State employees with a committed same-sex

18 partner and each Plaintiff; will control each Plaintiff’s ability to continue receiving family

19 coverage for his or her committed same-sex life partner; and will deprive Plaintiffs of the

20 constitutional rights pleaded herein.

21

196. The injury Plaintiffs will suffer if Section O were enforced is real,

22 immediate, actual, concrete and particularized and is not just threatened but certain. No

23 further events need take place to determine that H.B. 2013 will take effect on October 1,

24 2010. Defendants Brewer’s, Raber’s, Peckardt’s, and Hamilton’s and Does 1 though

25 100’s direct and personal involvement in enforcing Section O have and will proximately

26 cause Plaintiffs’ irreparable injuries.

27

28

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1

197. Plaintiffs seek permanent injunctive relief to protect their constitutional

2 rights and avoid the injuries described above. A favorable decision enjoining Defendants

3 would redress and prevent the irreparable injuries to Plaintiffs’ identified herein.

4

198. The irreparable injuries Plaintiffs will suffer absent injunctive relief have no

5 adequate remedy at law or in equity. An injunction is the only way of adequately

6 protecting Plaintiffs from harm because no legal or equitable remedy could effectively

7 cure or compensate for the invasion of Plaintiffs’ constitutional rights, the bodily harm

8 Plaintiffs’ same-sex life partners or partner’s child will suffer in the absence of family

9 coverage to address their urgent, ongoing health needs, and the emotional harms of

10 anxiety about family members and of government-imposed rejection and exclusion of

11 one’s family.

12

199. The burden on the State of maintaining family coverage for its lesbian and

13 gay employees will be minor, given the small number of such employees who are eligible

14 and who have enrolled for family coverage, and the negligible cost of providing the

15 family coverage, whereas the hardship for Plaintiffs of going without access to this

16 insurance coverage is extreme, and subjects Plaintiffs to enormous financial hardship and

17 risk of potential catastrophe in the event of a partner’s serious illness. The balance of

18 hardships thus tips strongly in favor of Plaintiffs.

19

PRAYER FOR RELIEF

20

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:

21

A. Declaring that the provisions and enforcement by Defendants of the portion

22 of A.R.S. § 38-651(O) that limits eligibility for family coverage to State employees that

23 have a “dependent” who is a “spouse,” and by extension, a spouse’s child, to the exclusion

24 of lesbian and gay State employees with a committed same-sex life partner, violates

25 Plaintiffs’ rights under:

26

1. the Equal Protection Clause of the Fourteenth Amendment of the

27

United States Constitution; and

28

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1

2. the Due Process Clause of the Fourteenth Amendment of the United

2

States Constitution;

3

B. Permanently enjoining enforcement by Defendants of the portion of A.R.S.

4 § 38-651(O) that limits eligibility for family coverage to State employees that have a

5 “dependent” who is a “spouse,” and by extension, a spouse’s child, to the exclusion of

6 lesbian and gay State employees with a same-sex life partner, including Plaintiffs;

7

C. Requiring Defendants in their official capacities to maintain family

8 coverage, on terms equal to the family coverage Defendants offer to heterosexual State

9 employees who marry a different-sex life partner, for Plaintiffs and other qualifying

10 lesbian and gay State employees with a committed same-sex life partner who satisfy the

11 relevant eligibility criteria specified in Ariz. Admin. Code § R2-5-101;

12

D. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees

13 pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and

14

E. Granting such other and further relief as the Court deems just and proper.

15 Dated: January 7, 2010 16

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

17

Jennifer C. Pizer

Tara L. Borelli 18

19

PERKINS COIE BROWN & BAIN P.A.

20

By: s/ James E. Barton II

21

Daniel C. Barr

Rhonda L. Barnes

22

James E. Barton II

2901 N. Central Avenue, Suite 2000

23

Phoenix, Arizona 85012-2788

24 Attorneys for Plaintiffs

25

Tracy Collins, Keith B. Humphrey, Joseph

R. Diaz, Judith McDaniel, Beverly

26

Seckinger, Stephen Russell, Deanna

27

Pfleger, Corey Seemiller, Carrie Sperling

and Leslie Kemp

28

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on January 7, 2010, I electronically transmitted the

3 attached documents to the Clerk’s Office using the CM/ECF System for filing and

4 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

5

Alisa Ann Blandford

alisa.blandford@azag.gov 6

Charles Arnold Grube

7

charles.grube@azag.gov

8

Kathryn J Winters

9

kathryn.winters@azag.gov

10

I hereby certify that on January 7, 2010, I served the attached document by

11 first class mail on Judge John W. Sedwick, United States District Court of Arizona, 401

12 West Washington Street, Phoenix, Arizona 85003-2118.

13 14 17525167.1

s/ Janet Roe

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-47-

 
 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

TRACY COLLINS; KEITH B.

)

HUMPHREY; JOSEPH R. DIAZ;

)

JUDITH MCDANIEL; BEVERLY

)

SECKINGER; STEPHEN RUSSELL; )

DEANNA PFLEGER; COREY

)

SEEMILLER; CARRIE SPERLING; )

AND LESLIE KEMP,

)

)

Plaintiffs,

)

)

vs.

)

)

JANICE K. BREWER, in her official )

capacity as Governor of the State )

of Arizona; DAVID RABER, in his )

official capacity as Interim Director )

of the Arizona Department of

)

Administration and Personnel Board; )

KATHY PECKHARDT, in her official )

capacity as Director of Human

)

Resources for the Arizona

)

Department of Administration and )

Personnel Board,

)

)

Defendants.

)

)

2:09-cv-02402 JWS ORDER AND OPINION [Re: Motions at Docket 22 and 31]

I. MOTIONS PRESENTED

At docket 22, defendants Governor Janice K. Brewer, David Raber, and Kathy

Peckhardt (collectively “the State”) move to dismiss the amended complaint filed by

plaintiffs Tracy Collins, Keith B. Humphrey, Joseph R. Diaz, Judith McDaniel,1 Beverly
Seckinger, Stephen Russell, Deanna Pfleger, Corey Seemiller, Carrie Sperling, and
Leslie Kemp (collectively “plaintiffs”). At docket 23, plaintiffs oppose the motion. The
State replies at docket 27. In addition, plaintiffs have filed a motion for preliminary
injunction at docket 31. At docket 40, the State opposes the motion. Plaintiffs reply at
docket 41. Oral argument on both motions was heard on June 28, 2010.
II. BACKGROUND
As part of the State’s personnel compensation system, the State provides
subsidized health care benefits to eligible employees and their dependents. The
Arizona Administrative Code currently defines dependents eligible to participate in the
health benefit plan as an “employee-member’s spouse as provided by law or domestic partner,” and “[e]ach child,”2 which is defined as including a “natural child, adopted child,
or stepchild of the employee-member, retiree, former elected official, or domestic partner.”3
Section R2-5-101(22) of the Arizona Administrative Code defines “domestic
partner” as a “person of the same or opposite gender who:”
a. Shares the employee's or retiree's permanent residence; b. Has resided with the employee or retiree continuously for at least 12 consecutive months before filing an application for benefits and is expected to continue to reside with the employee or retiree indefinitely as evidenced by an affidavit filed at time of enrollment;
1Plaintiff Judith McDaniel’s claims recently became moot due to her obtaining new employment which provides family health insurance for her domestic partner. Doc. 31 at p. 2 n.1.
2Ariz. Admin. Code § R2-5-416(C). 3Ariz. Admin. Code § R2-5-101(10).
-2-

c. Has not signed a declaration or affidavit of domestic partnership with any other person and has not had another domestic partner within the 12 months before filing an application for benefits; d. Does not have any other domestic partner or spouse of the same or opposite sex; e. Is not currently legally married to anyone or legally separated from anyone else; f. Is not a blood relative any closer than would prohibit marriage in Arizona; g. Was mentally competent to consent to contract when the domestic partnership began; h. Is not acting under fraud or duress in accepting benefits; i. Is at least 18 years of age; and j. Is financially interdependent with the employee or retiree in at least three of the following ways:
i. Having a joint mortgage, joint property tax identification, or joint tenancy on a residential lease; ii. Holding one or more credit or bank accounts jointly, such as a checking account, in both names; iii. Assuming joint liabilities; iv. Having joint ownership of significant property, such as real estate, a vehicle, or a boat; v. Naming the partner as beneficiary on the employee's life insurance, under the employee's will, or employee's retirement annuities and being named by the partner as beneficiary of the partner's life insurance, under the partner's will, or the partner's retirement annuities; and vi. Each agreeing in writing to assume financial responsibility for the welfare of the other, such as durable power of attorney; or vii. Other proof of financial interdependence as approved by the Director.
Currently, state employees in homosexual domestic partnerships may obtain the
same coverage bestowed upon married heterosexual couples, provided the lesbian or
gay employee and her or his partner can satisfy the above criteria.4 The State provides
approximately $750 million in health, dental, life disability, and vision benefits to
4Ariz. Admin. Code § R2-5-101.
-3-

approximately 140,000 State employees, retirees, and their dependents.5 Such employment benefits are commonly valued “at between one-fifth and one-third of total compensation.”6 Approximately 800 of the 140,000 participating State employees receive benefits for a qualifying domestic partner. A small fraction of those 800 employees receive benefits for a same-sex domestic partner.7
On August 20, 2009, the Arizona House of Representatives transmitted House Bill (“H.B.”) 2013 to defendant Brewer for review, consideration, and approval or rejection in her capacity as Arizona Governor. H.B. 2013 amends A.R.S. § 38-651, which authorizes the Department of Administration to expend funds on health and accident insurance for State employees and their eligible dependents. The amendment added a new section, Section O, which provides that “[f]or the purposes of this section, beginning October 1, 2009, ‘dependent’ means a spouse under the laws of this state, a child who is under nineteen years of age or a child who is under twenty-three years of age and who is a full-time student.”8
Section O eliminates family coverage for non-spouse domestic partners, whether they are of the same or different sex. Heterosexual domestic partners may continue to receive subsidized family health coverage by getting married. Same-sex couples are precluded from obtaining coverage because Section O limits coverage to “spouses” under the laws of Arizona. The Arizona Constitution prevents same-sex couples from
5Doc. 19 at p. 7. 6Id. at p. 33. 7Id. at p. 31. 8A.R.S. § 38-651(O).
-4-

marrying and prohibits the State from honoring a civil marriage entered by a same-sex couple in another jurisdiction.9 Similarly, the Arizona Revised Statutes limit marriage to “a male person and a female person.”10 Governor Brewer signed H.B. 2013 on September 4, 2009.
Section O specified an intended effective date of October 1, 2009. On September 25, 2009, the Department of Administration announced that it would recognize November 24, 2009 as the effective date of the statute. On October 9, 2009, the Department posted another announcement indicating that, based on legal advice from the Office of the Attorney General, the definition of “dependent” for the State insurance plan year beginning October 1, 2009 would not be affected by H.B. 2013 so as not to impair the contractual expectations of State employees. On July 22, 2010, the State filed a notice indicating that the State’s current benefit plan, including domestic partner coverage, will be extended through December 31, 2010.11 The definition of “dependent” currently in place will remain effective through December 31, 2010; the new definition of “dependent” in H.B. 2013 will go into effect on January 1, 2011.
On January 7, 2010, plaintiffs filed an amended complaint against the State seeking declaratory and injunctive relief.12 Plaintiffs’ amended complaint alleges in part,
The selective withdrawal of family coverage from lesbian and gay State employees - while leaving family coverage intact for heterosexual State employees with a legally recognized spouse - will deny each Plaintiff equal
9Ariz. Const. Art. 30 § 1. 10A.R.S. § 25-125. 11Doc. 46. 12Doc. 19.
-5-

compensation for equal work and discriminatorily inflict upon each Plaintiff and his or her family members anxiety, stress, risk of untreated or inadequately treated health problems, and potentially ruinous financial burdens.13 Plaintiffs’ complaint requests the court to enter judgment declaring that the portion of A.R.S. § 38-651(O) that limits eligibility for family coverage to an employee-member’s “spouse” or a spouse’s child, “to the exclusion of lesbian and gay State employees with a committed same-sex life partner” violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Plaintiffs’ complaint further requests the court to permanently enjoin defendants’ enforcement of the portion of A.R.S. § 38-651(O) that limits eligibility to an employeemember’s spouse and spouse’s child to the exclusion of lesbian and gay State employees with a same-sex life partner. In addition, plaintiffs request an order requiring defendants to “maintain family coverage, on terms equal to the family coverage [d]efendants offer to heterosexual State employees who marry a different-sex life partner, for [p]laintiffs and other qualifying lesbian and gay State employees with a committed same-sex life partner who satisfy the relevant eligibility criteria specified in the Ariz. Admin. Code § R2-5-101.”14 All of the plaintiffs are highly skilled State employees whose job duties are equivalent to the duties of their heterosexual colleagues.15 Each of the nine plaintiffs and his or her domestic partner have enjoyed a long-term, committed, and financially
13Doc. 19 at p. 3. 14Id. at p. 46. 15Id. at p. 12.
-6-

interdependent relationship and would marry if Arizona law permitted same-sex couples to marry.16 Each plaintiff enrolled her or his domestic partner and/or domestic partner’s qualifying children for family coverage during the 2008 or 2009 open enrollment period, and each plaintiff and her or his domestic partner or partner’s children met the eligibility requirements for coverage at the time of enrollment and continue to meet those requirements.17 As result of the adoption and enforcement of Section O, each named plaintiff will lose health insurance coverage for his or her domestic partner, and/or domestic partner’s children on October 1, 2010.
III. STANDARD OF REVIEW A motion to dismiss for failure to state a claim made pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint.18 In reviewing a Rule 12(b)(6) motion to dismiss, “[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party.”19 “Conclusory allegations of law, however, are insufficient to defeat a motion to dismiss.”20 A dismissal for failure to state a claim can be based on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”21 To avoid dismissal under Rule 12(b)(6), plaintiffs’ complaint must aver
16Id. at pp. 13-30. 17Id. at p. 10. 18De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). 19Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997). 20Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). 21Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
-7-

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”22
IV. DISCUSSION A. Motion to Dismiss
1. Equal Protection Claim The State first argues that plaintiffs’ complaint fails to state a claim under the Equal Protection Clause of the Fourteenth Amendment because Section O passes constitutional muster under rational basis review. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.”23 The first step in equal protection analysis, therefore, is to identify the classification of groups within the statute or regulations in question.24 “To accomplish this, a plaintiff can show that the law is applied in a discriminatory manner or imposes different burdens on different classes of people.”25 The State contends that Section O is a neutral policy that treats all unmarried employees equally. Plaintiffs argue that “Section O deliberately classifies State employees into two groups - heterosexual employees who are offered a way to qualify
22al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citation omitted)).
23City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quotation omitted).
24Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 589 (9th Cir. 2008). 25Id. (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir.1995)).
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for family health insurance, and lesbian and gay State employees who are deprived of any way to qualify for those benefits,”26 and as such are denied equal compensation for equal work. Section O, when read together with Arizona Constitution Article 30 § 1, treats unmarried heterosexual State employees differently than unmarried homosexual employees. Heterosexual domestic partners may become eligible for family coverage under the State plan by marrying. Because employees involved in same-sex partnerships do not have the same right to marry as their heterosexual counterparts, Section O has the effect of completely barring lesbians and gays from receiving family benefits. Consequently, the spousal limitation in Section O burdens State employees with same-sex domestic partners more than State employees with opposite-sex domestic partners.
While Section O is not discriminatory on its face, as applied Section O “unquestionably imposes different treatment on the basis of sexual orientation,”27 and makes benefits available on terms that are a legal impossibility for gay and lesbian couples. As a result, Section O denies lesbian and gay State employees in a qualifying domestic partnership a valuable form of compensation on the basis of sexual orientation. As early as 1990, the Ninth Circuit recognized that “state employees who treat individuals differently on the basis of their sexual orientation violate the constitutional guarantee of equal protection.”28 Because the spousal limitation in
26Doc. 23 at p. 4. 27In re Levenson, 560 F.3d 1145, 1147 (9th Cir. 2009) (quoting In re Marriage Cases, 183 P.3d 384, 441 (Cal. 2008)). 28Flores v. Morgan Hill Unified School Dist., 324 F.3d 1130, 1137 (9th Cir. 2003) (quoting High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir.
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Section O imposes different burdens on the basis of sexual orientation, it is subject to scrutiny under the Equal Protection Clause.
“The basic principles governing the application of the Equal Protection Clause of the Fourteenth Amendment are familiar.”29 In applying the Equal Protection Clause, the Supreme Court “has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of people in different ways.”30 The Equal Protection Clause does, however, deny States “the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute.”31 “A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’”32 Whether a statute “bears a rational relationship to a legitimate state interest is primarily an objective inquiry.”33
Plaintiffs contend that some form of heightened scrutiny should apply to an evaluation of Section O’s constitutionality, because it treats State employees differently on the basis of their sexual orientation; because homosexuals have experienced a
1990)). 29Eisenstadt v. Baird, 405 U.S. 438, 446 (1972) (citing Reed v. Reed, 404 U.S. 71
(1971)). 30Reed, 404 U.S. at 75. 31Id. at 75-76. 32Id. at 76 (quoting Royster Guano Co. v. Virginia, 253 U.S.412, 415 (1920)). 33Perry v. Schwarzenegger, 591 F.3d 1147, 1165 (9th Cir. 2010).
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history of purposeful unequal treatment and are politically vulnerable; and because sexual orientation is an immutable characteristic which does not bear upon a person’s ability to contribute to society as a productive employee. Some form of heightened scrutiny might apply to plaintiffs’ claims, but it is unnecessary to decide whether or which type of heightened scrutiny might apply to plaintiffs’ claims because plaintiffs have averred in their complaint sufficient factual matter, accepted as true, to state an equal protection claim that is plausible on its face even under the rational basis standard of review.34
Applying the rational basis standard, the question before the court is whether the spousal limitation in Section O bears “a rational relationship to an independent and legitimate legislative end.”35 The statute is presumed constitutional, and the burden is on those attacking the rationality of the legislative classification “to negative every conceivable basis which might support it.”36 However, “even the standard of rationality ... must find some footing in the realities of the subject addressed by the legislation.”37 Moreover, the court applies a “more searching form of rational basis review” when a classification harms politically unpopular groups or personal relationships.38
34See In re Levenson, 587 F.3d 925, 931(9th Cir. 2009). 35Romer v. Evans, 517 U.S. 620, 633 (1996). 36Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (internal citations and quotation omitted). 37Immigrant Assistance Project of Los Angeles County Federal of Labor v. I.N.S., 306 F.3d 842, 872 (9th Cir. 2002) (quoting Heller, 509 U.S. at 321). 38See, e.g., Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring) ((“When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal
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The State offers the following rationales for Section O: (1) the statute “will save
the State millions of dollars per year”; (2) the statute will be “much easier to administer”;39 (3) “scarce funds for employee benefits are better spent on employees
and dependents as defined in the new statute”; (4) “this benefit would be most valuable
to married persons, who are more likely to have dependent children”; and, (5) the new
statute “would further the rational, long-standing and well-recognized government interest in favoring marriage.”40 Plaintiffs argue there is no legitimate interest served by
denying lesbian and gay State employees, including plaintiffs, equal compensation in
the form of subsidized family coverage.
a. Cost Savings
The State argues that the cost savings of limiting benefits to “spouses” of
employee-members is sufficient to satisfy the rational basis test. Plaintiffs argue that
the State may not “protect the public fisc by drawing an invidious distinction between classes of its citizens.”41 The court must agree, for the Supreme Court has held that,
although “a State has a valid interest in preserving the fiscal integrity of its programs,”
Protection Clause.”); U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (holding that an amendment preventing households containing unrelated individuals from receiving food stamps violated equal protection because it was intended to prevent “hippies” from participating in food stamp program); Romer, 517 U.S. at 632 (finding that an amendment that made it more difficult for one group of citizens - homosexuals - to seek aid from the government denies equal protection of the laws); Eisenstadt, 405 U.S. at 454 (concluding that under the Equal Protection Clause, the State could not outlaw distribution of contraceptives to unmarried persons but not to married persons).
39Doc. 22 at 8-9. 40Id. at 10. 41Doc. 23 at 9 (quoting Memorial Hospital v. Maricopa County, 415 U.S. 250, 263 (1974)).
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the State may not attempt to “limit its expenditures . . . by invidious distinctions between classes of its citizens.”42 That proposition applies here because the spousal limitation in Section O rests on an invidious distinction between heterosexual and homosexual State employees who are similarly situated.43
Plaintiffs allege that offering family coverage to “the small pool of lesbian and gay State employees who otherwise are categorically barred from family coverage because they cannot marry causes only negligible costs for the State.”44 Plaintiffs’ complaint specifically alleges that “family coverage for lesbian and gay State employees with a same-sex life partner costs far less than the half-of-one-percent-of-health-costs figure ... attributable to unmarried domestic partners generally,”45 and that “the minimal costs of offering family coverage to lesbian and gay State employees is offset by the resulting reduced use of AHCCCS,46 which is more costly on average to the State than allowing employees to share the cost of their health insurance by paying a portion of the premium for family coverage.”47 For purposes of the motion to dismiss, these facts must be accepted as true. Thus, plaintiffs have demonstrated that denying benefits to same-
42Graham v. Richardson, 403 U.S. 365, 374 (1971) (quoting Shapiro v. Thompson, 394 U.S. 618, 633 (1969)).
43Eisenstadt, 405 U.S. at 454. 44Doc. 19 at p. 31. 45Id. 46Arizona Health Care Cost Containment System (“AHCCCS”) is Arizona’s Medicaid agency. 47Doc. 19 at p. 32.
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sex domestic partners of State employees is not rationally, much less substantially, related to the purported rationale of cost savings.
Moreover, if the State’s interest were “simply saving money, the companion goal of promoting marriage would seem to do the opposite.”48 If Section O succeeds in promoting marriage, the State will have to provide health benefits to more people, thus increasing the State’s expenditures.
b. Administrative Efficiency The State next argues that restricting the definition of “dependent” to “spouse” in Section O results in a benefits system that is easier to administer, and that “simplifying a complex administrative program is the sort of rational basis that justifies a distinction between married and unmarried participants.”49 Plaintiffs claim that “purported administrative convenience [cannot] justify singling out lesbian and gay employees for disfavored treatment.”50 The Supreme Court noted in Frontiero v. Richardson that “although efficacious administration of governmental programs is not without some importance, ‘the Constitution recognizes higher values than speed and efficiency.’”51 While the State claims that “the restricted definition of dependent results in a benefits system that is much easier and less expensive to administer,” the savings arise from an impermissible invidious classification which imposes costs on lesbians and gays by stripping their
48Alaska Civil Liberties Union v. State of Alaska, 122 P.3d 781, 790 (Alaska 2005). 49Doc. 22 at p. 9. 50Doc. 23 at p. 10. 51411 U.S. 677, 690 (1973) (quoting Stanley v. Illinois, 405 U.S. 645, 656 (1972)).
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dependents of health care benefits, which the dependents of their heterosexual counterparts would continue to enjoy.
In addition, the State has already implemented a set of criteria domestic partners must meet to show their financial interdependence, commitment, and dependency and has successfully applied the criteria to those few State employees who apply for benefits for their same-sex domestic partners. There is little or no continuing administrative burden on the State in providing health coverage to plaintiffs and their partners, all of whom have already met the eligibility requirements for coverage. Applying the existing standards to the occasional new gay or lesbian applicant would be a minimal burden.
c. Funds Better Spent on Heterosexual Spouses The State contends that another rational basis for the spousal limitation in Section O is that “scarce funds for employee benefits are better spent on employees and dependents as defined in the new statute.”52 Plaintiffs argue that the State’s rationale is discriminatory on its face, and not a rational state interest. The court concurs. The State’s justification raises “the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,”53 namely toward same-sex domestic partners who by law cannot become spouses. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a

52Doc. 22 at p. 10. 53Romer, 517 U.S. at 635.

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legitimate governmental interest.”54 “Romer makes clear that a simple desire to treat gays and lesbians differently is not, in and of itself, a proper justification for government actions. Discrimination against gays and lesbians, or same-sex couples, must, at the very least, serve some more substantive and lawful function.”55
d. Interest in Favoring Marriage and Families with Children The State also contends that limiting family coverage to “spouses” and their children is rational because it would further the “long-standing and well-recognized government interest in favoring marriage” and family coverage “would be more valuable to married persons, who are more likely to have dependent children.”56 Plaintiffs argue that the State’s purpose to favor or promote marriage “simply restates an intent to privilege [heterosexual] employees along invidious lines.”57 In addition, plaintiffs indicate that six out of the nine same-sex couples represented in this action are raising children together. Plaintiffs further claim that “Section O cannot be said to promote the welfare of children” when its effect is to “arbitrarily strip[] benefits from one group of employees with children who are no less worthy of insurance.”58 The State cites Irizarry v. Board of Education of the City of Chicago59 for the proposition that the government’s interest in favoring marriage and procreation is
54Id. (quoting Moreno, 413 U.S. at 534). 55Levenson, 587 F.3d at 932 (citing Romer v. Evans, 517 U.S. 620 (1996)). 56Doc. 22 at p. 10. 57Doc. 23 at p. 12. 58Id. 59251 F.3d 604 (7th Cir. 2001).
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“rational, long-standing and well-recognized.”60 However, Irizarry did not decide the question of whether the promotion of marriage was a rational justification for distinguishing between heterosexuals and homosexuals.61 In any event, unlike Izirarry, the question before this court is whether Section O’s distinction between heterosexual and homosexual employees is rationally related to the State’s interest in promoting marriage and families with children. The court concludes that it is not.
The Supreme Court has characterized marriage as “the most important relation in life,”62 but construing the facts of the complaint as true it cannot be said that Section O’s distinction between heterosexual and homosexual employees is legitimately, rationally, and substantially related to promoting that interest. Certainly, that aspect of Section O which is challenged, the denial of benefits to State employee’s same-sex domestic partners, cannot promote marriage because gays and lesbians are ineligible to marry.63 It is only by denying benefits to heterosexual domestic partners that marriage might be promoted. However, denying benefits to heterosexual partners (who can marry in order to obtain benefits) does not require denial of those benefits to homosexual partners (who cannot marry). It is possible that the State’s proffered
60Doc. 22 at 10 (citing Irizarry, 251 F.3d at 607). 61Irizarry, 251 F.3d at 607-08. 62Zabolcki v. Redhail, 434 U.S. 374, 384 (1978) (quoting Maynard v. Hill, 125 U.S. 190, 205 (1888)). 63Alaska Civil Liberties Union v. State of Alaska, 122 P.3d 781, 793 (Alaska 2005).
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interest in promoting or protecting marriage and procreation is a post hoc justification in response to litigation.64
The State’s interests in cost control, administrative efficiency, and promotion of marriage are legitimate. However, construing the facts alleged in the complaint as true, the absolute denial of benefits to employees with same-sex domestic partners is not rationally and substantially related to these governmental interests. Moreover, the court cannot identify any other governmental interests that might be served by denying plaintiffs the same access to family medical coverage afforded to heterosexual State employees.65 Accordingly, the court denies the State’s motion to dismiss plaintiffs’ equal protection claim.
2. Substantive Due Process Claim The State next moves to dismiss plaintiffs’ claims under the Substantive Due Process Clause of the Fourteenth Amendment for failing to state a claim upon which relief may be granted. Plaintiffs argue that Section O burdens their fundamental right to form and sustain intimate family relationships under the substantive due process framework articulated in Lawrence v. Texas66 and Witt v. Department of the Air Force.67 The State argues, on the other hand, that the State’s refusal to fund the exercise of even a fundamental right does not amount to an interference with that right, citing
64United States v. Virginia, 518 U.S. 515, 532 (1996) (“The justification must be genuine, not hypothesized or invented post hoc in response to litigation.”)
65Levenson, 587 F.3d at 934. 66539 U.S. 558 (2003). 67527 F.3d 806 (2008).
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Ysura v. Pocatello Education Association.68 The State further asserts that Section O in no way burdens plaintiffs’ liberty interests because, assuming plaintiffs’ allegations are true, their “long-term and stable relationships . . . flourished years before the domestic partner benefit was first established in 2008.”69 Finally, the State claims that “[i]t cannot be seriously contended that optional employees health insurance is deeply rooted in the Nation’s history and traditions”70 and, therefore, “is not a fundamental right protected by due process.”71
The State has the more persuasive argument. As an initial matter, Ysura held, in the context of a free speech challenge to Idaho’s ban on public-employee payroll deductions for political activities, that a State’s “decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.”72 Thus, even if the court were to find that plaintiffs’ right to form and sustain intimate family relationships was indirectly burdened, it would be constitutionally permissible, under rational basis review, for the State to discontinue funding health benefits. While plaintiffs are correct that the availability of health insurance is a “valuable benefit of employment,” there is no fundamental right to such a benefit.
68— U.S. —, 129 S.Ct. 1093 (2009). 69Id. 70Id. at 13. 71Doc. 27 at 7. 72Ysura, 129 S. Ct. at 1098 (quoting Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549 (1983)).
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Although it likely would put the State at a competitive hiring disadvantage, it is free to refuse its employees health benefits under the U.S. Constitution.
In that regard, the State is also correct that State employees do not have a fundamental right to dependent health benefits. This is not a case like Lawrence, where the right to engage in private, consensual sexual activity was burdened by a law banning homosexual conduct which, in turn, burdened the rights of homosexuals to engage in private relations within their own home, which was deemed fundamental. Here, plaintiffs’ stated right to form and sustain family relationships is not burdened by Section O. As the State points out, most of the plaintiffs have been in committed relationships with their respective domestic partners for upwards of 20 years, commencing long before domestic partner benefits were extended to them. Moreover, it is not tenable to assert that people who are devoted to one another in the manner of the plaintiffs would opt to avoid commitment simply because one partner could not secure health benefits for the other.
Plaintiffs’ argument that Witt “made clear that adverse employment actions - such as Section O’s elimination of valuable health benefits - constitute sufficient injury to give rise to an actionable due process claim” ignores the salient limitation in Witt, namely, that Lawrence-based claims must involve a government intrusion of some sort. Indeed, Witt set forth the following heightened scrutiny analysis to be used in evaluating a Lawrence-based substantive due process claim,
[W]hen the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the
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third factor, a less intrusive means must be unlikely to achieve substantially the government's interest.73 Here, plaintiffs have been unable to articulate the way in which the State has intruded into their personal and private affairs. Indeed, under the present statutory scheme, the State intrudes far deeper into plaintiffs’ lives by inquiring of their eligibility for domestic partner benefits than it would after Section O’s implementation. Because plaintiffs cannot point to a constitutionally remediable intrusion, plaintiffs have failed to state a substantive due process claim that is plausible on its face and their substantive due process claim is dismissed. As discussed above, plaintiffs’ remedy lies in the Equal Protection Clause. 3. Immunity of Defendant Brewer Finally, the State contends that “because Governor Brewer is entitled to legislative immunity for signing [H.B.] 2013 and 42 U.S.C. § 1983 does not permit claims for vicarious liability, she should be dismissed from this lawsuit.”74 Plaintiffs argue that they do not seek an order in connection with Governor Brewer’s signing H.B. 2013 or an order based on vicarious liability.75 Rather, plaintiffs seek to enjoin Governor Brewer from enforcing Section O based on her specific statutory duty in A.R.S. § 41-703(1) to oversee the Department of Administration’s operations to

73Witt, 527 F.3d at 819. 74Doc. 27 at p. 11. 75Doc. 41 at pp. 7-8.

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eliminate family health insurance eligibility for same-sex domestic partners of State employees.76 Plaintiffs’ amended complaint alleges in pertinent part:
168. Upon information and belief, Defendant Brewer has the duty and authority to ensure that the Department implements Section O, and through her own individual actions, has acted and, if not enjoined, will continue to act personally to violate Plaintiffs’ right to equal protection by implementing Section O to strip Plaintiffs discriminatorily of access to family coverage for a committed same-sex life partner, thereby proximately causing Plaintiffs’ injury.77 The State argues that if plaintiffs’ argument is accepted, Governor Brewer “could be sued every time someone challenges the constitutionality of any statute ... based on the general theory that a state’s chief executive is charged with the enforcement of all its laws.”78 Perhaps that is so, but it is hard to see why that makes a difference. Moreover, in another action pending before this court which seeks injunctive and declaratory relief based on the passage of Senate Bill 1017, Governor Brewer sought and received leave to intervene “both in her official capacity and on behalf of the State of Arizona - pursuant to her role as the highest executive voice in the State and to ensure that SB 1070 is ‘faithfully executed.’” In support, Governor Brewer argued that “Article 5, Section 4 of the Arizona Constitution provides [the governor] with the duty to ‘take care that the laws be faithfully executed’ and to ‘transact all executive business
76A.R.S. § 41-703(1) provides that the director of the Department of Administration shall “[b]e directly responsible to the governor for the direction, control and operation of the department.”
77Doc. 19 at p. 36. 78Doc. 27 at p. 9.
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with the officers of the government....’”79 Governor Brewer is subject to suit in her role
as “the highest executive voice in the State” in this action as well. Citing al-Kidd v. Aschcroft,80 plaintiffs also seek to enjoin defendant Brewer
based on her status as an official with supervisory responsibility. The State argues that
even if Governor Brewer is responsible for supervising the other named defendants, “a
supervisor may be liable only if the supervisor is personally involved in the constitutional
deprivation or there is a causal connection between the supervisor’s conduct and the constitutional violation.”81
In al-Kidd, the Ninth Circuit recognized that “direct, personal participation is not
necessary to establish liability for a constitutional violation.”
Supervisors can be held liable for the actions of their subordinates (1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinate; or (4) for conduct that shows a ‘reckless or callous indifference to the rights of others.’82
“Any one of these bases will suffice to establish the personal involvement of the defendant in the constitutional violation.”83
Plaintiffs’ amended complaint alleges that defendant Brewer “directly caused
action by others to enforce and implement Section O which [she] knew, or reasonably
79Friendly House v. Whiting, 2:10-cv-01061, Doc. 51 at p. 5. 80580 F.3d 949 (9th Cir. 2009). 81Doc. 22 at p. 15. 82al-Kidd, 580 F.3d at 965. 83Id.
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should have known, would cause others to inflict these constitutional injuries upon Plaintiffs”; “knowingly refused to prevent anticipated action by others who are charged to implement State law and policies under her supervision, including Section O’s elimination of family coverage for Plaintiffs”; has caused and acquiesced in this constitutional deprivation to be effectuated by her subordinates”; and, “has engaged in conduct demonstrating a reckless and callous indifference to the constitutional rights of Plaintiffs.”84
Taken as true, plaintiffs have pled enough facts to state a claim of supervisory liability against defendant Brewer that is plausible on its face. “Were this case before [the court] on summary judgment, and were the facts pled in the complaint the only ones in the record, [the court’s] decision might well be different.”85 However, the plausibility standard “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence to prove that claim.”86 B. Motion for Preliminary Injunction
Plaintiffs seek a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 enjoining the State from enforcing the portion of A.R.S. § 38-651(O) that restricts family health insurance to State employees with a spouse “to the extent that Section O eliminates Plaintiffs’ eligibility to qualify for State employee family health

84Doc. 19 at p. 37 85al-Kidd, 580 F.3d at 977. 86Id.

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insurance covering each Plaintiff’s same-sex life partner and that partner’s qualifying children.”87 As explained by the Supreme Court, “plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest.”88
1. Likelihood of Success on the Merits The State argues that plaintiffs “have no chance of success on the merits unless they can establish that there is no possible rational basis for the new definition of dependent.”89 As discussed above, construing the facts alleged in the complaint as true, plaintiffs have demonstrated that the absolute denial of benefits to employees with same-sex domestic partners is not rationally and substantially related to the State’s purported interests in cost savings, administrative efficiency, and favoring marriage and families with children. In support of their motion for preliminary injunctive relief, plaintiffs attach further evidence that Section O is not rationally related to the State’s purported interests in cost savings and administrative efficiency, including a report produced by the State, entitled “Annual Check-Up Benefit Options October 1, 2008 through September 30, 2009,” which summarizes the efficiency and effectiveness of the State health plan during 2008-
87Doc. 31 at p. 2. 88Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v. Natural Resource Defense Council, Inc., --- U.S. ---, 129 S.Ct. 365, 374 (2008)). 89Doc. 40 at p. 6.
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2009, the first year the State provided coverage for employees’ domestic partners and their children. The report states in relevant part,
In review, the 2008-2009 Plan Year demonstrated a balance of expenses and premiums that allowed the State to offer members comprehensive and affordable insurance coverage. The State effectively controlled the rise in health care costs through quality benefit design, administrative oversight, strategic audit planning and efficient contracts management.90 Plaintiffs also attach evidence showing that domestic partner coverage for both samesex and opposite-sex partners costs the State about $3 million in 2008-2009, in comparison to the $625 million the State spent on health insurance for other employees.91 Plaintiffs further provide an economist’s estimate that “when employees’ same-sex partners are provided access to an employer’s health plan, enrollment tends to increase by 0.1% to 0.3%.”92 The economist further states that the cost of family coverage for lesbian and gay employees comprises “between 0.06% and 0.27%” of the State’s total spending on health benefits.93 This evidence further increases the likelihood of plaintiffs’ success on the merit of their equal protection claim. In opposition to the motion for a preliminary injunction, the State attaches a spreadsheet indicating that a total of 698 domestic partners participated in the State’s health plan in the 2008-2009 plan year, and 893 domestic partners participated in the 2009-2010 plan year. The spreadsheet also lists the total of $4,076,822 claims for domestic partners in 2008-2009, and $5,490,660 for domestic partner claims in the

90Doc. 32-1 at p. 8. 91Doc. 32-2 at p. 2. 92Doc. 42 at p. 3. 93Id. at p. 5.

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2009-2010 plan year to date.94 However, no information is provided as to the number of same-sex domestic partners participating in the State health plan, nor the total claims of same-sex domestic partners.
For the reasons set out in the court’s discussion of the motion to dismiss and based on the further evidence provided by plaintiffs in support of their motion for preliminary injunctive relief, plaintiffs have demonstrated a likelihood of success on the merits on their equal protection claim.
2. Irreparable Harm In Winter, the Supreme Court “clarified that preliminary injunctive relief is available only if plaintiffs ‘demonstrate that irreparable injury is likely in the absence of an injunction,’” not merely possible.95 Plaintiffs have demonstrated several kinds of irreparable harm. First, because plaintiffs have shown a likelihood of success on the merits of their equal protection claim, plaintiffs have demonstrated the harm of unconstitutional discrimination based on sexual orientation if injunctive relief is not granted. The Ninth Circuit has stated that “an alleged constitutional infringement will alone constitute irreparable harm.”96 “Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm.”97
94It is unclear whether these figures reflect premiums paid by employees. 95Johnson v. Couturier, 572 F.3d 1067, 1078 (9th Cir. 2009) (quoting Winter, 129 S.Ct. at 374). 96Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Assoc. General Contractors v. Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir. 1991)). 97Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008).
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Plaintiffs have also demonstrated that they are likely to suffer extreme anxiety and stress in the absence of an injunction enjoining the State from enforcing Section O to eliminate family health insurance eligibility for lesbian and gay State employees. Like the loss of one’s job, the loss of one’s job benefits “does not carry merely monetary consequences; it carries emotional damages and stress, which cannot be compensated by mere back payment of wages.”98 Plaintiffs’ declarations document that some of them might not be able to secure private health coverage for their domestic partners who have serious pre-existing health conditions and have been refused private coverage in the past.99 Several plaintiffs’ domestic partners have medical conditions requiring daily medication and consistent treatment that if left untreated will likely lead to irreversible health consequences.100 In addition, plaintiffs’ declarations substantiate the stress of incurring greater financial burdens to provide private insurance coverage for their domestic partners and their children.101
Plaintiffs further document the financial hardship that losing family coverage through the State health plan will impose on their families.102 While “[i]t is true that economic injury alone does not support a finding of irreparable harm, because such
98Id. 99See, e.g., Doc. 31-1 at pp. 2-4; Doc. 31-4 at p. 3; Doc. 31-5 at pp. 2-3; Doc. 31-6 at p. 3, Doc. 31-9 at p. 3. 100See, e.g., Doc. 31-1; Doc. 31-4; Doc. 31-5; Doc. 31-6. 101See, e.g., Doc. 31-3 at p. 4; Doc. 31-4 at p. 3. 102See, e.g., Doc. 31-3 at p. 4; Doc. 31-4 at p. 3; Doc. 31-5 at p. 3; Doc. 31-7 at p. 3; Doc. 31-8 at p. 3; Doc. 31-9 at p. 4.
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injury can be remedied by a damage award,”103 all plaintiffs have demonstrated other harms than economic injury, including the stigma of discriminatory treatment and the harm of receiving unequal compensation for equal work.
The State argues that plaintiffs will not suffer irreparable harm because they will likely be able to obtain coverage for their domestic partners and their children either through private insurance coverage, the Arizona Medicaid agency, or through the employers of their domestic partners. Even assuming that is true, the Ninth Circuit has recognized there is “an inherent inequality” in allowing some employees to participate fully in the State’s health plan, while expecting other employees to rely on other sources, such as private insurance or Medicaid. “This ‘back of the bus’ treatment relegates Plaintiffs to a second-class status by imposing inferior workplace treatment on them, inflicting serious constitutional and dignitary harms that after-the-fact damages cannot adequately redress.”104 For all of the above reasons, plaintiffs have demonstrated the likelihood of irreparable harm in the absence of injunctive relief.
3. Balance of Equities “To qualify for injunctive relief, the plaintiffs must establish that ‘the balance of equities tips in [their] favor.’”105 “In assessing whether the plaintiffs have met this burden, the district court has a ‘duty ... to balance the interests of all parties and weigh
103Rent-A-Center, Inc. v. Canyon Television, 944 F.2d 597, 603 (9th Cir. 1991). 104Doc. 31 at p. 15 (quoting In re Golinski, 587 F.3d 956, 960 (9th Cir. 2009)) 105Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009) (quoting Winter, 129 S.Ct. at 374)
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the damage to each.’”106 Plaintiffs argue that the “extreme hardship to plaintiffs of foregoing family insurance, or paying significantly more for an inferior alternative, greatly outweighs the negligible cost to [the State] of maintaining the status quo.”107 Plaintiffs further argue that continuing plaintiffs’ coverage in a group health plan that the Department of Administration admitted has functioned efficiently and successfully with plaintiffs’ participation imposes a small burden on defendants, if any at all. In addition, plaintiffs contend that any attempt to compensate plaintiffs with damages would be inadequate to remedy the irreparable harms of inequitable treatment and the stress and anxiety caused by the loss of benefits.
The State argues that the balance of equities favors the State, contending that plaintiffs’ out-of-pocket expenses and private health insurance costs would be minimal compared to the costs of continuing domestic partner coverage. The State, however, has not provided any evidence showing the costs to the State of providing coverage for same-sex domestic partners who meet the criteria set forth in Ariz. Admin. Code § R25-101. To the contrary, although the State suggests entry of a preliminary injunction will worsen the State’s budget shortfall, the record indicates that the impact of an injunction on the State’s budget shortfall would be minimal, particularly in light of the unrefuted estimate that the cost of family coverage for lesbian and gay employees comprises “between 0.06% and 0.27%” of the State’s total spending on health benefits.108
106Id. (citing L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980)).
107Doc. 31 at p. 16. 108Doc. 42 at p. 5.
-30-

The State further argues that granting preliminary injunctive relief and awarding plaintiffs’ domestic partner benefits, even temporarily, would “cause harm to other constituents of State services,” suggesting that continuing plaintiffs’ domestic partner benefits “would cause potential budget cuts for education, indigent health care, public safety, social programs, or perhaps layoffs for some more State employees like the plaintiffs, in order to pay for the domestic partner coverage.”109 The State’s argument, which is not supported by any evidence, is speculative at best, and discriminatory at worst. Contrary to the State’s suggestion, it is not equitable to lay the burden of the State’s budgetary shortfall on homosexual employees, any more than on any other distinct class, such as employees with green eyes or red hair. “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.”110 Based on the record, the court concludes that the balance of equities tips in favor of plaintiffs.
4. Public Interest “The public interest analysis for the issuance of a preliminary injunction requires us to consider ‘whether there exists some critical public interest that would be injured by the grant of preliminary relief.’”111 The State contends that the public’s interest in reducing the cost of State employees’ health coverage would be injured by granting injunctive relief. However, as discussed above, the record demonstrates that the impact of injunctive relief on the Arizona’s total expenditures for health coverage for State
109Doc. 40 at p. 14. 110Romer, 517 U.S. at 633 (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). 111Independent Living Center of Southern California, Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir. 2009) (quoting Hybritech Inc. v. Abbott Labs., 849 F.2d 1446, 1458 (Fed.Cir. 1988)).
-31-

employees would be minimal. Accordingly, the State’s budgetary considerations do not “constitute a critical public interest that would be injured by the grant of preliminary relief.”112
On the other hand, it would not be in the public’s interest to allow the State to violate the plaintiffs’ rights to equal protection when there are no adequate remedies to compensate plaintiffs for the irreparable harm caused by such violation.113 The public interest weighs in favor of injunctive relief. Because plaintiffs have demonstrated that they are likely to succeed on the merits of their equal protection claim, that they face a significant threat of irreparable injury, and that the balance of equities and the public interest favor them, the court will grant the motion for preliminary injunction.
V. CONCLUSION For the reasons set forth above, the State’s motion to dismiss at docket 22 is GRANTED in part and DENIED in part as follows: (1) the motion is DENIED with respect to plaintiffs’ equal protection claim; (2) the motion is GRANTED with respect to plaintiffs’ substantive due process claim; and (3) the motion is DENIED as to defendant Brewer’s claim of immunity. It is FURTHER ORDERED that plaintiffs’ motion for preliminary injunction at docket 31 is GRANTED as follows: 1) Defendants are enjoined from enforcing A.R.S. § 38-651(O) to eliminate family insurance eligibility for lesbian and gay State employees, and their domestic
112Id. 113California Pharmacists Ass’n, 563 F.3d at 852-853.
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partners and domestic partners’ children who satisfy the criteria set forth in Ariz. Admin. Code § R2-5-101; 2) Defendants are required to make available family health insurance coverage for lesbian and gay State employees, including plaintiffs, who satisfy the relevant eligibility criteria set forth in Ariz. Admin. Code § R2-5-101 to the same extent such benefits are made available to married State employees; 3) The preliminary injunction shall take effect within ten (10) business days and shall remain in effect pending trial in this action or further order of the court. DATED this 23rd day of July, 2010.
/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE
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 Case 2:09-cv-02402-JWS Document 62-3 Filed 05/21/12 Page 1 of 13

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 JOSEPH R. D IAZ; JUDITH MCDANIEL;
KEITH B. H UMPHREY; BEVERLY SECKINGER; STEPHEN RUSSELL; DEANNA PFLEGER; CARRIE SPERLING; LESLIE KEMP; COREY SEEMILLER,
Plaintiffs-Appellees,

v.

JANICE K. B REWER, in her official capacity as Governor of the State of Arizona; D AVID RABER, in his official capacity as Interim

No. 10-16797
 D.C. No. 2:09-cv-02402-JWS

Director of the Arizona

OPINION

Department of Administration and

Personnel Board; K ATHY

PECKARDT, in her official capacity

as Director of Human Resources

for the Arizona Department of

Administration and Personnel

Board,

 Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona
John W. Sedwick, District Judge, Presiding
Argued and Submitted February 14, 2011—San Francisco, California
Filed September 6, 2011

16897

Case 2:09-cv-02402-JWS Document 62-3 Filed 05/21/12 Page 2 of 13

16898

DIAZ v. B REWER

Before: Mary M. Schroeder and Sidney R. Thomas, Circuit Judges, and Mark W. Bennett, District Judge.*

Opinion by Judge Schroeder

*The Honorable Mark W. Bennett, District Judge for the United States District Court for the Northern District of Iowa, sitting by designation.

Case 2:09-cv-02402-JWS Document 62-3 Filed 05/21/12 Page 3 of 13

16900

DIAZ v. B REWER COUNSEL

Tara L. Borelli, Los Angeles, California, for plaintiffsappellees Joseph R. Diaz, et al.

Charles A. Grube, Deputy State Attorney General, Phoenix, Arizona, for defendants-appellants Janice K. Brewer, et al.

OPINION
SCHROEDER, Circuit Judge:
The State of Arizona appeals the district court’s order granting a preliminary injunction to prevent a state law from taking effect that would have terminated eligibility for healthcare benefits of state employees’ same-sex partners. In a published opinion, the district court found that the plaintiffs demonstrated a likelihood of success on the merits, because they showed that the law adversely affected a classification of employees on the basis of sexual orientation, and did not further any of the state’s claimed justifiable interests. Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010). 1 The court also found that the plaintiffs had established a likelihood of irreparable harm in the event coverage for partners ceased. The district court’s findings and conclusions are supported by the record and we affirm.
BACKGROUND
In April of 2008, the State of Arizona administratively adopted amendments to Section 101 of Chapter 5 of Title 2 of the Arizona Administrative Code to offer access to healthcare benefits for qualified opposite-sex and same-sex domestic partners of state employees. Prior to 2008, when state
1On June 6, 2011, the panel granted Plaintiff Tracy Collins’s unopposed motion to dismiss without prejudice.

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DIAZ v. B REWER

16901

employees chose to participate in the State’s health insurance program, they only had the option to include their spouses and children within the defined parameters of the term “dependent.” In 2008, the amendments expanded the definition of “dependent” to include qualified “domestic partners,” who could be of either sex. See 14 Ariz. Admin. Reg. 1420-34 (Apr. 25, 2008).

In November of 2008, however, the Arizona voters approved Proposition 102, also known as the Marriage Protection Amendment, which amended the Arizona Constitution to define marriage as between one man and one woman: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state. ” Ariz. Const. art. 30, § 1. On September 4, 2009, the governor of Arizona signed House Bill 2013, which included a statutory provision, Ariz. Rev. Stat. § 38-651(O) (“Section O”) that redefined “dependants” as “spouses,” and thus would eliminate coverage for domestic partners:

O. FOR THE PURPOSES OF THIS SECTION, BEGINNING OCTOBER 1, 2009, “DEPENDENT” MEANS A SPOUSE UNDER THE LAWS OF THIS STATE, A CHILD WHO IS UNDER NINETEEN YEARS OF AGE OR A CHILD WHO IS UNDER TWENTY-THREE YEARS OF AGE AND WHO IS A FULL-TIME STUDENT.

After a number of adjustments not at issue here, the new definition of “dependent” was slated to take effect on January 1, 2011.

A group of gay and lesbian state employees ( “Plaintiffs”) filed a complaint on November 17, 2009 amended on January 7, 2010, seeking injunctive and declaratory relief to redress Section O’s claimed violation of their equal protection and substantive due process rights under the Fourteenth Amendment to the U.S. Constitution. According to the factual allega-

Case 2:09-cv-02402-JWS Document 62-3 Filed 05/21/12 Page 5 of 13

16902

DIAZ v. B REWER

tions of the complaint, which are not disputed, all of the plaintiffs are highly skilled state employees whose job duties are equivalent to the duties of their heterosexual colleagues. Each of the nine plaintiffs and his or her domestic partner have enjoyed a long-term, committed, and financially interdependent relationship, and would marry if Arizona law permitted same-sex couples to marry. Each plaintiff enrolled his or her domestic partner and the domestic partner’s qualifying children (if any) for family coverage during the 2008 or 2009 open enrollment period. Each plaintiff, domestic partner, and partner’s child met the eligibility requirements for coverage at the time of enrollment and continue to meet those requirements. Each named plaintiff would lose health insurance coverage for his or her domestic partner, and his or her partner’s children if Section O were to go into effect.

The complaint also reflects that such a loss would cause all of the plaintiffs serious financial and emotional harm. For example, one of the plaintiffs, Beverly Seckinger, a Professor and Interim Director of the School of Media Arts at the University of Arizona, has been in an exclusive and financially interdependent relationship with Susan Taunton for over 22 years. The two registered as domestic partners with the City of Tucson in October 2005. Susan enrolled in the state’s family coverage in 2008, and remains enrolled. Susan is the primary caregiver for her 89-year-old mother, who has dementia and needs much more caregiving help than her assisted living facility can provide. The care of her mother precludes Susan from obtaining full-time employment.

Private insurers have consistently refused to insure Susan because of her chronic asthma. Beverly’s declaration stated that “[e]ven if [she] were to persuade a private insurer to provide Susan with health coverage, [she] would not be able to secure a health plan with equivalent coverage. ” Moreover, due to Beverly’s financial support, it is possible that Susan no longer qualifies for medical coverage through the state’s Medicaid program.

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DIAZ v. B REWER

16903

Another plaintiff, Joseph R. Diaz, an Associate Librarian at the University of Arizona, has been in a committed relationship for the last 17 years with Ruben E. Jim énez. Ruben enrolled in the state’s family coverage in 2008 and 2009, and he relied on this coverage in making a decision to leave his low-wage job with health benefits for a more promising position without health benefits. Ruben has high cholesterol and Type 2 diabetes, and requires daily medication and testing strips which would cost approximately $300 a month out of pocket. A private insurance agent informed Joseph and Ruben that “she could not locate any individual insurance plans in Arizona that would cover a person [like Ruben] with diabetes and high cholesterol.” Ruben earns $100 too much per month to qualify for indigent health care.

Defendants include the governor of Arizona, the interim Director of the Arizona Department of Administration (“ADOA”), and two other ADOA officials. They moved to dismiss the complaint on the ground that the complaint failed to state equal protection and substantive due process claims, and argued that the statute furthered valid legislative interests. It further argued that the governor was immune from suit.

Plaintiffs opposed the motion and sought a preliminary injunction barring enforcement of the law. They submitted affidavits and other material to support their position that the law did not further any legitimate financial or administrative interest of the state. The supporting materials included the analysis of an expert that the entire state expenditure for domestic partner benefits represented a tiny fraction of the total employee healthcare benefits.

In a careful order, the court considered each of the possible state interests the law might be said to further and ruled that the law and the record negated each of them. Although plaintiffs argued heightened scrutiny was required, the district court applied rational basis review, but noting that such review is more searching when a classification adversely

Case 2:09-cv-02402-JWS Document 62-3 Filed 05/21/12 Page 7 of 13

16904

DIAZ v. B REWER

affects unpopular groups. Collins, 727 F. Supp. 2d at 804 (citing Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring)). We do not need to decide whether heightened scrutiny might be required.

While the district court noted that Section O was not discriminatory on its face, because it affected both same-sex and different-sex couples, the court held that Section O had a discriminatory effect. This is because, under Arizona law, different-sex couples could retain their health coverage by marrying, but same-sex couples could not. Id. at 802-03. Therefore, the district court granted plaintiffs’ request for a preliminary injunction on equal protection grounds.

The court applied the appropriate standards for the grant of preliminary injunctive relief. See Fed. R. Civ. P. 65; see also Winter v. NRDC, 555 U.S. 7, 24-25 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1126-27 (9th Cir. 2009). It concluded that the plaintiffs had established a likelihood of success on the merits and that they were likely to suffer irreparable harm if the injunction did not issue. Collins, 727 F. Supp. 2d at 811-14. In assessing the likelihood of success, the court examined each of the interests the state contended the statute furthered and found the statute was not rationally related to them. In addition, the district court tried to conceive of any additional interests to sustain Section O and concluded it could not.

The likelihood of the plaintiffs suffering irreparable harm was well documented by the plaintiffs’ affidavits. The health problems of domestic partners facing loss of healthcare benefits included a life-threatening torn carotid artery, chronic asthma, and inability to obtain private insurance because of diabetes and high cholesterol. The court also considered the public interest and found it, as well as the balance of the equities, weighed in favor of granting injunctive relief. See Stormans, 586 F.3d at 1138-40.

Case 2:09-cv-02402-JWS Document 62-3 Filed 05/21/12 Page 8 of 13

DIAZ v. B REWER

16905

The district court, however, denied plaintiffs’ claim that the law violated substantive due process rights, Collins, 727 F. Supp. 2d at 809, and that claim is not before us. The court also held that the governor was not immune from a suit seeking injunctive relief. Id. at 809-11; see Ex parte Young , 209 U.S. 123 (1908); Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000). Finally, the court considered the arguments of the parties concerning a bond and ruled that plaintiffs’ were not required to post one.

This appeal by the defendants followed. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), as an appeal of an interlocutory order for a preliminary injunction.

DISCUSSION

[1] Defendants’ principal argument on appeal is that the district court, in granting the preliminary injunction, improperly accepted all of the plaintiffs’ allegations as true. This argument is premised on a fundamentally distorted misreading of the district court’s opinion. The court’s opinion was dealing with two separate and discrete motions. The first was the defendants’ motion to dismiss the complaint. The law is well settled that in deciding such motions the court is to accept the plaintiffs’ allegations as true. See Ashcroft v. Iqbal, ___U.S. ___, 129 S.Ct. 1937, 1949 (2009); Hebbe v. Pliler , 627 F.3d 338, 341-42 (9th Cir. 2010). The district court properly did so here and its order makes it apparent that it understood the proper application of the rule. Collins, 727 F. Supp. 2d at 802.

[2] After denying the defendants’ motion to dismiss, the court then considered the plaintiffs’ motion for a preliminary injunction. The court applied the appropriate standards, looking first at the likelihood of success on the merits. It reviewed each of the justifications for the law in light of the evidence in the record. Id. at 804-05. The most important was that the

Case 2:09-cv-02402-JWS Document 62-3 Filed 05/21/12 Page 9 of 13

16906

DIAZ v. B REWER

change furthered the state’s economic interests by reducing costs.

Of particular significance to the district court was the fact that while the plaintiffs produced expert analysis on the impact of the law on the state’s expenditures and found it minimal, id. at 811-12, the court was not provided any evidence of the actual amount of benefits the state paid for samesex partners:

In opposition to the motion for a preliminary injunction, the State attaches a spreadsheet indicating that a total of 698 domestic partners participated in the State’s health plan in the 2008-2009 plan year, and 893 domestic partners participated in the 2009-2010 plan year. . . . However, no information is provided as to the number of same-sex domestic partners participating in the State health plan, nor the total claims of same-sex domestic partners.

Id. at 812 (footnote omitted).

The district court therefore rejected what the state said was the principle justification for the statute: cost savings. Id. The defendants, on appeal, do not seriously challenge this finding.

[3] The defendants, on appeal, also contend that the district court’s order impermissibly recognized a constitutional right to healthcare. Again, this contention rests on a misunderstanding of the court’s decision. The court held that the withholding of benefits for same-sex couples was a denial of equal protection. The state is correct in asserting that state employees and their families are not constitutionally entitled to health benefits. But when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular. The most instructive Supreme Court case involving arbitrary restriction of benefits for a particular group perceived as

Case 2:09-cv-02402-JWS Document 62-3 Filed 05/21/12 Page 10 of 13

DIAZ v. B REWER

16907

unpopular is U.S. Department of Agriculture v. Moreno , 413 U.S. 528 (1973). In that case, Plaintiffs challenged the constitutionality of an amendment to the Food Stamp Act of 1964, which redefined the term “household” to limit the program’s eligible recipients to groups of related individuals. Id. at 529-30. While noting the “little legislative history ” available on the amendment, the Court concluded that the legislation was aimed at groups that were unpopular. The “amendment was intended to prevent so-called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program. ” Id. at 534.

In defending the amendment under rational basis review, the government contended that Congress might rationally have thought that the amendment would prevent fraud given the relative instability of households with unrelated individuals. Id. at 535. The Court rejected both justifications. The Court held that the “practical operation” of the amendment would allow the hippies, with means, who were allegedly abusing the program, to rearrange their housing status to retain eligibility, while excluding those who were financially unable to do so, i.e., “only those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility.” Id. at 538. Those excluded were like the same-sex partners in this case who, because they cannot marry, are unable to alter their living arrangements to retain eligibility. The Court concluded that the “hippie” amendment’s classification was “wholly without any rational basis. ” Id. We must reach the same conclusion.

[4] Here, as in Moreno, the legislature amended a benefits program in order to limit eligibility. Since in this case eligibility was limited to married couples, different-sex couples wishing to retain their current family health benefits could alter their status — marry — to do so. The Arizona Constitution, however, prohibits same-sex couples from doing so. Thus, this case may present a more compelling scenario, since

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16908

DIAZ v. B REWER

the plaintiffs in Moreno were prevented by financial circumstances from adjusting their status to gain eligibility, while same-sex couples in Arizona are prevented by operation of law.

[5] Defendants nevertheless contend on appeal that this law is rationally related to the state’s interests in cost savings and reducing administrative burdens. As the district court observed, however, the savings depend upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review. The Supreme Court in Eisenstadt v. Baird , 405 U.S. 438 (1972), was well aware of this principle when it quoted the eloquent words of Justice Robert H. Jackson, decrying the selective application of legislation to a small group:

The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

Eisenstadt, 405 U.S. at 454 (quoting Ry. Express Agency v. New York, 336 U.S. 106, 112-113 (1949) (Jackson, J., concurring)).

[6] The state has also argued that the statute promotes marriage by eliminating benefits for domestic partners, but the plaintiffs negated that as a justification. The district court properly concluded that the denial of benefits to same-sex

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DIAZ v. B REWER

16909

domestic partners cannot promote marriage, since such partners are ineligible to marry. Collins, 727 F. Supp. 2d at 807. On appeal, the state has not seriously advanced this justification.

[7] In sum, the district court correctly recognized that barring the state of Arizona from discriminating against same-sex couples in its distribution of employee health benefits does not constitute the recognition of a new constitutional right to such benefits. Rather, it is consistent with long standing equal protection jurisprudence holding that “some objectives, such as ‘a bare . . . desire to harm a politically unpopular group,’ are not legitimate state interests. ” Lawrence, 539 U.S. at 580 (O’Connor, J., concurring) (quoting Moreno, 413 U.S. at 534) (alteration in the original); see also City of Cleburne v. Cleburne Living Center, Inc. , 473 U.S. 432, 447 (1985). Moreover, the district court properly rejected the state’s claimed legislative justification because the record established that the statute was not rationally related to furthering such interests. Collins, 727 F. Supp. 2d at 807. Contrary to the state’s assertions, the court did not place the burden on the state to prove a legitimate interest. After concluding that neither the law nor the record could sustain any of the interests the state suggested, the district court considered whether it could conceive of any additional interests Section O might further and concluded it could not. On appeal, the state does not suggest any interests it or the district court may have overlooked. The court ruled the plaintiffs had established a likelihood of success in showing the statute furthered no legitimate interest.

[8] Finally, the state contends that the district court committed clear error by not considering whether plaintiffs should post a bond as required under Federal Rules of Civil Procedure Rule 65(c). Rule 65(c) provides that a district court may grant a preliminary injunction, “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. ” The district court

Case 2:09-cv-02402-JWS Document 62-3 Filed 05/21/12 Page 13 of 13

16910

DIAZ v. B REWER

retains discretion “as to the amount of security required, if any.” Johnson v. Couturier , 572 F.3d 1067, 1086 (9th Cir. 2009) (internal quotation marks and citations omitted) (emphasis in the original). Here, the parties disputed whether a bond was required. The district court considered the arguments and properly invoked its discretion not to have plaintiffs post a bond in this matter . There was no error.

AFFIRMED.

 
 Case 2:09-cv-02402-JWS Document 62-2 Filed 05/21/12 Page 1 of 10

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 JOSEPH R. D IAZ; JUDITH MCDANIEL;
KEITH B. H UMPHREY; BEVERLY SECKINGER; STEPHEN RUSSELL; DEANNA PFLEGER; CARRIE SPERLING; LESLIE KEMP; COREY SEEMILLER,
Plaintiffs-Appellees,

v.
JANICE K. B REWER, in her official capacity as Governor of the State of Arizona; D AVID RABER, in his official capacity as Interim Director of the Arizona

No. 10-16797
D.C. No.
 2:09-cv-02402-JWS District of Arizona, Phoenix

Department of Administration and

ORDER

Personnel Board; K ATHY

PECKARDT, in her official capacity

as Director of Human Resources

for the Arizona Department of

Administration and Personnel

Board,

 Defendants-Appellants.

Filed April 3, 2012
Before: Mary M. Schroeder and Sidney R. Thomas, Circuit Judges, and Mark W. Bennett,* District Judge.
Order; Dissent by Judge O’Scannlain

*The Honorable Mark W. Bennett, United States District Judge for the District of Northern Iowa, sitting by designation.
3585

Case 2:09-cv-02402-JWS Document 62-2 Filed 05/21/12 Page 2 of 10

3586

DIAZ v. B REWER ORDER

The panel has voted to deny defendants-appellants’ petition for panel rehearing. Judge Thomas has voted to deny the petition for rehearing en banc, and Judges Schroeder and Bennett have so recommended.

The full court was advised of defendants-appellants’ petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

Defendants-appellants’ petition for panel rehearing and petition for rehearing en banc are denied.

O’SCANNLAIN, Circuit Judge, joined by BEA, Circuit Judge, dissenting from the order denying rehearing en banc:
In this case a three-judge panel of our court holds that a state law limiting state-employee dependent-partner health benefits to spouses—and thus denying such benefits to dependent domestic partners—could not survive rational basis review. Although most of those affected adversely by the law would be opposite-sex couples, the panel concluded that the law irrationally discriminated against gays and lesbians.
The panel’s holding rests on a disparate impact theory that the Supreme Court has squarely rejected and on a misapprehension of rationality review. The panel also all but expressly held that opposite-sex-only marriage rules are unconstitutional—indeed, that such rules are irrational per se because they can rest only on a “bare desire to harm a politically unpopular group.” 656 F.3d 1008, 1015 (internal quotation marks and ellipses omitted).

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DIAZ v. B REWER

3587

Such a dramatic expansion of circuit law—particularly one beset by critical legal errors—should not have been taken without considered reflection by a larger cohort of our court. I respectfully dissent from the regrettable failure of our court to rehear this case en banc.

I

Until 2008, the State of Arizona limited state-employee dependent-partner health benefits to dependent spouses. In April of that year, Arizona’s administrative code was amended to extend such benefits to qualified domestic partners, whether of the same or opposite sex as the state employee. 656 F.3d at 1010; see Ariz. Admin. Code R2-5101(22) (Apr. 25, 2008) (for purposes of granting benefits to state employees, a “domestic partner” is one who, among other requirements, had shared a residence with the state employee for at least 12 consecutive months before applying for benefits, was financially interdependent with the employee, and was not married or in another domestic-partner relationship).

Soon after this amendment was made, the State began to deal with a severe budget crisis. The State had a projected $400 million deficit in June 2008 and a reported $1.6 billion deficit by early 2009. As part of a budget reconciliation bill addressing that crisis, in 2009 the state legislature enacted Section O, which limits state-employee dependent-partner health benefits to employees’ spouses. 656 F.3d at 1010; see Ariz. Rev. Stat. § 38-651(O). Section O would have halted such benefits for dependent domestic partners, whether of the opposite or the same sex as the state employee.

The plaintiffs are several gay and lesbian state employees with committed domestic partners. They filed suit in November 2009 seeking a declaration that Section O violates the equal protection and due process clauses of the Fourteenth Amendment and an order permanently enjoining Section O

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3588

DIAZ v. B REWER

from being enforced. In July 2010 the district court preliminarily enjoined Section O as a likely violation of the equal protection clause. 727 F. Supp. 2d 797 (D. Ariz. 2010).

The panel affirmed the preliminary injunction. Although Section O on its face applies to employees in both oppositesex and same-sex domestic partner relationships, it concluded that the provision drew an irrational classification because opposite-sex partners could escape Section O’s effect by marrying, whereas same-sex couples in Arizona may not do so because the state constitution limits marriage to unions between one man and one woman. See 656 F.3d at 1014. The panel rejected the State’s argument that Section O is justified by the State’s pressing need to cut costs in the face of a historic budget crisis. It reasoned that “the savings depend upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review.” Id. The panel rejected all other justifications for Section O, condemning it as an “arbitrary” law that “adversely affects [a] particular group[ ] that may be unpopular.” Id. at 1013.

II

With respect, I suggest that the panel’s equal protection analysis suffers from two significant errors.

A

The panel disregarded the requirement that a plaintiff alleging an equal protection violation must show that state action “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Wayte v. United States , 470 U.S. 598, 608 (1985) (emphasis added).

For nearly fifty years the Supreme Court has made clear that its cases “have not embraced the proposition that a law or other official act, without regard to whether it reflects a . . .

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discriminatory purpose, is unconstitutional solely because it has a . . . disproportionate impact. ” Washington v. Davis, 426 U.S. 229, 239 (1976); see, e.g., City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) ( “We have made clear that proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”) (brackets and internal quotation marks omitted); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 265 (1977) (same).

The panel side-stepped this fundamental proposition. It cited no evidence that Section O was adopted with an intent to discriminate. The panel instead embraced the district court’s rationale that the law violated equal protection because of its supposed disparate impact. But as the cases just cited make clear, such a showing could not alone invalidate Section O on equal protection grounds even under the highest level of judicial scrutiny.

Rather than apply that settled law, the panel concluded that United States Department of Agriculture v. Moreno , 413 U.S. 528 (1973), required a different result because (in the panel’s view) Section O “adversely affects [a] particular[ ] group that may be unpopular. ” 656 F.3d at 1013. Moreno struck down as irrational an amendment to the Food Stamp Act that rendered ineligible for assistance any household containing a person unrelated to any other member of the household. Taking stock of legislative history “indicat[ing] that th[e] amendment was intended to prevent so-called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program, ” the Court concluded that the amendment was motivated by “a bare congressional desire to harm a politically unpopular group,” which “cannot constitute a legitimate governmental interest.” 413 U.S. at 534 (emphasis added; other emphasis omitted). Moreno did not rest only on the law’s adverse effect; rather, it applied the equal protection principles set forth above to strike down a law motivated by a discriminatory purpose.

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There is no such evidence that Section O was motivated by animus. Section O’s context and history bears out that it rests entirely on budgetary considerations. Until 2008, Arizona limited state-employee dependent-partner health benefit coverage to spouses. In 2008 it briefly relaxed that limitation. The very next year, in the face of its budget crisis, Arizona decided to return to its previous policy. That decision does not show animus, actual or implied. Nor does Section O’s supposed disparate impact on gays and lesbians. Indeed, Section O most likely would burden many more opposite-sex than same-sex couples because many more opposite-sex partners would stand to lose their benefits. See 727 F. Supp. 2d at 800. To conclude that the law will disproportionately affect samesex couples would require one to assume that the vast majority of affected opposite-sex domestic partners would marry just to preserve their benefits. Though the panel seemed to credit that assumption, see 656 F.3d at 1014, the Arizona legislature was entitled (particularly under rationality review, see infra Part II-B) to presume that Section O would not spur a mass rush into matrimony.

The plaintiffs here have simply not shown—as was their burden, see Wayte, 470 U.S. at 608—that Section O was motivated by a discriminatory intent. They have not even shown a likely disparate effect that would harm them. The panel therefore erred in finding a likely equal protection violation.

B

The panel also erred in holding that Section O cannot withstand rational basis review. Even in cases applying a robust form of rationality review, the Supreme Court has made clear that a legislative classification must be upheld “so long as it bears a rational relation to some legitimate end. ” Romer v. Evans, 517 U.S. 620, 631 (1996). Those challenging a classification on rational basis grounds “have the burden to negat[e] every conceivable basis which might support it. ” FCC v.

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Beach Commc’ns, Inc. , 508 U.S. 307, 315 (1993) (internal quotation marks omitted).

Here, the cost-savings rationale offered by the State was sufficient to justify Section O. In 2008 and 2009, Arizona faced a severe budget crisis. The State therefore enacted a budget reconciliation bill that, among other cost-reduction measures, tightened state-employee dependent-partner benefits. Section O would have generated significant cost savings. In the 2008-2009 plan year, domestic partner healthcare claims cost the State more than $4.07 million; when the district court granted the preliminary injunction, those claims had already cost the State more than $5.49 million in the 2009-2010 plan year. 727 F. Supp. 2d at 812.

The panel nonetheless held that Section O is not rationally related to cost saving because, in the panel’s view, “the savings depend upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review. ” 656 F.3d at 1014. But that is clearly wrong as a matter of fact: The cost savings depend on no such distinction. To the contrary, the savings will come mostly from discontinuing benefits to opposite-sex domestic partners because only “[a] small fraction ” of those receiving domestic partner benefits are in a same-sex partnership. 727 F. Supp. 2d at 800.

Had the panel faithfully represented how Section O operates, it could not have condemned it as irrational. As already explained, the legislature was entitled to believe that most employees in opposite-sex domestic partner relationships would not sprint to marry, and thus it was entitled to believe that the lion’s share of the savings would come from ending coverage for opposite-sex couples. The panel was obliged to credit that determination and to uphold the law.

III

Beyond the damage done to established Fourteenth Amendment law, the panel decision threatens to dismantle constitu-

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tional, statutory, and administrative provisions in those states that wish to promote traditional marriage. 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.

Both states and the federal government have long sought to embody, in the law, our Nation’s deep-rooted respect for traditional marriage. See, e.g., 28 U.S.C. § 1738C; Reynolds v. United States, 98 U.S. 145, 164-66, 168 (OT 1878); Adams v. Howerton, 673 F.2d 1036, 1039-40, 1042-43 (9th Cir. 1982); Baker v. Nelson , 191 N.W.2d 185, 185-87 (Minn. 1971). In the past decade alone, many states have amended their constitutions to affirm that respect and to fortify the protections of traditional marriage1 notwithstanding that some states have voted to extend the status of marriage to same-sex couples. 2

Arizona voters made clear their desire to protect this fundamental institution when, in November 2008, they amended their constitution to define marriage as between one man and one woman. See Ariz. Const. art. XXX, § 1. Section O accords with their choice to recognize legally only traditional marriage.

By concluding that Section O lacks any rational basis, the panel condemned the considered views of Arizona’s voters and all others who wish to promote traditional marriage

1See, e.g., Fla. Const. art. I, § 27 (2008); Ga. Const. art. I, § 4, ¶ I (2004); Idaho Const. art. III, § 28 (2006); Kan. Const. art. XV, § 16 (2005); Ky. Const. § 233A (2004); Mich. Const. art. I, § 25 (2004); Mo. Const. art. I, § 33 (2004); Nev. Const. art. I, § 21 (2002); N.D. Const. art. XI, § 28 (2004); Okla. Const. art. II, § 35 (2004); Or. Const. art. XV, § 5a (2004); Tex. Const. art. I, § 32 (2005); Wis. Const. art. XIII, § 13 (2006).
2See, e.g., 2012 Md. Laws Ch. 2 (H.B. 438); Vt. Stat. Ann. tit. 15, § 8 (2009).

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through the law. Without any supporting evidence, the panel berated that choice as animated by “a bare desire to harm a politically unpopular group.” 656 F.3d at 1015 (internal quotation marks and ellipses omitted). That combustive conclusion will spur challenges to other state constitutional and statutory provisions that protect—indeed, even recognize— traditional marriage. No such laws are now safe in the Ninth Circuit: they are all, by the panel’s judicial declaration, begotten from bigotry.

The panel’s bottom-line conclusion—that rules benefitting only traditional marriage serve no conceivable rational purpose—also clashes with Supreme Court precedent, with our own case law, and with decisions of other federal and state appellate courts holding that laws recognizing or promoting traditional marriage do not violate the federal Constitution. See, e.g., Baker v. Nelson , 409 U.S. 810 (1972) (dismissing for want of a substantial federal question the appeal from Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)); Adams, 673 F.2d at 1042-43; Citizens for Equal Protection v. Bruning, 455 F.3d 859, 871 (8th Cir. 2006); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973); Baker, 191 N.W.2d at 185-87. Rather than showing similar respect for voters’ choices, the panel in this case stripped our circuit’s citizens of the right to embody their long-accepted, long-heralded, and long-cherished beliefs about marriage in their laws.

This case is in some ways even more breathtaking than our recent decision in Perry v. Brown, Nos. 10-16696, 11-16577, ___ F.3d ___, 2012 WL 372713 (9th Cir. Feb. 7, 2012). Perry struck down an amendment to California’s constitution that restricted marriage to unions between a man and a woman. But the Perry majority said that it was “address[ing] no . . . question” regarding “the constitutionality of any ban on samesex marriage,” and was instead examining “whether the people of a state may by plebiscite strip a group of a right or benefit, constitutional or otherwise, that they had previously enjoyed on terms of equality with all others in the state. ” Id.

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at *17 n.14. By holding here that opposite-sex-only marriage rules serve no rational purpose, the panel decided an issue that bears directly—perhaps dispositively—on the broad question expressly left open in Perry.

IV

The panel opinion conflicts with long-settled principles of equal protection law. 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.

If our court were going to break so dramatically from longstanding practice and tradition—and divide ourselves from the weight of authority on a matter that is so important—we should have done so only after reconsidering this matter en banc.

I respectfully dissent.

 
 Case 2:09-cv-02402-JWS Document 68 Filed 01/22/13 Page 1 of 4

1 Tara L. Borelli (Pro Hac Vice)

2

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

3 3325 Wilshire Boulevard, Suite 1300

Los Angeles, California 90010 4 tborelli@lambdalegal.org

5 Telephone: 213.382.7600

6 Daniel C. Barr (#010149)

7

Kirstin T. Eidenbach (#027341) PERKINS COIE LLP

8 2901 North Central Avenue, Suite 2000

Phoenix, Arizona 85012-2788 9 DBarr@perkinscoie.com

10 KEidenbach@perkinscoie.com Telephone: 602.351.8000

11

Attorneys for Plaintiffs Tracy Collins, Keith B. 12 Humphrey, Joseph R. Diaz, Beverly Seckinger, Stephen

13 Russell, Deanna Pfleger, Corey Seemiller, Carrie Sperling and Leslie Kemp

14

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16

UNITED STATES DISTRICT COURT

17

DISTRICT OF ARIZONA

18

19 Tracy Collins, et al.,

20

Plaintiffs,

21

v.

22 Janice K. Brewer, in her official capacity as 23 Governor of the State of Arizona, et al.,

No. 2:09-cv-02402 JWS
STATUS REPORT ON PETITION FOR WRIT OF CERTIORARI

24

Defendants.

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Case 2:09-cv-02402-JWS Document 68 Filed 01/22/13 Page 2 of 4

1

On December 11, 2012 this Court requested that Defendants file a report by

2 January 15, 2013 describing the status of the petition for a writ certiorari (“Petition”)

3 Defendants filed with the United States Supreme Court on July 2, 2012. Dkt. 67.

4 Because it appears that no report has yet been filed, Plaintiffs respectfully submit this

5 report to assist the Court.

6

Defendants’ Petition was originally distributed for consideration at the Supreme

7 Court’s September 24, 2012 conference. The Supreme Court subsequently deferred the

8 Petition for consideration until December 7, 2012, so that the Petition could be reviewed

9 with others raising constitutional challenges to (i) California’s exclusion of same-sex

10 couples from civil marriage or to (ii) Section 3 of the federal “Defense of Marriage Act.”

11 Hollingsworth v. Perry, No. 12-144 (filed July 30, 2012); Bipartisan Legal Advisory

12 Group of the House of Representatives v. Gill, No. 12-13 (filed June 29, 2012); Office of

13 Personnel Management v. Golinski, No. 12-16, (filed July 3, 2012); Windsor v. United

14 States, No. 12-63 (filed July 16, 2012); Pedersen v. Office of Personnel Management, No.

15 12-302 (filed Aug. 21, 2012). On December 7, 2012, the Supreme Court granted

16 certiorari in Hollingsworth and Windsor, but took no action on the Petition in this case.

17 Hollingsworth, cert. granted, 81 U.S.L.W. 3324 (U.S. Dec. 7, 2012) (No. 12-144);

18 Windsor, cert. granted, 81 U.S.L.W. 3324 (U.S. Dec. 7, 2012) (No. 12-307). The Petition

19 in this case is therefore still pending before the U.S. Supreme Court and the Supreme

20 Court is not anticipated to take further action on the Petition in this matter until decisions

21 are issued in Hollingsworth and Windsor, which are expected to be issued by the end of

22 the Supreme Court’s term in June of 2013.

23 ///

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27 ///

28 ///

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Case 2:09-cv-02402-JWS Document 68 Filed 01/22/13 Page 3 of 4

1 Dated: January 22, 2013

2 LAMBDA LEGAL DEFENSE

AND EDUCATION FUND, INC.

3

Tara L. Borelli

4

3325 Wilshire Blvd., Ste. 1300

Los Angeles, California 90010

5

By: s/ Tara L. Borelli

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PERKINS COIE LLP Daniel C. Barr Kirstin T. Eidenbach 2901 North Central Avenue, Ste. 2000 Phoenix, Arizona 85012-2788
Attorneys for Plaintiffs Tracy Collins, Keith B. Humphrey, Joseph R. Diaz, Beverly Seckinger, Stephen Russell, Deanna Pfleger, Corey Seemiller, Carrie Sperling and Leslie Kemp
-3-

Case 2:09-cv-02402-JWS Document 68 Filed 01/22/13 Page 4 of 4

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CERTIFICATE OF SERVICE

2

3

I hereby certify that on January 22, 2013 I electronically transmitted the attached

4 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a

5 Notice of Electronic Filing to the following CM/ECF registrants:

6 Tara L. Borelli tborelli@lambdalegal.org
7 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
8 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010
9 Attorneys for Plaintiffs 10 Daniel C. Barr
DBarr@perkinscoie.com 11 PERKINS COIE LLP
2901 North Central Avenue, Suite 200 12 Phoenix, AZ 85012-2788
Attorneys for Plaintiffs 13

Charles A. Grube charles.grube@azag.gov Alisa Blandford alisa.blandford@azag.gov Kathryn J. Winters kathryn.winters@azag.gov OFFICE OF THE ATTORNEY GENERAL 1275 West Washington Phoenix, AZ 85007 Attorneys for Defendants

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s/ Tara L. Borelli

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 Joseph R. DIAZ, Beverly Seckinger, Stephen Russell,..., 2013 WL 4813529...
2013 WL 4813529 (D.Ariz.) (Trial Pleading) United States District Court, D. Arizona.
Joseph R. DIAZ, Beverly Seckinger, Stephen Russell, Deanna Pfleger, and Corey Seemiller, on behalf of themselves and all others similarly situated, Plaintiffs, v.
Janice K. BREWER, in her official capacity as Governor of the State of Arizona; Brian McNeil, in his official capacity as Director of the Arizona Department of Administration;* and Does 1 through 100, Defendants.
No. CV09-2402-PHX-JWS. September 9, 2013.
Second Amended Complaint for Injunctive and Declaratory Relief
Tara L. Borelli (Pro Hac Vice), Lambda Legal Defense and Education Fund, Inc., 3325 Wilshire Boulevard, Suite 1300, Los Angeles, California 90010, tborelli@lambdalegal.org, Telephone: 213.382.7600, Facsimile: 213.351.6050.
Daniel C. Barr (Bar No. 010149), Kirstin T. Eidenbach (Bar No. 027341), Jerica L. Peters (Bar No. 027356), Perkins Coie LLP, 2901 North Central Avenue, Suite 2000, Phoenix, Arizona 85012-2788, DBarr@perkinscoie.com, KEidenbach@perkinscoie. corn, JPeters@perkinscoie.com, Telephone: 602.351.8000, Facsimile: 602.648.7000, Attorneys for Plaintiffs, Joseph R. Diaz, Beverly Seckinger, Stephen Russell, Deanna Pfleger, and Corey Seemiller, on behalf of themselves and all others similarly situated.
Named Plaintiffs Joseph R. Diaz, Beverly Seckinger, Stephen Russell, Deanna Pfleger, and Corey Seemiller file this Complaint against Defendants Janice K. Brewer, Brian McNeil, and Does 1 through 100 (collectively “Defendants”), and allege as follows:
I. INTRODUCTION
1. Named Plaintiffs and Plaintiff Class1 (collectively “Plaintiffs”) are lesbian and gay employees of the State of Arizona (the “State”) who seek declaratory and injunctive relief regarding the discriminatory elimination of domestic partner health insurance benefits for those lesbian and gay employees who have a committed same-sex life partner. The elimination of these employee benefits, which are a form of family insurance coverage, from the compensation provided to the State’s lesbian and gay employees violates the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983.
2. The State offers valuable employment compensation in the form of family insurance coverage to its heterosexual employees who choose to marry, which includes subsidized participation of State employees’ spouses and spouses’ qualifying children (also referred to herein as “immediate family members”) in the State’s employee group health plans.
3. In 2008, the State adopted a regulation that provided similar compensation for lesbian and gay employees in the form of similar family coverage for State employees with a committed same-sex life partner.
4. On September 4, 2009, Defendant Arizona Governor Janice K. Brewer reviewed, approved, and signed House Bill 2013 (“H.B. 2013”), a budget enactment that includes a statutory provision (“Section O”) eliminating family coverage for lesbian and gay State employees by limiting such family coverage to “spouses,” a status that Arizona has restricted to different-sex life partners only. As detailed further below, duly authorized State officials announced that Section O would apply and have
1

Joseph R. DIAZ, Beverly Seckinger, Stephen Russell,..., 2013 WL 4813529...
this effect on January 1, 2011, but have been preliminarily enjoined from enforcing Section O since July 23, 2010, pursuant to this Court’s order at Docket No. 47.
5. Named Plaintiffs are lesbian or gay State employees each of whom currently receives family coverage for his or her committed same-sex life partner, or life partner’s child. Plaintiff Class are lesbian or gay State employees who are currently eligible or may become eligible in the future to receive family coverage. The selective withdrawal of family coverage from lesbian and gay State employees-while leaving family coverage intact for heterosexual State employees with a legally recognized spouse-will deny each Plaintiff equal compensation for equal work and discriminatorily inflict upon each Plaintiff and his or her family members anxiety, stress, risk of untreated or inadequately treated health problems, and potentially ruinous financial burdens.
6. Named Plaintiffs will lose health insurance coverage for their committed life partners who need ongoing care for diabetes, high blood pressure, and asthma, among other chronic conditions. Certain Named Plaintiffs will lose family coverage for committed life partners who presently are healthy but have had serious illnesses in the past, or who fear future illness and lack the means to purchase individual insurance coverage. One Named Plaintiff will lose access to coverage for the child she co-parents with her committed life partner, who is the child’s biological mother.
7. Plaintiffs will suffer these harms based on their sexual orientation and their sex in relation to the sex of their committed life partner because the State has enacted legislation that intentionally eliminates family health insurance for lesbian and gay State employees and not heterosexual employees. As a result of the adoption and enforcement of Section O, heterosexual State employees continue to have a way of obtaining family health insurance but the only way lesbian and gay State employees have had to obtain that insurance has been eliminated. The adoption and enforcement of Section O provides that Plaintiffs’ heterosexual co-workers will receive privileged treatment-- including protection against health-related anxiety, stress, medical risk and financial hardship-based on their sexual orientation and their sex in relation to that of their committed life partners because they are offered a way to qualify immediate family members for health insurance and Plaintiffs are not.
8. There is no legitimate, let alone important or compelling, governmental interest to justify compensating lesbian and gay State employees, including Plaintiffs, unequally by denying any means to qualify immediate family members for health insurance.
9. With regard to the workplace, Plaintiffs and their same-sex life partners are similarly situated in every relevant respect to their heterosexual co-workers with different-sex life partners who are provided a way of obtaining family health insurance coverage and who, if they avail themselves of that benefit, are provided it as part of their employment compensation.
10. Plaintiffs’ employment is no less demanding, and their service to the public no less valuable, than that of their heterosexual co-workers with the same jobs who, unlike Plaintiffs, are provided a way of obtaining family health insurance coverage and, if they avail themselves of that benefit, will continue to receive family coverage as part of their compensation.
11. By denying Plaintiffs any way to qualify for family coverage upon the effective date of Section O, Defendants subject Plaintiffs to irreparable harm in the form of increased medical risks, emotional injuries, potentially ruinous financial costs, and a stigmatizing government label of inferiority imposed on each of them and all other lesbian and gay State employees, all as described below, without any adequate governmental justification.
II. PARTIES
A. Named Plaintiffs
12. Named Plaintiff Joseph R. Diaz is employed by the State as an Associate Librarian at the University of Arizona (“U of A”). Diaz is a resident of Tucson, Arizona.
2

Joseph R. DIAZ, Beverly Seckinger, Stephen Russell,..., 2013 WL 4813529...
13. Named Plaintiff Beverly Seckinger is employed by the State as a Professor of Film & Television in the School of Theatre, Film & Television, and the Head of the Film Production Division at U of A. Seckinger is a resident of Tucson, Arizona.
14. Named Plaintiff Stephen Russell is employed by the State as a professor, Fitch Nesbitt Endowed Chair in Family and Consumer Sciences in the John & Doris Norton School of Family and Consumer Sciences, Director of the Frances McClelland Institute for Children, Youth, & Families, and Interim Director of the Norton School of Family and Consumer Sciences at U of A. Russell is a resident of Tucson, Arizona.
15. Named Plaintiff Deanna Pfleger is employed by the State as a peace officer and presently serves as a Wildlife Manager III for the Arizona Game and Fish Department. Pfleger is a resident of Lake Havasu City, Arizona.
16. Named Plaintiff Corey Seemiller is employed by the State as the Director of Leadership Programs at U of A. Seemiller is a resident of Tucson, Arizona.
B. Defendants
17. Defendant Janice K. Brewer is sued in her official capacity as Governor of the State. Governor Brewer is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. As Governor, she has the duty and authority to transact all executive business with the officers of the government and the duty to ensure that the laws are faithfully executed. As Governor, she also is charged to supervise the official conduct of all executive and ministerial officers, and to ensure that all offices are filled and all duties performed. Defendant Brewer reviewed and approved Section O. She was and is directly responsible for the implementation and enforcement of Section O.
18. Defendant Brian McNeil is sued in his official capacity as Director of the Arizona Department of Administration (“the Department”). Defendant McNeil is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. As Director of the Department, Defendant McNeil is responsible for the direction, operation and control of the Department and is responsible to the Governor for the direction, control and operation of the Department. Defendant McNeil formulates policies and programs to assess, plan and effectuate the missions and purposes of the Department. He also makes contracts and incurs obligations to carry out the Department’s activities and operations, which will include direct responsibility to implement and enforce Section O’s termination of domestic partner benefits for lesbian and gay State employees with a same-sex life partner.
19. Plaintiffs are unaware of the true names of those Defendants named herein as Does 1 through 100 inclusive, and hereby seek leave of this Court to allege their true identities after they have been discovered, as though they had been correctly identified herein.
20. Each of the Defendants intentionally performed, participated in, aided and/or abetted in some manner the acts averred herein, proximately caused the harm averred herein, and will injure Plaintiffs irreparably if not enjoined.
III. JURISDICTION AND VENUE
21. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution.
22. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States.
3

Joseph R. DIAZ, Beverly Seckinger, Stephen Russell,..., 2013 WL 4813529...
23. Venue is proper in this Court under 28 U.S.C. § 1391(b) because Defendants reside within the District of Arizona and a substantial part of the events that gave rise to Plaintiffs’ claims took place within the District of Arizona.
24. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.
25. This Court has personal jurisdiction over Defendants because they are residents of the State.
IV. FACTS
A. The State Has Adopted A Discriminatory Employment Compensation System To Deny Family Coverage To Lesbian and Gay State Employees Who Are Similarly Situated To Heterosexual State Employees In All Material Respects.
26. Article 30 § 1 of the Arizona Constitution prevents lesbians and gay men from entering into a civil marriage in the State with a committed same-sex life partner and prohibits the State from honoring a civil marriage validly entered by a committed same-sex couple in another jurisdiction.
27. Article 30 § 1 does not prevent the State from providing family coverage to lesbian and gay employees, nor does it authorize employment discrimination based on sexual orientation or a person’s sex in relation to his or her life partner’s sex.
28. As part of the State’s personnel compensation system, the State provides its heterosexual employees the ability to obtain certain valuable family health benefits, including subsidized access for an employee’s different-sex spouse and qualifying children to health care coverage through the health benefits plans offered by the State to its employees.
29. Arizona Administrative Code § R2-5-101 (the “benefits regulation”) was amended in 2008 to provide, inter alia, lesbian and gay State employees, who had previously been denied access to family coverage, with the ability to obtain subsidized access for a committed same-sex life partner and the partner’s qualifying children, and thereby to obtain employment compensation equal to their heterosexual coworkers, if the lesbian or gay employee and her or his life partner satisfied rigorous standards of proof of financial interdependence.
30. Section (22)(a)-(j) of the benefits regulation provided that to qualify for family coverage, an employee must have a committed life partner who: a. Shares the employee’s permanent residence;
b. Has resided with the employee continuously for at least 12 months and is expected to continue to reside with the employee indefinitely;
c. Does not have any other domestic partner or spouse, has not signed a declaration of domestic partnership with any other person, and has not had another domestic partner within the prior 12 months;
d. Is not a blood relative any closer than would prohibit marriage in Arizona;
e. Was mentally competent and of legal age to consent to contract when the domestic partnership began, is not acting under fraud or duress in accepting benefits; and
f. Is financially interdependent with the employee as demonstrated, for example, through joint ownership of real property or significant personal property; joint credit or bank accounts; shared debt; beneficiary designations on life insurance or retirement annuities; and written agreements to assume financial responsibility for each other.
4

Joseph R. DIAZ, Beverly Seckinger, Stephen Russell,..., 2013 WL 4813529...
31. Each Named Plaintiff has previously enrolled his or her domestic partner, or partner’s qualifying child, for family coverage during an open enrollment period. Each Named Plaintiff and his or her domestic partner, or partner’s qualifying child, met the eligibility requirements for family coverage at the time of enrollment and continues to meet those requirements.
32. Shortly after Defendant Brewer assumed the office of Governor, the State repealed the benefits regulation, effective March 7, 2009, although that did not affect the terms of the 2009 benefits plan year for which employees already had enrolled.
33. On August 20, 2009, the Arizona House of Representatives transmitted H.B. 2013 to Defendant Brewer for review, consideration and approval or rejection in her capacity as the Governor of Arizona. [A true and correct copy of House Bill 2013 is attached as Exhibit A.] H.B. 2013, amended, inter alia, A.R.S. § 38-651, the statute that authorizes the Department to procure health and accident coverage for State employees and their qualifying dependents. H.B. 2013 added to A.R.S. § 38-651 a section “O,” which provides that, “For the purposes of this section” the term “ ‘dependent’ means a spouse under the laws of this state.” Defendant Brewer reviewed, approved and then signed H.B. 2013 on September 4, 2009.
34. The purpose and effect of Section O’s restriction of family coverage to a “spouse” is to eliminate family coverage for lesbian and gay State employees with a committed same-sex life partner and qualifying children of that partner. While the benefits regulation allowed employees to receive coverage for either a same- or different-sex domestic partner, and Section O also eliminated coverage for heterosexual employees with an unmarried different-sex domestic partner, the law does not discriminatorily preclude these heterosexual employees ever from qualifying for family coverage in the future. But unlike their heterosexual co-workers who are in different-sex partnerships and can marry, lesbian and gay State employees with a same-sex life partner are entirely precluded from obtaining family coverage because Section O limits the ability to get such coverage to those who have a spouse, which excludes lesbians and gay men because current Arizona law does not allow same-sex couples to marry in the State and, if validly married in another state or country, requires that they be treated as unmarried.
35. Section O reverses the State’s policy of offering equal compensation in the form of family coverage to lesbian and gay State employees with a committed same-sex life partner.
36. The State’s exclusion of its lesbian and gay employees from access to family coverage denies those employees, including Plaintiffs, valuable and equal compensation because of each Plaintiff’s sexual orientation and sex in relation to his or her committed life partner.
37. The public policies underlying the State’s employment benefits-such as fair compensation and reducing the stress employees undergo during family health emergencies and other family crises--are equally applicable to lesbian and gay State employees who have made a life commitment to a same-sex life partner, including Named Plaintiffs, who have demonstrated the binding and committed, financially interdependent nature of their family partnerships by satisfying the State’s criteria for proving an eligible domestic partnership. It does not further these state public policies, and in fact undermines them, for the State to provide only heterosexual State employees who have a different-sex life partner with a way of qualifying for family benefits, and to provide lesbian and gay State employees with a same-sex life partner no way to do so.
38. Section O specified an intended effective date of October 1, 2009. On September 25, 2009 the Department announced on its website that “[b]ased on advice from the Office of the Attorney General” the Department would recognize November 24, 2009 as the effective date for the statute. The Department’s announcement also provided that, “[a]ny benefit that has been earned and vested through November 24, 2009, is not subject to being taken away retroactively to October 1, 2009.” The announcement stated that, “[o]ther questions raised by H.B. 2013, such as the definition of dependent and its applicability after November 24, 2009, are still under review,” and that further information would be posted on the Department’s website after the review was complete. [A true and correct copy of the Department’s September 25, 2009 statement is attached as Exhibit B.]
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39. On October 9, 2009 the Department posted another announcement stating that, “[b]ased upon legal advice from the Office of the Attorney General, the definition of ‘dependent’ for the State insurance plan year beginning October 1, 2009 is not affected by H.B. 2013 because any interpretation to the contrary would impair the lawful contract expectations of state employees in violation of the Arizona Constitution. The definition of ‘dependent’ currently in place will remain effective through September 30, 2010. Please note the definition of dependent defined in H.B. 2013 will apply as of October 1, 2010.” (emphasis in original). [A true and correct copy of the Department’s October 9, 2009 statement is attached as Exhibit C.]
40. Given the ongoing uncertainty about Section O’s implementation date, Named Plaintiffs sought a preliminary injunction order enjoining Defendants’ enforcement of Section O, which this Court granted on July 23, 2010.
B. Named Plaintiffs Are Similarly Situated To Heterosexual State Employees In All Material Respects And Are Injured By The Discriminatory Elimination Of Their Family Health Insurance Benefits.
41. Named Plaintiffs are highly skilled and valuable State employees whose job duties are neither different from their heterosexual co-workers nor reduced due to their sexual orientation or marital status.
42. Each Named Plaintiff seeks to maintain or restore the family coverage for his or her immediate family members that he or she currently receives or previously received and relies upon as an important part of employment compensation. Each Named Plaintiff established eligibility for such family coverage at the time of enrollment, and remains eligible at the present time. Each Named Plaintiff authorized continued pay check deductions for his or her portion of the health plan premiums, with the intent and desire to continue contributing to and receiving family coverage.
1. Named Plaintiff Joseph R. Diaz.
43. Named Plaintiff Joseph R. Diaz (“Joseph”) is an Associate Librarian at U of A, where he has worked since June 1992.
44. Joseph’s life partner is Ruben E. Jiménez (“Ruben”). They have spent more than 20 years together as a committed, loving couple and would marry if permitted by Arizona law.
45. Joseph and Ruben have intertwined all of their finances and taken steps to protect each other in the event of a crisis. They hold their checking and savings accounts jointly, and own their house as joint tenants with a right of survivorship. They have named each other as the primary beneficiary in their wills and on their retirement accounts, and as the agent in their durable health care powers of attorney. Joseph and Ruben have supported each other emotionally and financially throughout life’s challenges and have exchanged promises to continue to do so throughout the rest of their lives together.
46. When U of A began offering family coverage to lesbian and gay employees in 2008, Joseph enrolled Ruben for family coverage. Ruben then was able to leave his low-wage job with health benefits for a better-paying position without such benefits. It is essential that Joseph and Ruben have insurance coverage for Ruben because he has high cholesterol and Type 2 diabetes, a chronic, lifelong disease. Ruben requires daily medication and testing strips which would cost approximately $300.00 a month out-of-pocket, far more than Ruben’s current co-pay through Joseph’s family coverage.
47. Joseph and Ruben have investigated whether Ruben will be eligible to receive health coverage through the Arizona Health Care Cost Containment System (“AHCCCS”) Medicaid program when Joseph’s family coverage is eliminated. They are anxious about having to rely on this less desirable alternative given the ongoing uncertainty that always surrounds such coverage, such as the State’s decision in 2011 to freeze access for new childless adult applicants such as Ruben. Even if Ruben could apply for coverage, however, his average monthly income is too high to allow him to qualify based on current eligibility rates.
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48. Joseph and Ruben have consulted with a private insurance agent to ascertain whether they will be able to purchase a private insurance plan for Ruben. The agent has informed them that she could not locate any individual insurance plans in Arizona that would cover a person like Ruben with diabetes and high cholesterol.
49. The threat of losing coverage for Ruben through Joseph’s State employment places this couple under tremendous pressure and stress. They would be spared this anxiety and the risk of severe financial hardship if Joseph could remain eligible for the same compensation as his heterosexual colleagues, including continued family coverage.
2. Named Plaintiff Beverly Seckinger.
50. Named Plaintiff Beverly Seckinger (“Beverly”) is a Professor of Film & Television in the School of Theatre, Film & Television, and the Head of the Film Production Division at U of A, where she has worked since 1991. Beverly is 53 years old.
51. Beverly’s beloved life partner is Susan Taunton (“Susan”), who is 59 years old.
52. Beverly and Susan have been in an exclusive, committed relationship for more than 25 years. They own their home together as joint tenants with rights of survivorship. Beverly has named Susan as the beneficiary of Beverly’s retirement and life insurance accounts; Susan has not named Beverly as the beneficiary of such accounts only because she has none. The couple shares joint responsibility for their utility and car insurance bills.
53. Beverly and Susan registered as domestic partners with the City of Tucson in October 2005. If the State restricted family coverage to married employees and allowed same-sex couples to marry, Beverly and Susan promptly would do so.
54. When family coverage for lesbian and gay State employees became available in 2008, Beverly immediately enrolled Susan. The ability to obtain health insurance for Susan was an enormous relief for the couple because Susan suffers from acute asthma. She did not have health coverage when the couple moved to Arizona, and had a life-threatening asthma attack during that time. Susan needs medical coverage to manage the risk of similar attacks and regular doctor’s appointments to maintain her prescriptions. The cost of this medical care is less expensive through Beverly’s family coverage than if the couple had to pay out-of-pocket.
55. Susan also had a breast cancer scare in 2002. The health insurance she had as a graduate student covered much of the cost of the biopsy and related care. Susan had a similar episode in 2005 when she was uninsured. Although the condition again was benign, that experience reinforced to Beverly and Susan how vulnerable they would be without insurance coverage if Susan were to become seriously ill.
56. Susan is self-employed as a freelance website designer, and thus does not have access to health insurance through her employment.
57. Beverly has researched private insurance options for Susan multiple times. The private insurers Beverly contacted consistently have refused to insure Susan. When Beverly last checked, a private insurer informed Beverly that even if the insurer would cover Susan, which it would not guarantee, the cost would range from $700.00 a month for a $250.00 deductible, to $318.00 a month for a $3,000.00 deductible. Beverly’s current plan has no deductible.
58. Susan previously qualified for medical coverage through AHCCCS but the couple worries about having Susan rely on an uncertain source of insurance that is inferior to the State’s health coverage. Beverly and Susan strongly prefer to maintain family coverage through Beverly’s employment at U of A because the quality of coverage and care are better, and because they take pride in contributing to the cost of their care as Beverly currently does by paying a portion of the premium each month. Beverly is insulted and frustrated that she must explore coverage for her life partner through the State’s AHCCCS
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program when her heterosexual co-workers have a secure option for protecting their immediate family members.
59. Beverly feels deeply rooted in Arizona, having lived in the state for more than 25 years. Prior to the change required by Section O, Beverly had not considered uprooting her life and disrupting her commitment to U of A. But she now worries that she will have no choice but to seek employment elsewhere if she cannot maintain her family coverage for Susan.
3. Named Plaintiff Stephen Russell.
60. Named Plaintiff Stephen Russell (“Stephen”) is a professor, Fitch Nesbitt Endowed Chair in Family and Consumer Sciences in the John & Doris Norton School of Family and Consumer Sciences, Director of the Frances McClelland Institute for Children, Youth, & Families, and Interim Director of the Norton School of Family and Consumer Sciences at U of A. Stephen was actively recruited by U of A, and has been a dedicated and valuable employee since he joined the institution’s faculty in 2004. Stephen has secured $5 million in federal contracts and research grants, and over $1 million in private gifts for U of A. Stephen’s fundraising not only supports his own research, but also helps to support the work of multiple graduate students, postdoctoral scholars, and university staff. Stephen is 46 years old.
61. Stephen has formed a committed relationship with his beloved partner, William Scott Neeley (“Scott”), who is a self-employed architect and does not have health insurance coverage through his employment. Scott is 58 years old.
62. Stephen and Scott met in 1993 and within a year were sharing a home as loving, committed partners. After Stephen began teaching at the University of California, Davis in 1999, the couple registered as domestic partners with the State of California as soon as that status became available in 2000. The couple has assumed, through their state domestic partnership registration, the same rights and responsibilities as spouses under California law, including duties of financial support for each other.
63. Stephen and Scott celebrated their tenth anniversary on April 2, 2003 with their friends and family from across the country, and have considered the event to have been a public recognition of their life commitment. Each partner feels fortunate to have been warmly embraced by the other’s family, and when both of Scott’s parents passed away, Stephen was included as a full participant in the family grieving process. In April, the couple celebrated twenty years of loving commitment, and look forward to their next twenty years together. Stephen and Scott would marry each other if the State permitted them to do so.
64. Stephen and Scott have been completely financially intertwined since they began living together in 1994. As the income from Scott’s self-owned architecture business fluctuated over the years, Stephen supported the couple with his academic salary when Scott earned less. Every home the couple has owned during their relationship has been jointly titled. They have joint bank accounts, and each has named the other as the beneficiary of his retirement account. When the couple moved to Arizona, they retained an attorney to prepare agreements to protect their relationship. Stephen and Scott have named each other as the primary beneficiary in each of their wills and appointed each other to make medical decisions in case of incapacity.
65. Stephen and Scott are raising a teenage boy who joined their family in January of 2009 after suffering years of abuse and neglect.
66. In July of 2009, Scott discovered blood in his urine and needed urology care and tests to assess the possibility of prostate cancer. Having undergone a number of tests, Scott was relieved to learn that his symptoms have a benign cause, but the episode has reminded the couple of how vulnerable they would be if Scott were to contract a serious illness without health insurance coverage.
67. Stephen and Scott previously purchased an individual insurance policy for Scott, but as of fall 2008, the couple paid approximately $500.00 a month for a plan that offered only catastrophic coverage. Stephen accepted the position with U of A
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in significant part because, when he was being recruited, the university actively was pursuing family coverage for employees with a committed same-sex partner.
4. Named Plaintiff Deanna Pfleger.
68. Named Plaintiff Deanna Pfleger (“Deanna”), who is 47 years old, has been a dedicated employee of Arizona’s Game and Fish Department for more than 20 years.
69. Deanna is a State peace officer who currently serves as a Wildlife Manager III. She has a Bachelor of Science degree in Wildlife Biology, has had police officer training and certification, and has received additional training and is commissioned as a Game Ranger. Deanna’s certification authorizes her to enforce all Arizona laws, including the criminal code, but her primary responsibility is to enforce Arizona’s game and fish laws. Deanna also works as a wildlife biologist for the State. Her responsibilities include, for example, patrolling waterways, ensuring that people hunt only within legal limits, helping to execute search warrants, and monitoring species’ populations for permitting recommendations.
70. Deanna’s job often requires her to work in isolation with her nearest neighboring wardens at least an hour-and-a-half away. Both Deanna and her life partner are aware that, if Deanna were to be injured during her work, she would not have immediate assistance and would need back-up from another agency. Deanna faces particular risks when working at night to prevent poaching and illegal hunting, and when doing wildlife survey work by helicopter at low altitude and low speeds.
71. Deanna is in a committed, loving relationship with Mia LaBarbara (“Mia”), and the couple celebrated their twenty-third anniversary on Valentine’s Day in 2013. Mia is 46 years old.
72. Deanna and Mia have two children, aged 14 and 11, that they planned for and are raising together as equal co-parents.
73. Deanna and Mia have always wanted to marry each other and recently were able to fulfill that dream in California. Over their more than 20 years together, the couple has become completely interdependent emotionally and financially. They have each nursed each other through illnesses, including surgery and Deanna’s hospitalization after a car accident.
74. Deanna and Mia contribute jointly to their household expenses, and they have supported each other financially. Deanna and Mia are both named on the title and the mortgage for their home. They maintain a joint car insurance policy, and joint checking and savings accounts. Each has named the other as the beneficiary of her retirement account. Recognizing the risk inherent in her work, Deanna has purchased additional life insurance to help provide for the family, and Mia is named as the primary beneficiary. Deanna and Mia have prepared agreements and other legal documents to protect their family, and they have each named the other as the primary beneficiary in their wills, and as each other’s representative for health care decisions. Deanna, the biological mother of the couple’s two children, has named Mia as the guardian of both children in her will.
75. Mia had worked for more than 12 years as a Regional Interpretive Planner with the Interpretive Education Department of the Arizona State Parks, until she was laid off in October of 2009. Mia currently works as a seasonal Park Ranger with limited hours that do not qualify her for health insurance.
76. Mia is likely to have difficulty qualifying for coverage through AHCCCS because it appears that her part-time salary exceeds the income eligibility requirements. After Section O was enacted, Deanna researched the cost of insuring Mia through a private health insurance plan but was informed that the least expensive plan, for a $64.00 monthly premium, would come with a $14,000.00 deductible. The plan with the lowest deductible, of $3,000.00, would cost the couple $171.00 per month, an amount this family of four can ill afford now that Mia is only employed part-time. The family coverage Deanna receives through her employment carries no deductible. Far more frightening for the couple, Deanna has learned that Mia’s diagnosis of high blood pressure means that her application for private insurance would not even be considered by at least some insurers.
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77. The enactment of Section O came at a particularly stressful time for the couple. Mia began experiencing significant abdominal pain in spring of 2009, which required undergoing numerous tests. In July of 2009 Mia had an episode so acute that she required treatment from an emergency room.
78. During the course of her tests, Mia’s doctor came to suspect that she may have had ovarian cancer. While she was not ultimately diagnosed with cancer, Mia has since had both ovaries removed at her doctor’s recommendation to guard against that risk. Deanna and Mia are particularly worried about this development because Mia previously was diagnosed as being at heightened risk for colon cancer. Mia requires a colonoscopy to monitor her condition every three to five years, which would cost approximately $3,500.00 out-of-pocket, far more than the $50.00 co-pay under Deanna’s family coverage.
79. Deanna and Mia find the prospect of coping with the need for ongoing cancer screening and the possibility of a cancer diagnosis, all without family coverage, to be extremely stressful and threatening medically, emotionally and financially.
80. Upon information and belief, allowing Deanna to continue receiving family coverage through the family plan would not cost the State any additional amount in insurance premiums. Deanna already purchases a “family plan” that covers Deanna and her two biological children. Upon information and belief, there is no additional cost, for either the employee or the State, to include an additional family member to that plan.
5. Named Plaintiff Corey Seemiller.
81. Named Plaintiff Corey Seemiller (“Corey”) is the Director of Leadership Programs at the U of A, and she has worked full-time for the university since July of 2002. Corey oversees U of A’s leadership courses and Minor in Leadership Studies and Practice; the Arizona Blue Chip Program, a four-year leadership program that serves 450 students; the ATLAS Leadership Program, a workshop-based program that serves 500 students; and several other conferences, retreats, trainings, and programs that serve more than 7,000 students annually. Corey has a unique and specialized knowledge of U of A’s leadership programming because she has designed 17 of U of A’s leadership courses housed in the College of Education, and the university is now relying on her specialized expertise to coordinate and instruct in the Minor in Leadership Studies and Practice. Corey is 39 years old.
82. Corey’s committed life partner is Karrie Mitchell (“Karrie”). Karrie is a counselor at Pima Community College, and is 37 years old.
83. Corey and Karrie have been a loving, committed couple since June of 2002, and have made a life-long pledge to care for and support each other. They registered as domestic partners with the County of Pima on April 16, 2004, followed by a commitment ceremony to celebrate with family and friends. Corey and Karrie would marry each other if the State permitted them to do so.
84. Corey and Karrie have blended their financial assets and responsibilities and are completely interdependent financially. The couple has jointly owned their home since 2003, and jointly purchased an investment property in 2012. They maintain joint checking and savings accounts as well as a joint investment account for their daughter’s college fund. They treat all of their household expenses as mutual. They have each purchased life insurance and named the other as the beneficiary. The couple has executed power of attorney forms authorizing each other to make medical and financial decisions in the event of the other’s incapacity and created a trust together.
85. Corey and Karrie have a four-year-old daughter, K.S.M. The couple planned every aspect of Karrie’s pregnancy together and they have equally parented K.S.M. since she was born.
86. Karrie is the biological mother of K.S.M. Because Corey and Karrie were advised that Arizona’s statutes currently do not permit a lesbian or gay co-parent to adopt a child without terminating the existing legal parent’s rights, Corey has been
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unable to secure her relationship to K.S.M. through adoption. Corey and Karrie accordingly have taken additional life planning steps to provide as much security as possible to their child, including executing a co-parenting agreement and a power of attorney document that allows Corey to make decisions about K.S.M.’s medical care and education, and creating a trust so that K.S.M. is financially provided for in the event that either Corey or Karrie passes away.
87. When K.S.M. was born, the couple initially enrolled her to receive health coverage through Karrie’s employment, but quickly realized that the $278.52 monthly premium was unaffordable for them. Because Corey was allowed to provide family coverage to the child of her qualifying domestic partner, Corey was able to enroll K.S.M. for family coverage through U of A for a premium of $68.00 per month, which relieved the couple of an enormous financial burden. To secure the coverage for K.S.M., Corey had to submit an affidavit of domestic partnership and supporting documentation on the same terms as other State employees seeking family coverage for a committed same-sex life partner. Because Corey and Karrie continue to meet the eligibility criteria for family coverage, K.S.M. remains eligible for family coverage as a child of Corey’s domestic partner.
88. Corey and Karrie were extremely worried after H.B. 2013 was approved and signed by Defendant Brewer that the designated October 1, 2009 effective date for Section O would leave K.S.M. without health coverage unless they acted quickly to secure alternative insurance. Before the Department announced that it would recognize November 24, 2009 as the effective date for H.B. 2013, the couple arranged coverage for K.S.M. through Karrie’s employment based on the qualifying life event of K.S.M.’s expected loss of insurance, and accordingly they did not re-enroll K.S.M. for family coverage during Corey’s open enrollment period. The couple now pays approximately $300.00 per month for K.S.M.’s health care, significantly more than the approximately $60.00 the couple would pay through the plan Corey would choose for K.S.M. today.
89. Corey and Karrie continue to pay these premiums for K.S.M.’s coverage because of the uncertainty surrounding future access to the coverage. The State has posted warnings on its website that “same-sex domestic partners are ADVISED and CAUTIONED that the preliminary injunction possibly could be lifted” in this case, and in that event the State “reserves the right to immediately discontinue offering benefits to qualified same-sex domestic partners.” See http://benefitoptions.az.gov/bsd% 20eligibility3̈.html (emphasis in original). Corey and Karrie thus must shoulder the stressful burden of higher healthcare costs to ensure that their daughter is not vulnerable to a potential loss of coverage.
90. These circumstances have placed Corey and her family under significant stress that her heterosexual colleagues do not face because they can insure the qualifying child of a spouse. While Corey previously has supplemented the couple’s income with consulting work and adjunct teaching in the evenings, she felt pressed to take on many more consulting and evening teaching duties to help pay for K.S.M.’s health insurance. Given Corey’s full-time job at U of A, these additional duties are exhausting and deprive Corey of time she otherwise would spend at home with her family.
C. No Adequate Governmental Interests Exist To Justify The State’s Discriminatory Employment Compensation System.
91. Public and private employers who offer family coverage on nondiscriminatory grounds to all employees achieve a number of economic and business advantages, including the ability to attract more talented and highly skilled employees, decrease turnover, and improve employee morale and productivity.
92. In addition to the positive effects on recruitment and retention of excellent employees, many employers offer nondiscriminatory family benefits as a core part of their commitment to a diverse workforce. That the State has shared this interest in its role as an employer is evidenced by former Governor Napolitano’s Executive Order No. 2003-22 prohibiting discrimination in State employment based on sexual orientation.
93. Providing equal family coverage to lesbian and gay State employees not only fosters the important goal of diversity but allows major State employers to compete for and retain talented, trained employees.
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94. The costs of domestic partner benefits to employers generally are limited because, among other reasons, the pool of lesbian and gay employees usually is very small, and not all employees in same-sex relationships enroll for domestic partner benefits.
95. Alan Ecker, a spokesperson for the Department, reported in December of 2012 that 230 active lesbian and gay State employees were receiving domestic partner health coverage. Upon information and belief, that figure was approximately the same for 2011, when the Department reported around 128,000 total members in the State’s health plan in its 2011 Annual Report. In 2011, domestic partners thus constituted approximately 0.0017% of the State’s health plan members, or less than two-tenths of one percent. Upon information and belief, offering this important benefit to the small pool of lesbian and gay State employees who otherwise are categorically barred from family coverage because they cannot marry causes only negligible costs for the State.
96. Upon information and belief, the minimal costs of offering family coverage to lesbian and gay State employees is offset by the resulting reduced use of AHCCCS, which is more costly on average to the State than allowing employees to share the cost of their health insurance by paying a portion of the premium for family coverage. Additionally, employees receiving family coverage for a same-sex life partner are taxed by the State on the value of those benefits, unlike their heterosexual counterparts, providing the State with additional income tax revenue.
97. Public employers in Arizona have confirmed the lack of disproportionate costs of domestic partner health coverage, the related cost-savings, and the positive effects on employee retention and positive morale. Municipal employers in Arizona now offering family coverage to their lesbian and gay employees include Pima County and the Cities of Phoenix, Tempe, Scottsdale, and Tucson. Nationally, this equal compensation practice has been adopted by increasing numbers of public and private employers. At least 20 other states and the District of Columbia now offer family coverage to lesbian and gay state employees. More than eighty percent of the Fortune 100 companies offer family coverage to lesbian and gay employees, as do more than sixty percent of the Fortune 500 companies.
98. Many major private employers who compete with the State for talented, skilled employees now offer family coverage to lesbian and gay employees. A representative sampling of such companies includes American Express, Bank One, Bank of America, Banner Health Systems, Costco Wholesale, Cox Communications, Gannett, Hilton Hotels, Home Depot, Honeywell, IBM, Intel, Intuit, Marriott International, Medtronic, Morgan Stanley, Motorola, Qwest, Raytheon, Sears, Target, Texas Instruments, UPS, Walgreen’s and Wells Fargo. In addition to those national companies, dozens of private employers headquartered in Arizona that compete directly with the State for the most qualified employees offer family coverage to lesbian and gay employees. Among the twelve universities participating in the Pacific 12-Conference (a college athletic conference that operates in the western United States), Arizona State University and U of A would be the only two universities to not offer domestic partner benefits to lesbian and gay employees. Moreover, the top 10 universities ranked by U.S. News and World Report all offer domestic partner benefits, as do all Ivy League schools.
99. Section O was adopted to withdraw equal treatment from lesbian and gay State employees, including Plaintiffs, and to exclude such employees and to deem them and their families unworthy of concern and protection based on their sexual orientation and sex in relation to their respective life partner’s sex.
100. Although government may have a valid interest in cost containment, it may not pursue that interest by making invidiously discriminatory distinctions between classes of its citizens and offering valuable benefits to some, while selectively withholding those benefits from others, such as Plaintiffs here, without adequate justification for that differential treatment.
101. Although government may have a valid interest in preventing fraud in its benefits programs, the State’s domestic partner benefits program has had rigorous eligibility criteria that limit family coverage to employees in financially interdependent, committed relationships. No disproportionate fraud exists to justify the State’s discriminatory withdrawal of valuable family coverage from lesbian and gay employees with a same-sex life partner while continuing such coverage for heterosexual employees who marry.
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102. The State’s explicit policy of discrimination inflicts significant harm upon Plaintiffs, including depriving them of their constitutional right to equally respectful treatment and protection, imposing financial deprivations and emotional distress, and sending a strong message of stigma and devaluation of Plaintiffs, all because of their sexual orientation and their sex in relation to the sex of their committed life partner.
103. Employment benefits provided to employees routinely are valued at between one-fifth and one-third of total compensation. Thus, family coverage for a spouse or same-sex life partner is valuable financially as well as emotionally for most employees. The State’s deliberate elimination of domestic partner benefits, while maintaining spousal benefits and denying its lesbian and gay employees any way to qualify for family benefits, unlike their heterosexual counterparts, accordingly requires those lesbian and gay employees to perform equal work for less compensation.
104. There is no legitimate, let alone compelling, governmental interest served by denying lesbian and gay State employees, including Plaintiffs, equal compensation in the form of family coverage.
V. CLASS ACTION ALLEGATIONS
105. Named Plaintiffs bring this action on their own behalf and, pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all lesbian and gay employees of the State who are now, or will in the future, be eligible under the criteria specified in former Ariz. Admin. Code § R2-5-101 to obtain State health insurance benefits for their committed same-sex partners and their partners’ dependents (the “Plaintiff Class”).
106. The class is so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). As of December 2012, there are approximately 230 lesbian and gay State employees who receive domestic partner health insurance benefits from the State. In addition, other lesbian and gay State employees may be eligible or may qualify in the future to receive family coverage. Section 0, if enforced and implemented by Defendants, prevents all of those employees from obtaining health insurance benefits from the State for their domestic partners and their partners’ dependents.
107. There are questions of law and fact common to the members of the class. Fed. R. Civ. P. 23(a)(2). Such questions include, but are not limited to: (a) whether Defendants denied equal compensation to lesbian and gay State employees with committed same-sex partners by eliminating their family coverage but continuing family coverage for heterosexual State employees with legally recognized spouses,
(b) whether implementation and enforcement of Section O violates the Equal Protection Clause of the Fourteenth Amendment by discriminating without a legitimate justification, let alone one that is adequately tailored and important or compelling, against lesbian and gay State employees on the basis of their sexual orientation and sex in relation to the sex of their committed partners.
Defendants are expected to raise common defenses to those claims, including that implementation and enforcement of Section O does not violate the law.
108. The claims of the Named Plaintiffs are typical of those of the Plaintiff Class, see Fed. R. Civ. P. 23(a)(3), as their claims arise from implementation and enforcement of Section O and are based on the same theory of law.
109. Named Plaintiffs are capable of fairly and adequately protecting the interests of the Plaintiff Class because they do not have any interests antagonistic to the class. Named Plaintiffs as well as the Plaintiff Class all seek to enjoin implementation and enforcement of Section O by the Defendants. Moreover, Named Plaintiffs are represented by counsel experienced in civil rights litigation and complex class action litigation.
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110. This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1) because prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications, resulting in some lesbian and gay State employees receiving family coverage from the State and others who do not. In addition, prosecution of separate actions by individual members could result in adjudications with respect to individual members that, as a practical matter, would substantially impair the ability of other members to protect their interests.
111. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2) because Defendants’ implementation and enforcement of Section O will preclude all class members from obtaining family coverage from the State for their committed same-sex partners and their partners’ dependents. The injunctive and declaratory relief sought is appropriate and will apply to all members of the Plaintiff Class.
FIRST CLAIM FOR RELIEF
Equal Protection on the Basis of Sexual Orientation and Sex U.S. Const. Amend. XIV, 42 U.S.C. § 1983
112. Named Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this complaint.
113. Named Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
114. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall deny to any person the equal protection of the laws. Defendants’ conduct violates Plaintiffs’ right to equal protection of the laws, and specifically Plaintiffs’ right not to be denied equal protection on the basis of sexual orientation or sex.
115. Defendants deny equal compensation to lesbian and gay State employees by their withdrawal of domestic partner coverage, and by their categorical refusal to offer any other way for employees to qualify a same-sex life partner within the State’s family health insurance plans, with no constitutionally adequate reasons for this knowing and intentional withdrawal and refusal, unlike Defendants’ treatment of their heterosexual employees. Defendants’ conduct and omissions, and policies and practices in their establishment and administration of the health benefits plans for State employees, including in particular Defendants’ implementation of Section O, subjects Plaintiffs to intentionally differential, adverse and inferior treatment because of their sexual orientation as lesbians and gay men and because of each Plaintiff’s sex in relation to the sex of his or her committed life partner.
116. By exclusively conditioning the receipt of family coverage on the legal relationship status of “spouse,” from which lesbian and gay State employees, including Plaintiffs, categorically are excluded because of their sexual orientation and each one’s sex in relation to the sex of his or her life partner, Section O and Defendants’ actions to implement Section O discriminate against lesbian and gay employees, including Plaintiffs, both facially and as applied, based on Plaintiffs’ sexual orientation and sex.
117. All of Defendants’ acts or omissions and policies and practices alleged herein were, and if not enjoined, will continue to be committed intentionally and purposefully because of Plaintiffs’ sexual orientation and sex in relation to the sex of each one’s committed life partner.
118. Plaintiffs are similarly situated in every relevant respect to the heterosexual State employees who Defendants permit to qualify their different-sex life partners and partners’ children for family coverage through marriage.
119. Defendants’ denial of equal compensation to lesbian and gay State employees as a class by Defendants’ elimination of
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Joseph R. DIAZ, Beverly Seckinger, Stephen Russell,..., 2013 WL 4813529...
domestic partner benefits, and by Defendants’ categorical refusal to allow State employees any means to qualify a same-sex life partner or partner’s children for family coverage, reflects moral disapproval and antipathy toward lesbians and gay men, including Plaintiffs, serves no legitimate government interest and is, therefore, invalid under any form of constitutional scrutiny.
120. Defendants’ intentional stripping of family coverage from lesbian and gay State employees, including Plaintiffs, and denial to that class of employees of any way to qualify for family coverage for a same-sex life partner or partner’s children, purposefully singles out a minority group that historically has suffered unjust and discriminatory treatment in law and society based on group members’ sexual orientation and sex in relation to the sex of each one’s committed life partner.
121. Defendants’ categorical denial of equal compensation to Plaintiffs based on their sexual orientation and sex in relation to the sex of each one’s committed life partner subjects Defendants’ conduct to strict or at least heightened scrutiny, which Defendants’ conduct cannot withstand because Defendants’ conduct does not even serve any legitimate governmental interests, let alone any important or compelling such interests, nor does it serve any such interests in an adequately tailored manner.
122. Defendant Brewer, through her own individual actions, has acted personally, purposefully and intentionally to violate Plaintiffs’ rights to equal protection under the Fourteenth Amendment to the United States Constitution. Defendant Brewer acted with discriminatory purpose in approving Section O and did so because of Section O’s adverse effects on lesbian and gay State employees, including Plaintiffs, based on their sexual orientation and sex in relation to the sex of each one’s committed life partner.
123. Defendant Brewer acted personally, purposefully and intentionally when she reviewed and approved Section O by signing H.B. 2013, thereby knowingly and deliberately effectuating that section’s purpose of limiting family coverage to heterosexual employees, who can qualify if they have a different-sex spouse, and stripping lesbian and gay State employees of any way to obtain family coverage.
124. Upon information and belief, Defendant Brewer has the duty and authority to ensure that the Department implements Section 0, and through her own individual actions, has acted and, if not enjoined, will continue to act personally to violate Plaintiffs’ right to equal protection by implementing Section O to strip Plaintiffs discriminatorily of access to family coverage for a committed same-sex life partner, thereby proximately causing them injury.
125. Defendant Brewer, having acted personally, purposefully and intentionally to review and approve Section O by signing H.B. 2013, directly caused actions by others to enforce and implement Section O which Defendant Brewer knew, or reasonably should have known, would cause others to inflict these constitutional injuries upon Plaintiffs. Upon information and belief, Defendant Brewer knowingly has refused to prevent anticipated action by others who are charged to implement State law and policies under her supervision, including Section O’s elimination of family coverage for Plaintiffs, is culpable for her actions and inactions in her supervision and control of subordinates who will unconstitutionally deprive Plaintiffs of family coverage, has caused and acquiesced in this constitutional deprivation to be effectuated by her subordinates, and has engaged in conduct demonstrating a reckless and callous indifference to the constitutional rights of Plaintiffs.
126. If not enjoined, Defendant McNeil, through his own individual actions, will act personally to violate Plaintiffs’ rights to equal protection under the Fourteenth Amendment to the United States Constitution by implementing and directing subordinates to implement Section O to discriminatorily strip Plaintiffs of access to family coverage, thereby proximately causing them injury. Defendant McNeil will act personally and with discriminatory purpose and intent in enforcing Section O because of Section O’s adverse effects on lesbian and gay State employees, including Plaintiffs, based on each Plaintiff’s sexual orientation and sex in relation to the sex of his or her committed life partner.
127. Defendant McNeil has direct and personal responsibility for the direction, operation and control of the Department, and is responsible to the Governor for the direction, control and operation of the Department, which includes formulating plans and programs, and making contracts, to implement employment policies required by statute, such as and specifically including Section O. In this capacity, unless enjoined, Defendant McNeil will be personally involved in decisions and actions
15

Joseph R. DIAZ, Beverly Seckinger, Stephen Russell,..., 2013 WL 4813529...
that will violate Plaintiffs’ right to equal protection by implementing Section O and discriminatorily stripping Plaintiffs of family coverage, thereby proximately causing them injury.
128. Defendant McNeil, upon acting personally, purposefully and intentionally to enforce Section 0, has or will set in motion acts by others to enforce and implement Section O which Defendant McNeil knows, or reasonably should know, will cause others to inflict these constitutional injuries upon Plaintiffs. Upon information and belief, Defendant McNeil knowingly has refused to prevent anticipated action by others under his supervision to implement Section O, is culpable for his actions and inactions in his supervision and control of subordinates who are charged to implement Section 0, has acquiesced in this constitutional deprivation to be effectuated by his purposeful actions and those of his subordinates, and has engaged in conduct demonstrating a reckless and callous indifference to the constitutional rights of Plaintiffs to be treated equally in their compensation, including an equal opportunity to qualify immediate family members for health coverage.
129. Upon information and belief, Does 1 through 100 are in some manner responsible and culpable for Plaintiffs’ injuries, and if not enjoined will act personally to violate Plaintiffs’ rights to equal protection under the Fourteenth Amendment to the United States Constitution.
130. Section O’s categorical denial of equal compensation in the form of family coverage for lesbian and gay State employees with a committed same-sex life partner, and Defendants’ conduct and omissions and policies and practices to effectuate Section O’s withdrawal of this coverage from this class of State employees, impairs Plaintiffs’ protected liberty interest in having an intimate relationship with another consenting adult as part of each Plaintiff’s private life on the discriminatory basis of Plaintiffs’ sexual orientation and sex with respect to the sex of each one’s life partner. Defendants have previously and are now discriminating against lesbian and gay State employees, including Plaintiffs, based on sexual orientation with respect to the exercise of Plaintiffs’ fundamental rights. Discriminatory treatment based on Plaintiffs’ sexual orientation and sex, and with respect to Plaintiffs’ exercise of fundamental rights, subjects Defendants’ conduct to strict or at least heightened scrutiny, which Defendants’ conduct cannot withstand.
131. The categorical denial of equal compensation in the form of family coverage to lesbian and gay State employees with a committed same-sex life partner violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Defendants have been and are acting under color of state law at all relevant times in their implementation of Section O and their resulting and purposeful violation of Plaintiffs’ constitutional rights. Defendants’ actions and omissions, and practices and policies, both facially and as applied to Plaintiffs, violate Plaintiffs’ clearly established constitutional rights, of which a reasonable person would have known, to equal treatment without regard to sexual orientation or sex, under the Fourteenth Amendment to the United States Constitution.
DECLARATORY AND INJUNCTIVE RELIEF
28 U.S.C. § 2201, Federal Rules of Civil Procedure, Rules 57 and 65
132. Named Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this complaint.
133. This case presents an actual case or controversy because there is an existing, ongoing, real and substantial controversy between Named Plaintiffs and Defendants, who have adverse interests. This controversy is sufficiently immediate, substantial and real to warrant the issuance of a declaratory judgment because Plaintiffs will be stripped of family coverage when the law is enforced by Defendants.
134. This case is ripe for consideration because it presents issues suitable for an immediate and definitive determination of the legal rights of the parties in this adversarial proceeding, and Plaintiffs will each be subjected to irreparable injury and significant hardship if this dispute is not heard before Plaintiffs’ family coverage is eliminated.
16

Joseph R. DIAZ, Beverly Seckinger, Stephen Russell,..., 2013 WL 4813529...
135. Plaintiffs’ claims are not speculative or hypothetical, but rather involve the validity of a statute that was approved and put into force by Defendant Brewer; will be implemented and enforced by Defendants Brewer, McNeil, and Does 1 through 100; will apply to all lesbian and gay State employees with a committed same-sex partner and each Plaintiff; will control each Plaintiff’s ability to continue receiving family coverage for his or her committed same-sex life partner or partner’s child; and will deprive Plaintiffs of the constitutional rights pleaded herein.
136. The injury Plaintiffs will suffer if Section O were enforced is real, immediate, actual, concrete and particularized and is not just threatened but certain. No further events need take place to determine that Defendants will enforce Section O if permitted. Defendants Brewer’s, McNeil’s, and Does 1 through 100’s direct and personal involvement in enforcing Section O have and will proximately cause Plaintiffs’ irreparable injuries.
137. Named Plaintiffs seek permanent injunctive relief to protect their constitutional rights and avoid the injuries described above. A favorable decision enjoining Defendants would redress and prevent the irreparable injuries to Plaintiffs as identified herein.
138. The irreparable injuries Plaintiffs will suffer absent injunctive relief have no adequate remedy at law or in equity. An injunction is the only way of adequately protecting Plaintiffs from harm because no legal or equitable remedy could effectively cure or compensate for the invasion of Plaintiffs’ constitutional rights, the bodily harm Plaintiffs’ same-sex life partners or partner’s child or children will suffer in the absence of family coverage to address their urgent, ongoing health needs, and the emotional harms of anxiety about family members and of government-imposed rejection and exclusion of one’s family.
139. The burden on the State of maintaining family coverage for its lesbian and gay employees will be minor, given the small number of such employees who are eligible and who have enrolled for family coverage, and the negligible cost of providing the family coverage, whereas the hardship for Plaintiffs of going without access to this insurance coverage is extreme, and subjects Plaintiffs to enormous financial hardship and risk of potential catastrophe in the event of a partner’s serious illness. The balance of hardships thus tips strongly in favor of Plaintiffs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:
A. Declaring that the suit is maintainable as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(1) and (2);
B. Declaring that the provisions and enforcement by Defendants of the portion of A.R.S. § 38-651(0) that limits eligibility for family coverage to State employees that have a “dependent” who is a “spouse,” and by extension, a spouse’s child, to the exclusion of lesbian and gay State employees with a committed same-sex life partner, violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution;
C. Permanently enjoining enforcement by Defendants of the portion of A.R.S. § 38-651(0) that limits eligibility for family coverage to State employees that have a “dependent” who is a “spouse,” and by extension, a spouse’s child, to the exclusion of lesbian and gay State employees with a same-sex life partner, including Plaintiffs;
D. Requiring Defendants in their official capacities to maintain family coverage, on terms equal to the family coverage Defendants offer to heterosexual State employees who marry a different-sex life partner, for Plaintiffs’ qualifying domestic partners and domestic partners’ children;
E. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
17

Joseph R. DIAZ, Beverly Seckinger, Stephen Russell,..., 2013 WL 4813529...

F. Granting such other and further relief as the Court deems just and proper. Dated: September 9, 2013 PERKINS COIE LLP Daniel C. Barr Kirstin T. Eidenbach Jerica L. Peters LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. By: s/ Tara L. Borelli Tara L. Borelli 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 Attorneys for Plaintiffs Joseph R. Diaz, Beverly Seckinger, Stephen Russell, Deanna Pfleger, and Corey Seemiller, on behalf of themselves and all others similar situated

Footnotes

*

Pursuant to Federal Rule of Civil Procedure 25(d), Brian McNeil is substituted for his predecessor, David Raber.

1

Plaintiff Class is fully defined in Section V.

18

 
 Case 2:09-cv-02402-JWS Document 98 Filed 12/23/13 Page 1 of 2

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8 Joseph R. Diaz, Beverly Seckinger, Stephen Russell, Deanna Pfleger, and Corey Seemiller,
9 on behalf of themselves and all others similarly situated,
10 Plaintiffs,
11 v.
12 Janice K. Brewer, personally and in her official
13 capacity as Governor of the State of Arizona; et al.,
14 Defendants.
15

No. CV09-02402-PHX-JWS ORDER GRANTING PLAINTIFFS’ UNOPPOSED MOTION FOR CLASS CERTIFICATION

16 The Court, after reviewing Plaintiff’s Unopposed M otion for Class Certification,
17 hereby orders as follows:
18 1. The Court finds that Plaintiffs meet the requirements to certify the putative
19 class under Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. This action
20 is certified as a class action under Rule 23(b)(2) on behalf of the following Class:
21 All lesbian and gay employees of the State who are now, or
22 will in the f uture, be eligible under the cr iteria specified in
23 former Ariz. Admin. Code § R2-5-101 to obtain State health
24 insurance benefits for their committed same-sex partners and
25 their partners’ dependents.
26 2. For good cause shown, the Court appoints Plaintiffs Joseph R. Diaz, Beverly
27 Seckinger, Stephen Russell, and Deanna Pfleger as Class representatives.
28

43670-0003/LEGAL28778576.1

Case 2:09-cv-02402-JWS Document 98 Filed 12/23/13 Page 2 of 2

1 3. After considering the factors set forth in Federal Rule of Civil

2 Procedure 23(g)(1)(A), and f or good cause shown, the Court app oints Lambda Legal

3 Defense and Education Fund, Inc. and Perkins Coie LLP as Class counsel.

4 IT IS SO ORDERED.

5

DATED this 23rd day of December 2013.

6

7

/s/ JOHN W. SEDWICK

8

UNITED STATES DISTRICT JUDGE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

43670-0003/LEGAL28778576.1

-2-

 
 Case 2:09-cv-02402-JWS Document 147 Filed 12/10/14 Page 1 of 1

1

UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ARIZONA

3 Diaz, et al. v. Brewer, et al.
4

THE HONORABLE JOHN W. SEDWICK 5

2:09-cv-2402 JWS

6 PROCEEDINGS:

ORDER FROM CHAMBERS

Date: December 10, 2014

7

At docket 140, plaintiffs ask the court to vacate the order at docket 139 pursuant 8
to which the preliminary injunction in this case is dissolved effective at midnight MST on 9
December 31, 2014. Defendants respond at docket 145, and plaintif fs reply at
10 docket 146. Oral argument would not assist the court.

11

The motion at docket 140 lacks merit. Plaintiffs and all other similarly situated

12 gay and lesbian couples may obtain the employee benefits they were awarded in the

13 preliminary injunction through marriage. This is the same manner in which

14 heterosexual couples may obtain such benefits. Plaintiffs’ motion rests on speculation
that maybe someday the United States Supreme Court will rule that there is no 15
constitutional right to same sex marriage and further speculation that such a ruling 16
would allow the State of Arizona to somehow cease recognition of gay and lesbian 17
marriages lawfully entered in the meantime. Such speculative worries do not amount to
18 a concrete dispute sufficient to create an actual case or controversy supporting
19 jurisdiction for further proceedings. The motion at docket 140 is DENIED.

20

_______

21

22

23

24

25

26

27

28

 
 Case 2:09-cv-02402-JWS Document 139 Filed 11/06/14 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Joseph R. Diaz; Beverly Seckinger; )

Stephen Russell; Deanna Pfleger;

)

and Corey Seemiller; on behalf of

)

themselves and all others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

Janice K. Brewer, personally and in )

her official capacity as Governor of the )

State of Arizona; et al.,

)

)

Defendants.

)

)

2:09-cv-2402-JWS
ORDER SETTING DATE FOR DISSOLUTION OF PRELIMINARY INJUNCTION AND CASE DISMISSAL

Based upon the parties' joint motion, and for good cause appearing,

IT IS HEREBY ORDERED that the preliminary injunction, Doc. 47, is dissolved

effective at midnight MST on December 31, 2014; and

IT IS FURTHER ORDERED that the case will be dismissed as moot at the same

time the preliminary injunction is dissolved, i.e., midnight MST on December 31, 2014,

and the case may be closed and judgment shall be entered as soon thereafter as

possible.

DATED this 6th day of November 2014.

/S/ JOHN W. SEDWICK SENIOR UNITED STATES DISTRICT JUDGE

 
 Case 2:09-cv-02402-JWS Document 138-2 Filed 10/31/14 Page 1 of 1

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8 Joseph R. Diaz; Beverly Seckinger; Stephen

9

Russell; Deanna Pfleger; and Corey Seemiller; on behalf of themselves and all others similarly

10 situated,

11

Plaintiffs,

12

v.

13

Janice K. Brewer, personally and in her official capacity as Governor of the State of Arizona;

14 et al.,

15

Defendants.

No. CV09-2402-PHX-JWS [PROPOSED] ORDER SETTING DATE FOR DISSOLUTION OF PRELIMINARY INJUNCTION AND CASE DISMISSAL

16

17

Based upon the parties’ joint motion, and for good cause appearing,

18

IT IS HERE BY ORDERED that the preliminary injunction, Doc. 47, is dissolve d

19 effective at midnight MST on December 31, 2014; and

20

IT IS FURTHER ORDERED that the case will be dismissed as moot at the same

21 time the preliminary injunction is dissolved, i.e., midnight MST on December 31, 2014,

22 and the case may be closed and judgment shall be entered as soon thereafter as possible.

23

24

25

26

27

28

 
 Case 2:09-cv-02402-JWS Document 140-1 Filed 11/20/14 Page 1 of 2

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8 Joseph R. Diaz; Beverly Seckinger; Stephen

9

Russell; Deanna Pfleger; and Corey Seemiller; on behalf of themselves and all others similarly

10 situated,

11

Plaintiffs,

12

v.

13

Janice K. Brewer, personally and in her official capacity as Governor of the State of Arizona;

14 et al.,

15

Defendants.

No. CV09-2402-PHX-JWS [PROPOSED] ORDER VACATING ORDER REGARDING DISSOLUTION OF PRELIMINARY INJUNCTION AND CASE DISMISSAL, AND MODIFYING PRELIMINARY INJUNCTION

16

17

After considering Plaintiffs’ Motion To (i) Vacate Order Regarding Dissolution Of

18 Preliminary Injunction And Case Dismissal, And (ii) Modify Preliminary Injunction, and

19 for good cause appearing,

20

IT IS HEREBY ORDERED that the Court’s order at Doc. 139 is VACATED; and

21

IT IS FURTHER ORDERED that the preliminary injunction entered at Doc. 47 is

22 modified to provide as follows:

23

1) Defendants are required to make family health insurance coverage available

24

for a State employee’s same-sex domestic partner, or same-sex domestic

25

partner’s children, to the same extent such family health insurance coverage

26

is made available to a State employee’s different-sex spouse, or different-

27

sex spouse’s children. Defendants must comply with this requirement by

28

doing at least one of the following:

Case 2:09-cv-02402-JWS Document 140-1 Filed 11/20/14 Page 2 of 2

1

a) As long as Arizona makes marriage available to same-sex couples

2

and recognizes marriages that have been validly entered by same-sex

3

couples, Arizona may comply with this order by providing family

4

health coverage to same-sex spouses and their children on the same

5

terms that it provides family health coverage to different-sex spouses

6

and their children;

7

b) In the event that Arizona no longer makes marriage available to

8

same-sex couples or no longer recognizes marriages that have been

9

validly entered by same-sex couples, Defendants are enjoined from

10

enforcing A.R.S. § 38-651(O) to eliminate family insurance

11

eligibility for a State employee’s same-sex domestic partner, or

12

same-sex domestic partner’s children, who satisfy the criteria set

13

forth in Ariz. Admin. Code § R2-6-101; and Defendants must

14

provide family coverage to each such partner or partner’s children to

15

the same extent family coverage is made available for State

16

employees’ different-sex spouses and their children.

17

2) This modified preliminary injunction shall take effect immediately upon

18

entry and shall remain in effect through at least the disposition of the

19

petitions for certiorari in any of the underlying cases decided in DeBoer v.

20

Snyder, Nos. 14-1341, 14-3057, 14-3464, 14-5291, 14-5297, 14-5818, 2014

21

U.S. App. LEXIS 21191 (6th Cir. Nov. 6, 2014). If any of the petitions for

22

certiorari are granted in those cases, or in any other case involving access to

23

or recognition of marriage for same-sex couples, this injunction shall remain

24

in effect through the Supreme Court proceedings. This injunction shall not

25

be terminated absent further order of the Court.

26

27

28

-2-

 
 No. _________ ================================================================
In The
Supreme Court of the United States
---------------------------------  ---------------------------------
JANICE K. BREWER, in her official capacity as Governor of the State of Arizona; SCOTT SMITH, in his official capacity as Director of the Arizona Department of Administration; KATHY PECKARDT, in her official capacity as Assistant Director of Human Resources for the Arizona Department of Administration,
Petitioners, vs.
JOSEPH R. DIAZ; KEITH B. HUMPHREY; BEVERLY SECKINGER; STEPHEN RUSSELL;
DEANNA PFLEGER; CARRIE SPERLING; LESLIE KEMP; COREY SEEMILLER,
Respondents.
---------------------------------  ---------------------------------
On Petition For A Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit
---------------------------------  ---------------------------------
PETITION FOR WRIT OF CERTIORARI
---------------------------------  ---------------------------------
THOMAS C. HORNE Attorney General of Arizona
PAULA S. BICKETT Chief Counsel, Civil Appeals Counsel of Record KATHLEEN P. SWEENEY Assistant Attorney General CHARLES A. GRUBE Senior Agency Counsel 1275 W. Washington Phoenix, Arizona 85007-1296 (602) 542-3333 (602) 542-8308 (fax) paula.bickett@azag.gov
Counsel for Petitioners
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

i
QUESTION PRESENTED
Did the court of appeals ignore this Court’s precedent and err in holding that Arizona Revised Statutes (A.R.S.) Section 38-651(O) (Section O) violates the Equal Protection Clause by limiting healthcare benefits to state employees’ spouses and dependents – and thus not extending such benefits to state employees’ domestic partners – given that a) Section O is facially neutral and there is no evidence that the Legislature intended to discriminate based on sexual orientation; b) Section O furthers the State’s interests in promoting marriage while also eliminating the additional expense and administrative burdens involved in providing healthcare benefits to state employees’ domestic partners; and c) the court’s reason for finding that Section O discriminates against gay and lesbian state employees was that Arizona prohibits same-sex marriage?

ii
PARTIES TO THE PROCEEDING
Petitioners, who were the Defendants-Appellants below, are Janice K. Brewer, in her official capacity as Governor of the State of Arizona, and Kathy Peckardt, in her official capacity as Assistant Director of Human Resources for the Arizona Department of Administration. Scott Smith, in his official capacity as Director of the Arizona Department of Administration, is also a Petitioner who is substituted for Defendant-Appellant David Raber under Supreme Court Rule 35(3).
Respondents, who were Plaintiffs-Appellees below, are Joseph R. Diaz, Keith B. Humphrey, Beverly Seckinger, Stephen Russell, Deanna Pfleger, Carrie Sperling, Leslie Kemp, and Corey Seemiller. Judith McDaniel was a Plaintiff below, but she is no longer a state employee and the issue is therefore moot as to her. (Pet. App. 17a n.1.)

iii
TABLE OF CONTENTS Page
QUESTION PRESENTED..................................... i
PARTIES TO THE PROCEEDING ....................... ii
TABLE OF AUTHORITIES ................................... v
PETITION FOR WRIT OF CERTIORARI ............ 1
OPINIONS BELOW ............................................... 1
JURISDICTION ..................................................... 1
CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS ...................................... 2
STATEMENT OF THE CASE................................ 3
REASONS FOR GRANTING THE PETITION..... 9
A. The Court of Appeals’ Holding that Section O Violates the Equal Protection Clause – Even Though the Statute Is Facially Neutral and There Was No Evidence of Intent to Discriminate Based on Sexual Orientation – Is Contrary to This Court’s Precedent and Conflicts with the Reasoning in State Appellate Decisions ............................ 12
B. The Court of Appeals’ Distorted RationalBasis Analysis Conflicts with State Appellate Decisions’ Rational-Basis Analysis and Lower Federal Courts Are Relying on the Court of Appeals’ Distorted Analysis .......... 21

iv
TABLE OF CONTENTS – Continued Page
C. The Court of Appeals’ Implicit Holding that the State Cannot Constitutionally Limit Marital Benefits to Unions Between a Man and a Woman Is Contrary to This Court’s Precedent and Conflicts with Other Federal and State Appellate Decisions ....... 28
CONCLUSION ....................................................... 31
APPENDIX A. Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011)
(panel decision)......................................................1a B. Collins v. Brewer, 727 F. Supp. 2d 797 (D.
Ariz. 2010) (district court decision) ....................16a C. Diaz v. Brewer, 656 F.3d 823 (9th Cir. 2012)
(denial of rehearing)............................................57a D. A.R.S. § 38-651 ....................................................70a E. Ariz. Admin. Code R2-5-101 (2008) ....................81a F. Ariz. Admin. Code R2-5-416 (2008) ....................97a G. Ariz. Admin. Code R2-5-101 (2005) ..................100a

v
TABLE OF AUTHORITIES Page
CASES
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) .................................31
Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 (Alaska 2005)...............................19, 23
Ariz. Ass’n of Providers v. State, 219 P.3d 216 (Ariz. App. 2009)..................................5
Arpaio v. Maricopa Cnty. Bd. of Supervisors, 238 P.3d 626 (Ariz. App. 2010)..................................5
Bailey v. City of Austin, 972 S.W.2d 180 (Tex. App. 1998) ......................18, 26
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ............................30, 31
Baker v. Nelson, 409 U.S. 810 (1972) .................................................30
Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) .................................................24
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) .............................23, 31
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .....................................15, 16, 25
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188 (2003) ...................................13
Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010) ................ passim

vi
TABLE OF AUTHORITIES – Continued
Page
Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011).......................... passim
Diaz v. Brewer, 676 F.3d 823 (9th Cir. 2012) ........................... passim
Dragovich v. United States Department of the Treasury, No. C 10-01564 CW, 2012 WL 1909603 (N.D. Cal. May 24, 2012) .........................27
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) .................................................22
Golinski v. United States Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012) ........................................................................28
Heller v. Doe, 509 U.S. 312 (1993) .................................................22
Jones v. Hallahan, 501 S.W.2d 588 (Ky. App. 1973) ..............................31
Langan v. State Farm Fire & Cas., 849 N.Y.S.2d 105 (N.Y. App. 2007) .........................26
Lawrence v. Texas, 539 U.S. 558 (2003) ...........................................15, 16
League of Ariz. Cities & Towns v. Martin, 201 P.3d 517 (Ariz. 2009) ....................................5, 14
Mandel v. Bradley, 432 U.S. 173 (1977) .................................................30
Massachusetts v. United States Department of Health & Human Services, Nos. 10-2204, 102207, 10-2214, 2012 WL 1948017 (1st Cir. May 31, 2012) .................................................... 11, 21

vii
TABLE OF AUTHORITIES – Continued Page
McGinnis v. Royster, 410 U.S. 263 (1973) .................................................22
Moreno v. U.S. Dep’t of Agric., 345 F. Supp. 310 (D.D.C. 1972) ..............................16
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ............... 10, 11, 21, 29
Pers. Adm’r v. Feeney, 442 U.S. 256 (1979) ...........................................13, 18
Phillips v. Wis. Pers. Comm’n, 482 N.W.2d 121 (Wis. App. 1992) .....................19, 25
Ross v. Denver Dep’t of Health & Hosps., 883 P.2d 516 (Colo. App. 1994) ...............................18
Rutgers Council of AAUP Chapters v. Rutgers, 689 A.2d 828 (N.J. Super. App. Div. 1997) .......18, 26
Schweiker v. Wilson, 450 U.S. 221 (1981) .................................................19
Snetsinger v. Mont. Univ. Sys., 104 P.3d 445 (Mont. 2004) ......................................19
Standhardt v. Superior Court, 77 P.3d 451 (Ariz. App. 2003)........................3, 30, 31
Tanner v. Or. Health Scis. Univ., 971 P.2d 435 (Or. App. 1998)...................................20
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) .....................................15, 16, 17
U.S.R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) .................................................25

viii
TABLE OF AUTHORITIES – Continued Page
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 229 (1977) ....................13, 14, 15, 19
Washington v. Davis, 426 U.S. 229 (1976) .................................................12
CONSTITUTIONAL PROVISIONS U.S. Const. amend. XIV (Equal Protection
Clause)............................................................. passim Ala. Const. art. I, § 36.03 ...........................................29 Alaska Const. art. I, § 25............................................29 Ariz. Const. art. XXX, § 1 ...................................2, 3, 29 Ark. Const. amend. 83, § 1 .........................................29 Cal. Const. art. I, § 7.5 ...............................................29 Colo. Const. art. II, § 31 .............................................29 Fla. Const. art. I, § 27.................................................29 Ga. Const. art. I, § 4, ¶ I.............................................29 Idaho Const. art. III, § 28...........................................29 Kan. Const. art. 15, § 16.............................................29 Ky. Const. § 233A........................................................29 La. Const. art. XII, § 15..............................................29 Mich. Const. art. I, § 25..............................................29 Miss. Const. art. 14, § 263A .......................................29 Mo. Const. art. I, § 33 .................................................29 Mont. Const. art. XIII, § 7 ..........................................29

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TABLE OF AUTHORITIES – Continued Page
Neb. Const. art. I, § 29 ...............................................29 Nev. Const. art. 1, § 21 ...............................................29 N.C. Const. art. XIV, § 6 .............................................29 N.D. Const. art. XI, § 28 .............................................29 Ohio Const. art. XV, § 11 ............................................29 Okla. Const. art. II, § 35.............................................29 S.C. Const. art. XVII, § 15..........................................29 S.D. Const. art. XXI, § 9 .............................................29 Tenn. Const. art. XI, § 18 ...........................................29 Tex. Const. art. I, § 32 ................................................29 Utah Const. art. I, § 29...............................................29 Va. Const. art. I, § 15-A ..............................................29 Wis. Const. art. XIII, § 13...........................................29
STATUTES 1 U.S.C. § 7 (Defense of Marriage Act) .......... 11, 27, 28 5 U.S.C. § 8901(5) .......................................................20 5 U.S.C. § 8951(2) .......................................................20 5 U.S.C. § 8981(2) .......................................................20 28 U.S.C. § 1254(1) .......................................................2 A.R.S. § 13-3611..........................................................25 A.R.S. § 25-125(A)...............................................2, 3, 30 A.R.S. § 25-211(A).......................................................26

x
TABLE OF AUTHORITIES – Continued Page
A.R.S. § 38-651....................................................3, 4, 14 A.R.S. § 38-651(O) .............................................. passim 1980 Ariz. Sess. Laws, ch. 97, § 4 ................................3 2009 Ariz. Sess. Laws, 3d Spec. Sess., ch. 10 ........5, 14 Del. Code Ann. tit. 13, § 101(a) ..................................29 Del. Code Ann. tit. 13, § 101(d) ..................................29 Del. Code Ann. tit. 13, § 212.......................................20 Haw. Rev. Stat. § 572-1...............................................29 750 Ill. Comp. Stat. 5/201...........................................29 750 Ill. Comp. Stat. 5/212...........................................29 750 Ill. Comp. Stat. 5/213.1........................................29 Ind. Code § 31-11-1-1 ..................................................29 Me. Rev. Stat. Ann. tit. 19-A, § 650............................29 Me. Rev. Stat. Ann. tit. 19-A, § 701............................29 Minn. Stat. § 517.03 ...................................................29 23 Pa. Cons. Stat. Ann. § 1704...................................29 W. Va. Code § 48-2-603 ...............................................29 Wyo. Stat. Ann. § 20-1-101 .........................................29
REGULATIONS Ariz. Admin. Code R2-5-101 (2008) .....................3, 4, 7 Ariz. Admin. Code R2-5-101 (2009) .............................7 Ariz. Admin. Code R2-5-101(10) (2008) .......................4

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TABLE OF AUTHORITIES – Continued Page
Ariz. Admin. Code R2-5-101(22) (2003) .......................4 Ariz. Admin. Code R2-5-101(22) (2005) ...................3, 4 Ariz. Admin. Code R2-5-101(22) (2008) .......................4 Ariz. Admin. Code R2-5-101(23) (2008) ...........4, 13, 14 Ariz. Admin. Code R2-5-416(C) (2008).........................3
RULES Supreme Court Rule 35(3) .......................................... ii
OTHER AUTHORITIES National Conference of State Legislatures,
State Employee Benefits, http://www.ncsl.org/ issues-research/health/state-employee-healthbenefits-ncsl.aspx ....................................................20

1
PETITION FOR WRIT OF CERTIORARI
Arizona Governor Janice K. Brewer, Director of the Arizona Department of Administration Scott Smith, and Director of Human Resources for the Arizona Department of Administration Kathy Peckardt (referred to collectively as State Officials) respectfully petition the Court for a writ of certiorari to review the United States Court of Appeals for the Ninth Circuit’s judgment in this case.
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OPINIONS BELOW
The court of appeals’ opinion (Pet. App. 1a-15a) is reported at 656 F.3d 1008 (9th Cir. 2011). The district court’s opinion granting Respondents’ request for preliminary injunction (Pet. App. 16a-56a) is reported at 727 F. Supp. 2d 797 (D. Ariz. 2010). The court of appeals’ order and opinion on denial of rehearing en banc (Pet. App. 57a-69a) is reported at 676 F.3d 823 (9th Cir. 2012).
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JURISDICTION
The court of appeals entered judgment on September 6, 2011. The court denied Petitioners’ timely Petition for Rehearing en Banc on April 3, 2012. This Petition has been filed within ninety days of April 3,

2
2012. This Court therefore has jurisdiction under 28 U.S.C. § 1254(1).
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CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS
The Equal Protection Clause of the Fourteenth Amendment provides the following in pertinent part: “nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.”
Article XXX, § 1 of the Arizona Constitution provides the following: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.” Arizona Revised Statute § 25-125(A) provides the following:
A valid marriage is contracted by a male person and a female person with a proper marriage license who participate in a ceremony conducted by and in the presence of a person who is authorized to solemnize marriages and at which at least two witnesses who are at least eighteen years of age participate.
Arizona Revised Statute § 38-651(O) provides the following:
For the purposes of this section, “dependent” means a spouse under the laws of this state, a child who is under twenty-six years of age or a child who was disabled before reaching nineteen years of age, who continues to be disabled under 42 United States Code

3
§ 1382c and for whom the employee had custody before reaching nineteen years of age.
The entire text of A.R.S. § 38-651 is reproduced in the appendix. Pet. App. 70a-80a. The following Arizona regulations are involved in this case and are reproduced in the appendix: Arizona Administrative Code (A.A.C.) R2-5-101 (2008) (Pet. App. 81a-96a); A.A.C. R2-5-416(C) (2008) (Pet. App. 97a-99a); A.A.C. R2-5101(22) (2005) (Pet. App. 100a-111a).
---------------------------------  ---------------------------------
STATEMENT OF THE CASE
Arizona law has long provided that a “valid marriage is contracted by a male person and a female person.” A.R.S. § 25-125(A); 1980 Ariz. Sess. Laws, ch. 97, § 4. In Standhardt v. Superior Court, 77 P.3d 451 (Ariz. App. 2003), two homosexual men in a committed relationship challenged A.R.S. § 25-125(A)’s constitutionality after applying for and being denied a marriage license. The Arizona Court of Appeals held that Arizona’s prohibition of same-sex marriage did not deprive petitioners of “their constitutional rights to substantive due process, privacy, or equal protection” under the U.S. or Arizona Constitutions. Id. at 465. In November 2008, Arizona voters amended Arizona’s Constitution to provide that “[o]nly a union of one man and one woman shall be valid or recognized as a marriage in this state.” Ariz. Const. art. XXX, § 1.
The State of Arizona provides healthcare benefits to its state employees and their eligible dependents.

4
A.R.S. § 38-651 (Pet. App. 70a-80a). Before 2008, Arizona regulations defined “eligible dependent” as “the employee-member’s . . . spouse under Arizona law or an unmarried child” who fell within the categories listed in the regulations. A.A.C. R2-5-101(22) (2005) (Pet. App. 105a).1 In 2008, the Arizona Department of Administration amended A.A.C. R2-5-101 to expand the definition of “eligible dependent” to include a “domestic partner,” defined as a “person of the same or opposite gender” who had lived with the employee for at least a year before applying for benefits, was financially interdependent with the employee, and met the regulation’s other qualifications. A.A.C. R2-5-101(22), (23) (2008) (Pet. App. 86a-88a). It also amended the definition of “child” to include a domestic partner’s child. A.A.C. R2-5-101(10) (Pet. App. 82a-83a). “Approximately 800 . . . State employees receive[d] benefits for a qualifying domestic partner” and “only [a] small fraction of those 800 employees receive[d] benefits for a same-sex domestic partner.” (Pet. App. 20a.) The cost of providing domestic partner benefits was over $4 million in fiscal year 2008, and the State had received claims for approximately $5.5 million in the following fiscal year. (Pet. App. 48a-49a.)
Beginning in fiscal year 2008 and continuing throughout fiscal year 2009, Arizona suffered a severe
1 Before 2005, A.A.C. R2-5-101(22) defined “eligible dependent” as “a dependent eligible for employee benefits under Section 125 of the Internal Revenue Code.” A.A.C. R2-5-101(22) (2003).

5
budget crisis. See League of Ariz. Cities & Towns v. Martin, 201 P.3d 517, 520 (Ariz. 2009) (State’s budget deficit was projected to be approximately $400 million in June 2008 but by the beginning of 2009 was reported to be nearly $1.6 billion). In the midst of this budget crisis, the Legislature passed a budget reconciliation bill that contained forty-two sections dealing with such diverse budget-related issues as nonwaiver of court fees, new licensing fees, repealing some social service programs, and reducing many previous appropriations. 2009 Ariz. Sess. Laws, 3d Spec. Sess., ch. 10.2 The bill included A.R.S. § 38-651(O) (Section O), which superseded existing regulations and statutorily defined “dependents” as state employees’ spouses and children. (A.R.S. § 38-651(O) is reproduced in Pet. App. 79a.)
In January 2010, Respondents filed their Amended Complaint against State Officials, alleging that Section O discriminates against lesbian and gay employees because unlike heterosexual employees in different-sex
2 The severity of Arizona’s budget crisis is also illustrated by the litigation it spawned. See, e.g., Arpaio v. Maricopa Cnty. Bd. of Supervisors, 238 P.3d 626, 628-29 & n.2 (Ariz. App. 2010) (certain counties were required to transfer amounts of $24,168,400 and $3,794,400 to State’s general fund); Ariz. Ass’n of Providers v. State, 219 P.3d 216, 220-21, 226 (Ariz. App. 2009) (Department of Economic Security responded to an over $100 million reduction in its budget by suspending certain services to developmentally disabled persons and reducing rates that it paid for other services); Martin, 201 P.3d at 518 & n.1, 520 (cities and towns required to deposit a total of $18,329,822 into the State’s general fund to address 2008-2009 deficit).

6
partnerships, they cannot marry. (Appellants’ Excerpt of Record filed in the Ninth Circuit below [E.R.] 253.) Although Respondents did not claim that Arizona’s laws defining marriage were unconstitutional, they alleged that State Officials had violated their equalprotection rights by implementing Section O and thereby intentionally refusing “to allow State employees any means to qualify a same-sex life partner or partner’s children for family coverage.” (E.R. 287.)
After the parties briefed and argued the State Officials’ Motion to Dismiss and Respondents’ preliminary injunction motion, the district court issued its opinion granting the preliminary injunction. Collins v. Brewer, 727 F. Supp. 2d 797, 815 (D. Ariz. 2010) (Pet. App. 55a-56a). Although the court found that “Section O is not discriminatory on its face,” it determined that it imposed different burdens based on sexual orientation because it “makes benefits available on terms that are a legal impossibility for gay and lesbian couples.” Id. at 27a.
In summarily rejecting the State Officials’ multiple rationales for Section O, the court did not examine the reasons for Section O’s classification, which distinguishes between married partners and both heterosexual and same-sex domestic partners; it instead narrowly analyzed whether excluding same-sex domestic partners furthered the State’s interests. Id. at 32a (because Plaintiffs alleged that the cost savings involved in providing benefits to state employees’ same-sex partners was negligible, denying those benefits was not rationally related to the cost-savings rationale); id. at 34a (the administrative burden of

7
“[a]pplying the existing standards to the occasional new gay or lesbian applicant would be . . . minimal”); id. at 37a (Section O does not further the State’s longstanding interest in promoting marriage and families with children because gays and lesbians cannot marry). The court then granted the preliminary injunction because “plaintiffs have demonstrated that the absolute denial of benefits to employees with same-sex domestic partners is not rationally and substantially related to the State’s purported interests in cost savings, administrative efficiency, and favoring marriage and families with children.” Id. at 47a. As the Amended Complaint requested (E.R. 298), the court enjoined enforcement of the portion of Section O that eliminated “family insurance eligibility for lesbian and gay State employees, and their domestic partners and domestic partners’ children who satisfy the criteria set forth in [A.A.C.] R2-5-101.” (Pet. App. 56a.)3 The court did not enjoin enforcement of Section O’s elimination of healthcare benefits for state employees’ opposite-sex domestic partners. Id.
The court of appeals affirmed, stating that the district court correctly “found that the plaintiffs demonstrated a likelihood of success on the merits, because they showed that the law adversely affected a classification of employees on the basis of sexual orientation, and did not further any of the State’s
3 When the district court issued the preliminary injunction in 2010, no Arizona statute or regulation defined “domestic partner.” See A.A.C. R2-5-101 (2009) (the definition of “domestic partner” is no longer included in the regulation).

8
claimed justifiable interests.” Diaz v. Brewer, 656 F.3d 1008, 1010 (9th Cir. 2011) (Pet. App. 2a-3a). The court agreed with the district court that the savings that resulted from excluding state employees’ different-sex domestic partners from eligibility for healthcare benefits were not relevant and determined that because the cost of providing same-sex domesticpartners with healthcare benefits was minimal, Section O did not further the State’s interest in reducing costs. (Pet. App. 10a.) And the court agreed with the district court that Section O did not further the State’s interest in promoting marriage because “the denial of benefits to same-sex domestic partners cannot promote marriage, since such partners are ineligible to marry.” Id. at 13a-14a. The court did not state that there was any evidence that the Legislature intended to discriminate against gay and lesbian state employees when it enacted Section O, but held that “when a state chooses to provide benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular.” Id. at 11a.
The court denied the State Officials’ Petition for Rehearing en Banc. Diaz v. Brewer, 676 F.3d 823, 824 (9th Cir. 2012) (Pet App. 58a). Judges O’Scannlain and Bea dissented from the denial of rehearing en banc, noting that the “panel’s holding rests on a disparate impact theory that the Supreme Court has squarely rejected and on a misapprehension of rationality review.” Id. at 59a. The dissent also noted

9
that the “panel all but expressly held that oppositesex-only marriage rules are unconstitutional – indeed, that such rules are irrational per se because they can rest only on a ‘bare desire to harm a politically unpopular group’ ” Id. (quoting panel decision at Pet. App. 14a and noting that internal quotation marks and ellipses were omitted).
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REASONS FOR GRANTING THE PETITION
This case presents a straightforward question: Does Section O, which does not extend healthcare benefits to state employees’ domestic partners, meet the Equal Protection Clause’s rational-basis test? The court of appeals’ holding that Section O is invalid – even though it is facially neutral, was applied to both same-sex and different-sex partners, and there was no evidence that the State intended to discriminate against gay and lesbian employees in enacting it – is contrary to this Court’s adverse-impact, equalprotection precedent. And the holding conflicts with the decisions of state appellate courts deciding similar issues under federal or state constitutional equalprotection provisions.
The court of appeals’ decision also perverts the application of the rational-basis test by ignoring the State’s valid justifications for Section O’s classification – conserving state resources and funds and promoting traditional marriage – and conflicts with state court appellate decisions applying the rationalbasis test under the federal constitution or applying

10
the same rational-basis test under their state constitutions’ equal-protection provisions.
Finally, by finding that Section O discriminates against homosexual domestic partners because only heterosexual domestic partners can marry under Arizona law, the court of appeals premised the decision on an indirect invalidation of Arizona’s statutory and constitutional provisions defining marriage as a union between a man and a woman. The decision is therefore contrary to this Court’s longstanding precedent and the decisions of other federal circuit and state courts. (See Pet. App. 65a-66a) (O’Scannlain, J., dissenting from the denial of rehearing en banc) (noting that the panel’s decision “threatens to dismantle constitutional, statutory, and administrative provisions in those states that wish to promote traditional marriage”).
The court’s decision will directly impact federal, state, and local governmental entities’ right to determine which dependents are eligible for healthcare benefits and thus control their budgets.4 The decision also “spur[s] challenges to other state constitutional and statutory provisions that protect – indeed, even recognize – traditional marriage.” Id. at 67a. The Ninth Circuit decision in Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), reh’g en banc denied, Nos.
4 Note 7 infra lists federal statutes that provide healthcare benefits to spouses, but not to domestic partners, of federal employees and notes that the majority of States do not provide benefits to state employees’ domestic partners.

11
10-16696, 11-16577, 2012 WL 1994574 (9th Cir. June 5, 2012), concerning the constitutionality of California’s constitutional amendment defining a valid marriage as one between a man and a woman, is undoubtedly headed for this Court. Nonetheless, the Court should grant certiorari here because “[t]his case is in some ways even more breathtaking” than the Ninth Circuit’s decision in Perry, which did not reach “ ‘the constitutionality of any ban on same-sex marriage,’ ” (Pet. App. 68a) (O’Scannlain, J., dissenting from denial of rehearing en banc) (quoting Perry, 671 F.3d at 1082 n.14). Judge O’Scannlain explained the implications of the panel’s opinion: “By holding here that opposite-sex-only marriage rules serve no rational purpose, the panel decided an issue that bears directly – perhaps dispositively – on the broad question expressly left open in Perry.” Id.5
5 Massachusetts v. United States Department of Health & Human Services, Nos. 10-2204, 10-2207, 10-2214, 2012 WL 1948017 (1st Cir. May 31, 2012) (USDHHS), which held that the federal Defense of Marriage Act was unconstitutional, may also be headed for this Court. But USDHHS states even more clearly than the Perry decision that it does not address whether the States have a rational basis for defining marriage as a union between a man and a woman. Id. *1 (“Rather than challenging the right of states to define marriage as they see fit, the[se] appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.”).

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A. The Court of Appeals’ Holding that Section O Violates the Equal Protection Clause – Even Though the Statute Is Facially Neutral and There Was No Evidence of Intent to Discriminate Based on Sexual Orientation – Is Contrary to This Court’s Precedent and Conflicts with the Reasoning in State Appellate Decisions.
The court of appeals acknowledged that Section O was not discriminatory on its face “because it affected both same-sex and different-sex couples” but nonetheless approved the district court’s finding of an equal-protection violation based on Section O’s discriminatory effect. (Pet. App. 7a.) Neither the court of appeals nor the district court, however, cited or discussed any evidence of intent to discriminate based on sexual orientation. The court of appeals either assumed that a disparate-impact showing was sufficient or inferred discriminatory intent against samesex domestic partners because they cannot marry under Arizona law. Both the assumption and the inference are erroneous.
This Court has made clear “that a law or other official act, without regard to whether it reflects a . . . discriminatory purpose, is [not] unconstitutional Solely because it has a . . . disproportionate impact.” Washington v. Davis, 426 U.S. 229, 239 (1976). “[A] neutral law does not violate the Equal Protection Clause solely because it results in a racially disproportionate impact; instead the disproportionate impact must be traced to a purpose to discriminate on

13
the basis of race.” Pers. Adm’r v. Feeney, 442 U.S. 256, 260 (1979); see also City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) (“We have made clear that proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”) (brackets and internal quotation marks omitted). Absent a clear pattern that is unexplainable on grounds other than animus toward the affected group, “impact alone is not determinative.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 229, 266 (1977). Other evidence that can establish discriminatory intent includes “[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes” and “legislative or administrative history.” Id. at 267-68.
The court of appeals did not even purport to find that any of the Arlington Heights factors demonstrated animus against gay and lesbian state employees. Indeed, Section O’s historical background and legislative history demonstrated that the Legislature was motivated by budgetary considerations when it passed Section O.
Before 2008, Arizona provided state-employee dependent-partner healthcare benefits only to dependent spouses and children. In April 2008, Arizona amended its regulations to extend healthcare benefits to state employees’ qualified domestic partners and children. A.A.C. R2-5-101(23) (2008) (Pet. App. 88a). The regulations defined “domestic partner” as a “person of the same or opposite gender who,” among

14
other requirements, had shared a residence with the state employee for at least a year before applying for benefits, was financially interdependent with the employee, and was not married or in another domestic-partner relationship. Id. at 86a-88a. Only a small fraction of the state employees who received benefits for a qualifying domestic partner received the benefits for a same-sex domestic partner. (Pet. App. 20a.) The cost of providing domestic partner benefits was over $4 million in fiscal year 2008 and was approximately $5.5 million the following fiscal year. Id. at 48a-49a.
Shortly after the amended regulation went into effect, Arizona suffered a severe budget crisis. See Martin, 201 P.3d at 520 (Arizona’s budget deficit was projected to be approximately $400 million in June 2008 but by the beginning of 2009 was reported to be nearly $1.6 billion). In the midst of this budget crisis, the Arizona Legislature passed a budget reconciliation bill that addressed the crisis in a variety of ways, including repealing some social services programs, reducing previous appropriations, and amending A.R.S. § 38-651 to include Section O, which defines a state employee’s dependent as a spouse. 2009 Ariz. Sess. Laws, 3d Spec. Sess., ch. 10.
In this case as in Arlington Heights, 429 U.S. at 269, there is nothing about the “sequence of events” leading to Section O’s enactment “that would spark suspicion” that the Legislature was motivated by an intent to discriminate against gays and lesbians. The lower court therefore should have concluded that

15
Respondents “failed to carry their burden of proving that discriminatory purpose was a motivating factor,” id. at 270, in the Arizona Legislature’s decision.
The court of appeals instead apparently simply attributed an undemonstrated discriminatory motive to the State, noting that the district court’s decision barring the State from returning to the status quo and offering benefits only to employees’ spouses “is consistent with long standing equal protection jurisprudence holding that ‘some objectives, such as “a bare . . . desire to harm a politically unpopular group,” are not legitimate state interests.’ ” (Pet. App. 14a) (quoting Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring) (quoting U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973) and citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)). These authorities are not disparate-impact cases and do not support the court of appeals’ assumption of the Legislature’s animus against homosexuals.
In Lawrence, Justice O’Connor found that a Texas statute that criminalized sodomy between same-sex partners but not between opposite-sex partners violated the Equal Protection Clause. 539 U.S. at 581 (O’Connor, J., concurring). Because the statutory classification facially discriminated against homosexuals, Justice O’Connor accurately determined that the Legislature intended to discriminate against homosexuals. In striking contrast, Section O merely retracted gratuitous healthcare benefits from both same-sex

16
and opposite-sex domestic partners of state employees.
In Cleburne, 473 U.S. at 447-48, the Court found that a zoning ordinance that required a group home for the mentally impaired to obtain a special permit but that did not require most other adult group homes to do so violated the Equal Protection Clause. Because the ordinance in Cleburne, like the statute in Lawrence, facially discriminated against the group in question, the Court could validly conclude that it had been promulgated with a discriminatory intent.
In Moreno, the Court addressed the Food Stamp Act’s provision that rendered ineligible for food stamps any household that contained an individual who was unrelated to any other member of the household and held that it violated the Equal Protection Clause. 413 U.S. at 538. The Court found that the provision did not further the Food Stamp Act’s expressly stated purposes because “ ‘[t]he relationships among persons constituting one economic unit and sharing cooking facilities have nothing to do with their abilities to stimulate the agricultural economy by purchasing farm surpluses, or with their personal nutritional requirements.’ ” Id. at 534 (quoting Moreno v. U.S. Dep’t of Agric., 345 F. Supp. 310, 313 (D.D.C. 1972)). The Court noted that the little legislative history that existed “indicate[d] that [the] amendment was intended to prevent so called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program.” Id. (quoting the relevant legislative history). The Court explained that “a bare

17
congressional desire to harm a politically unpopular group [hippies] cannot constitute a legitimate governmental interest . . . in and of itself.” Id. The Court then examined the government’s proffered interest in minimizing fraud and found that the provision did not further that interest. Id. at 535-38. The Court found that most people in the hippie category could and would “alter their living arrangements in order to remain eligible for food stamps,” whereas “the AFDC mothers who tr[ied] to raise their standard of living by sharing housing [would] be affected” because they were too poor to alter their living arrangements. Id. at 537-39 (internal quotation marks omitted).
Unlike the legislative history in Moreno, the legislative history here provides no support for the court of appeals’ assumption that the Legislature enacted Section O based on a desire to harm gay and lesbian state employees. And, unlike the provision that the Court found invalid in Moreno, Section O furthers legitimate state interests. See Section B infra. Therefore Moreno does not support the court of appeals’ inference that the Arizona Legislature intended to discriminate against gay and lesbian employees when it enacted Section O.
The court of appeals also suggested that it was inferring discriminatory intent from the fact that “different-sex couples wishing to retain their current family health benefits could alter their status – marry – to do so” but that “same-sex couples were prohibited from doing so” by the Arizona Constitution. (Pet. App. 12a.) Although homosexuals cannot

18
marry their same-sex partners and make them spouses, Section O does not impose this limitation – Arizona’s constitutional and statutory provisions defining marriage do. The court of appeals’ determination thus conflicts with state appellate decisions that have held that benefit provisions similar to Section O do not unlawfully target gays and lesbians in violation of federal or state equal-protection principles even though same-sex couples cannot marry. See Ross v. Denver Dep’t of Health & Hosps., 883 P.2d 516, 520 (Colo. App. 1994) (holding that denying sick-leave benefits to a city employee seeking to care for her same-sex partner was not discrimination based on sexual orientation under either the federal or state constitution and rejecting plaintiff ’s argument that her inability to marry her same-sex partner “distinguishes her situation from that of an unmarried heterosexual employee”); Rutgers Council of AAUP Chapters v. Rutgers, 689 A.2d 828, 833-34 (N.J. Super. App. Div. 1997) (relying on Feeney, 442 U.S. at 274-75, to find that the statute limiting health insurance coverage to employees’ spouses was facially neutral and that plaintiffs failed to show a discriminatory intent behind the marital-status classification even though same-sex domestic partners could not qualify for coverage because they could not marry the covered employee and that the statute thus did not violate the state constitution’s equal-protection provision); Bailey v. City of Austin, 972 S.W.2d 180, 186 (Tex. App. 1998) (relying on federal law to find that although limiting benefits to employees’ spouses imposed a disproportionate burden on homosexual employees with domestic partners because they could

19
not marry their partners, this alone was not a basis for finding an intent to discriminate against homosexuals under the Texas Constitution) (citing Arlington Heights, 429 U.S. at 265, and Schweiker v. Wilson, 450 U.S. 221, 233-34 (1981)); Phillips v. Wis. Pers. Comm’n, 482 N.W.2d 121, 123 n.1, 128-29 (Wis. App. 1992) (holding that an employee benefits rule that distinguished between married and unmarried employees did not discriminate based on sexual orientation under the Wisconsin Constitution, which “implies the same equal protection guaranties as are found in the United States Constitution”).6
6 Respondents argued below that these cases are antiquated and that the “weight of state authority decidedly favors the panel’s analysis.” Plaintiffs-Appellees’ Opposition to Petition for Rehearing en Banc at 12 & n.7. But the cases that Respondents cite do not support the court of appeals’ equal-protection analysis. Those cases were decided in States whose courts had interpreted their state constitutions to provide greater protection than the federal Equal Protection Clause and at least one case involved a policy that discriminated against same-sex couples. See Alaska Civil Liberties Union v. Alaska, 122 P.3d 781, 787 (Alaska 2005) (denying benefits to public employees’ same-sex domestic partners violated the Alaska Constitution’s equal protection clause, which “protects Alaskans’ right to non-discriminatory treatment more robustly than does the federal equal protection clause”); Snetsinger v. Mont. Univ. Sys., 104 P.3d 445, 449-51 (Mont. 2004) (finding that the Montana University’s policy prohibiting gay employees from obtaining insurance coverage for their same-sex domestic partners violated the Montana Constitution’s equal protection provision, which “provides even more individual protection than the [federal] Equal Protection Clause,” based on its finding that same-sex couples were not treated similarly to different-sex couples because the “policy allow[ed] unmarried opposite-sex couples, who may only have a
(Continued on following page)

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Given the court of appeals’ conclusion that Section O’s adverse impact on same-sex couples violated the Equal Protection Clause without any evidence of discriminatory intent, the decision also threatens the validity of federal and state statutes that offer benefits only to employees’ spouses.7 This Court should therefore grant review to clarify that the court of appeals erroneously inferred that the Arizona Legislature was motivated by a discriminatory intent when it limited healthcare benefits to state employees’
fleeting relationship, to receive health insurance benefits by signing an Affidavit” but denied the same opportunity to samesex couples); Tanner v. Or. Health Scis. Univ., 971 P.2d 435, 44647 (Or. App. 1998) (denying benefits to unmarried domestic partners of both homosexual and heterosexual employees violated Oregon Constitution’s privileges and immunities clause because homosexuals are a suspect class and discrimination is actionable without a showing of discriminatory intent).
7 See, e.g., 5 U.S.C. §§ 8901(5) (defining “member of family” for purposes of healthcare benefits as “spouse of an employee” and dependent children); 8951(2) (using definition in § 8901(5) for purposes of dental benefits); 8981(2) (using definition in § 8901(5) for purposes of vision benefits); see also National Conference of State Legislatures, State Employee Benefits, http:// www.ncsl.org/issues-research/health/state-employee-health-benefitsncsl.aspx at 7 (last visited June 26, 2012) (noting that in addition to Arizona, twenty-one States provide benefits for same-sex partners of state employees). Delaware is not included on the list but it now grants to and imposes upon parties to a civil union the legal rights and responsibilities that state law grants to and imposes upon married spouses. Del. Code Ann. tit. 13, § 212. Thus, the majority of States do not provide benefits to state employees’ domestic partners.

21
spouses when there was no evidence to support that inference.
B. The Court of Appeals’ Distorted RationalBasis Analysis Conflicts with State Appellate Decisions’ Rational-Basis Analysis and Lower Federal Courts Are Relying on the Court of Appeals’ Distorted Analysis.
Although other federal courts have recently found that statutory provisions denying benefits to same-sex couples fail the rational-basis test, the court of appeals’ decision is unique in that it alone finds that a facially neutral statute fails the Equal Protection Clause’s rational-basis test without any evidence of intent to discriminate against gays and lesbians.8 The Court should grant review in this case because the court of appeals’ application of the rationalbasis test conflicts with state court decisions applying the rational-basis test under federal or state equal-protection provisions and lower federal courts’
8 For example, the Ninth Circuit found that California’s constitutional amendment, which had the effect of singling out only same-sex couples by taking away their right “to obtain and use the designation of ‘marriage’ to describe their relationships,” failed to meet the rational-basis test. Perry, 671 F.3d at 1063. And the First Circuit found that the denial of federal benefits to same-sex spouses failed to meet rational-basis review because it was not “adequately supported by any permissible federal interest.” USDHHS, 2012 WL 1948017 at *11. In contrast to the court of appeals’ decision here, both of these decisions are based on statutes that facially discriminate against gays and lesbians.

22
reliance on the court of appeals’ decision makes it clear that the decision calls into question the constitutionality of countless governmental benefit programs.9
Rational-basis review is a “paradigm of judicial restraint” – it “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993). A legislative classification “is accorded a strong presumption of validity,” and challengers must “negat[e] every conceivable basis which might support it.” Heller v. Doe, 509 U.S. 312, 319-20 (1993). As long as one legitimate state purpose upholds a classification, it does not matter whether it was the primary purpose or whether the classification might also in part have been based on an illegitimate interest. See McGinnis v. Royster, 410 U.S. 263, 276 (1973). Under rational-basis review, courts must “accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321.
Under these principles, Section O meets the rational-basis test. The Legislature could have reasonably concluded that eliminating health insurance coverage for state employees’ heterosexual and samesex domestic partners would further the State’s
9 For example, the federal government and many States do not provide benefits to government employees’ same-sex partners. See note 7 supra.

23
interest in promoting traditional marriage while also eliminating the additional expense and administrative burden involved in providing domestic-partner coverage. See Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006) (recognizing the validity of the State’s “ ‘responsible procreation’ theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot”).
The court of appeals erred in applying the rational-basis test by ignoring Section O’s actual classification and by finding that same-sex partners were similarly situated to spouses. Neither the authority that the court of appeals cites nor any other relevant authority supports its distortion of the rational-basis test.10
10 The court of appeals’ analysis is similar to the Alaska Supreme Court’s analysis in Alaska Civil Liberties Union, 122 P.3d at 788 (finding that offering valuable benefits to employees’ spouses but not to unmarried employees’ domestic partners discriminated against same-sex couples and that “the proper comparison is between same-sex couples and opposite-sex couples” because employees in same-sex relationships cannot marry to obtain the benefits). But the Alaska Supreme Court was applying the Alaska Constitution, which provides “greater protection to individual rights” than the Equal Protection Clause does, id. at 785 n.16, and its analysis is faulty for the same reason that the court of appeals’ analysis is faulty.

24
First, the court of appeals ignored the State’s justification for Section O’s actual classification and required the State to justify a classification that Section O does not make. (Pet. App. 10a) (finding that Section O’s restriction of coverage for employees’ samesex partners did not further the State’s interests in saving costs and reducing administrative burdens because the number of state employees who will apply for healthcare benefits for their same-sex partners is small and the State therefore will not save much in costs when it denies them coverage);11 (id. at 13a-14a) (finding that Section O did not further the State’s interest in promoting marriage because same-sex partners cannot marry). The court required the State to justify excluding one admittedly limited group of employees12 instead of recognizing that granting employment benefits to spouses promotes marriage while granting those benefits to unmarried partners would not. See Bd. of Trs. of Univ. of Alaska v. Garrett, 531 U.S. 356, 366-67 (2001) (“Under rational-basis review, where a group possesses ‘distinguishing
11 As Judge O’Scannlain noted in his dissent, “the legislature was entitled to believe that most employees in opposite-sex domestic partner relationships would not sprint to marry, and thus it was entitled to believe that the lion’s share of the savings would come from ending coverage for opposite-sex couples.” (Pet. App. 65a.)
12 The district court found that “[a]pproximately 800 of the 140,000 participating State employees receive benefits for a qualifying domestic partner” and that “[a] small fraction of those 800 employees receive benefits for a same-sex domestic partner.” (Pet. App. 20a.)

25
characteristics relevant to interests the State has the authority to implement,’ a State’s decision to act on the basis of those differences does not give rise to a constitutional violation.”) (quoting Cleburne, 473 U.S. at 441); see also U.S.R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980) (“[T]he fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.”).
Second, the court of appeals erred in implicitly finding that same-sex domestic partners were similarly situated to spouses. The court of appeals believed that this analysis was justified because Arizona’s law prevents only same-sex couples from marrying and thus implicitly (but erroneously) determined that state employees with same-sex domestic partners were similarly situated to married state employees. (Pet. App. 13a) (rejecting the State’s interest in saving costs and reducing administrative burdens because “the savings depend upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review”). Married state employees have a legal responsibility to care for their partners, whereas no such duty is imposed on domestic partners. See A.R.S. § 13-3611 (a married person is guilty of a misdemeanor if he or she fails to provide necessary medical care for his spouse); see also Phillips, 482 N.W.2d at 126 (noting that a samesex domestic partner is not similarly situated to a spouse because “[t]he law imposes no mutual duty of general support, and no responsibility for provision of

26
medical care, on unmarried couples of any gender, as it does on married persons”). In addition, same-sex domestic partners are not bound by Arizona’s community property laws. See A.R.S. § 25-211(A) (stating that “[a]ll property acquired by either husband or wife during the marriage is the community property of the husband and wife” with limited exceptions).
The court of appeals’ decision conflicts with state court decisions that have determined that providing benefits to governmental employees’ spouses but not to their domestic partners furthers legitimate government interests under the rational-basis test of the Equal Protection Clause or state constitutional equalprotection provisions. See Rutgers, 689 A.2d at 833 (State’s “policy of extending health benefits to employees’ spouses rather than domestic partners furthers the governmental goal of creating a workable administrative scheme that can be applied in a uniform and objective manner” and did not violate the New Jersey Constitution); Langan v. State Farm Fire & Cas., 849 N.Y.S.2d 105, 109 (N.Y. App. 2007) (workers’ compensation provision providing benefits to spouses but not to parties to civil unions furthered the State’s legitimate interest in protecting the traditional family constellation of husband, wife, and children and thus did not violate federal or state equal protection provisions); Bailey, 972 S.W.2d at 189 (limiting city employee “benefits to an employee’s legal spouse and other persons in a cognizable family relationship with an employee . . . advance[d] the government’s legitimate interest in recognizing and

27
favoring such relationships” and thus did not violate the Texas Constitution).
The Court should grant review not only to resolve the conflict between state court decisions and the court of appeals’ decision but also to provide guidance to the federal courts on this issue. Federal district courts have relied on the court of appeals’ erroneous analysis. In Dragovich v. United States Department of the Treasury, No. C 10-01564 CW, 2012 WL 1909603 at *1 (N.D. Cal. May 24, 2012), the district court granted plaintiffs’ motion for summary judgment on their equal-protection claim challenging § 3 of the federal Defense of Marriage Act (DOMA) on behalf of same-sex couples who were registered domestic partners under California law. Relying on this case, the court rejected the argument that DOMA was justified under the rational-basis test because it was “designed to conserve scarce government resources.” Id. at *11-12 (noting that the Diaz court “held that a provision to save funds based on such a distinction [between same-sex and similarly situated heterosexual couples, because heterosexual couples could preserve their benefits by marrying, whereas samesex couples were barred from marriage by Arizona law] could not survive rational basis review because it amounted to the ‘selective application of legislation to a small group’ ”) (quoting Pet. App. 13a). The court rejected the federal defendants’ argument that the Diaz case was inapposite because it concerned the withdrawal of an existing benefit, stating the following: “This, however, was not the crux of the Ninth

28
Circuit’s reasoning. The court explained that ‘when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular.’ ” Id. at *15 (quoting Pet. App. 11a). In Golinski v. United States Office of Personnel Management, 824 F. Supp. 2d 968, 996 (N.D. Cal. 2012), the district court found that the denial of benefits to a lesbian employee’s same-sex spouse under DOMA failed the rational-basis test. The district court quoted the court of appeals’ decision in this case and noted that “[w]hen applying rational basis review to a classification that adversely affects an unpopular group, courts apply a ‘more searching’ rational basis review.” Id. (quoting Pet. App. 7a).
C. The Court of Appeals’ Implicit Holding that the State Cannot Constitutionally Limit Marital Benefits to Unions Between a Man and a Woman Is Contrary to This Court’s Precedent and Conflicts with Other Federal and State Appellate Decisions.
The court of appeals erred in finding that Section O discriminates against employees with same-sex partners by distinguishing only between married and unmarried employees. The court of appeal’s distinction was based on Arizona law limiting marital benefits to unions between a man and a woman. (Pet. App. 12a) (noting that because eligibility for benefits was limited to married couples and the Arizona Constitution prohibits same-sex couples from marrying,

29
same-sex couples were excluded from eligibility by operation of law). Thus, “[t]he panel concluded – in a way that is veiled but unmistakable – that rules benefitting only traditional marriage serve no conceivable rational purpose.” (Pet. App. 66a) (O’Scannlain, J., dissenting from denial of rehearing en banc). That conclusion “clashes with Supreme Court precedent . . . and with decisions of other federal and state appellate courts holding that laws recognizing or promoting traditional marriage do not violate the federal Constitution.” Id. at 67a.
Like the vast majority of States,13 Arizona preserves the traditional definition of marriage as a union of a man and a woman. See Ariz. Const. art.
13 Some States have adopted constitutional amendments prohibiting the recognition of same-sex marriages. See Ala. Const. art. I, § 36.03; Alaska Const. art. I, § 25; Ark. Const. amend. 83, § 1; Cal. Const. art. I, § 7.5 (found unconstitutional by Perry, 671 F.3d at 1063); Colo. Const. art. II, § 31; Fla. Const. art. I, § 27; Ga. Const. art. I, § 4, ¶ I; Idaho Const. art. III, § 28; Kan. Const. art. 15, § 16; Ky. Const. § 233A; La. Const. art. XII, § 15; Mich. Const. art. I, § 25; Miss. Const. art. 14, § 263A; Mo. Const. art. I, § 33; Mont. Const. art. XIII, § 7; Neb. Const. art. I, § 29; Nev. Const. art. 1, § 21; N.C. Const. art. XIV, § 6; N.D. Const. art. XI, § 28; Ohio Const. art. XV, § 11; Okla. Const. art. II, § 35; S.C. Const. art. XVII, § 15; S.D. Const. art. XXI, § 9; Tenn. Const. art. XI, § 18; Tex. Const. art. I, § 32; Utah Const. art. I, § 29; Va. Const. art. I, § 15-A; Wis. Const. art. XIII, § 13. Other States have passed statutes explicitly limiting marriage to the union of a man and a woman. See Del. Code Ann. tit. 13, § 101(a), (d); Haw. Rev. Stat. § 572-1; 750 Ill. Comp. Stat. 5/201, 5/212, 5/213.1; Ind. Code § 31-11-1-1; Me. Rev. Stat. Ann. tit. 19A, §§ 650, 701; Minn. Stat. § 517.03; 23 Pa. Cons. Stat. Ann. § 1704; W. Va. Code § 48-2-603; Wyo. Stat. Ann. § 20-1-101.

30
XXX, § 1; A.R.S. § 25-125(A); see also Standhardt, 77 P.3d at 290 (holding that the “fundamental right to marry protected by our federal . . . constitution[ ] does not encompass the right to marry a same-sex partner” and that “Arizona’s prohibition of same-sex marriages furthers a proper legislative end and was not enacted simply to make same-sex couples unequal to everyone else”). Section O is consistent with Arizona’s constitutional and legislative choice to give only traditional marriage legal recognition. The court of appeals’ unfounded conclusion that Section O must be motivated by a “bare desire to harm a politically unpopular group” and serves no conceivable rational purpose (Pet. App. 14a [internal quotation marks and ellipsis omitted]) condemns the Legislature’s and the Arizona voters’ choice to legally recognize only traditional marriage.
In Baker v. Nelson, 409 U.S. 810 (1972), this Court unanimously dismissed “for want of a substantial federal question” an appeal from the Minnesota Supreme Court arguing that a state law limiting marriage (and all its benefits) to the union of one man and one woman violated the Equal Protection Clause. Id.; see also Baker v. Nelson, No. 71-1027, Jurisdictional Statement at 3 (Oct. Term 1972); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). Because the dismissal in Baker is a decision on the merits that binds lower courts on that issue, see Mandel v. Bradley, 432 U.S. 173, 176 (1977), the court of appeals erred in ruling in a manner that is contrary to Baker. The court of appeals’ ruling is also inconsistent with

31
federal and state appellate decisions holding that laws recognizing or promoting traditional marriage do not violate the federal constitution. See, e.g., Citizens for Equal Prot., 455 F.3d at 871; Adams v. Howerton, 673 F.2d 1036, 1042 (9th Cir. 1982); Standhardt, 77 P.3d at 458; Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. App. 1973); Baker, 191 N.W. at 185-87.
This Court should grant review to reaffirm that States have the right to promote traditional marriage by providing benefits to the spouses of state employees and not providing the same benefits to unmarried partners of state employees.
---------------------------------  ---------------------------------
CONCLUSION
This Court should grant the Petition for Writ of Certiorari.
Respectfully submitted,
THOMAS C. HORNE Attorney General of Arizona
PAULA S. BICKETT Chief Counsel, Civil Appeals Counsel of Record KATHLEEN P. SWEENEY Assistant Attorney General CHARLES A. GRUBE Senior Agency Counsel
Counsel for Petitioners

1a

APPENDIX A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSEPH R. DIAZ; JUDITH MCDANIEL; KEITH B. HUMPHREY; BEVERLY SECKINGER; STEPHEN RUSSELL; DEANNA PFLEGER; CARRIE SPERLING; LESLIE KEMP; COREY SEEMILLER,

Plaintiffs-Appellees,

v.
JANICE K. BREWER, in her official capacity as Governor of the State of Arizona; DAVID RABER, in his official capacity as Interim Director of the Arizona Department of Administration and Personnel Board; KATHY PECKARDT, in her official capacity as Director of Human Resources for the Arizona Department of Administration and Personnel Board,

No. 10-16797
D.C. No. 2:09-cv-02402-JWS
OPINION

Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona
John W. Sedwick, District Judge, Presiding

2a
Argued and Submitted February 14, 2011 – San Francisco, California
Filed September 6, 2011 Before: Mary M. Schroeder and Sidney R. Thomas, Circuit Judges, and Mark W. Bennett, District Judge.*
Opinion by Judge Schroeder
COUNSEL Tara L. Borelli, Los Angeles, California, for plaintiffsappellees Joseph R. Diaz, et al.
Charles A. Grube, Deputy State Attorney General, Phoenix, Arizona, for defendants-appellants Janice K. Brewer, et al.
OPINION SCHROEDER, Circuit Judge:
The State of Arizona appeals the district court’s order granting a preliminary injunction to prevent a state law from taking effect that would have terminated eligibility for health-care benefits of state employees’ same-sex partners. In a published opinion, the district court found that the plaintiffs demonstrated a likelihood of success on the merits, because they showed that the law adversely affected
* The Honorable Mark W. Bennett, District Judge for the United States District Court for the Northern District of Iowa, sitting by designation.

3a
a classification of employees on the basis of sexual orientation, and did not further any of the state’s claimed justifiable interests. Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010).1 The court also found that the plaintiffs had established a likelihood of irreparable harm in the event coverage for partners ceased. The district court’s findings and conclusions are supported by the record and we affirm.
BACKGROUND
In April of 2008, the State of Arizona administratively adopted amendments to Section 101 of Chapter 5 of Title 2 of the Arizona Administrative Code to offer access to healthcare benefits for qualified opposite-sex and same-sex domestic partners of state employees. Prior to 2008, when state employees chose to participate in the State’s health insurance program, they only had the option to include their spouses and children within the defined parameters of the term “dependent.” In 2008, the amendments expanded the definition of “dependent” to include qualified “domestic partners,” who could be of either sex. See 14 Ariz. Admin. Reg. 1420-34 (Apr. 25, 2008).
In November of 2008, however, the Arizona voters approved Proposition 102, also known as the Marriage Protection Amendment, which amended the Arizona Constitution to define marriage as between
1 On June 6, 2011, the panel granted Plaintiff Tracy Collins’s unopposed motion to dismiss without prejudice.

4a
one man and one woman: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.” Ariz. Const. art. 30, § 1. On September 4, 2009, the governor of Arizona signed House Bill 2013, which included a statutory provision, Ariz. Rev. Stat. § 38-651(O) (“Section O”) that redefined “dependants” as “spouses,” and thus would eliminate coverage for domestic partners:
O. FOR THE PURPOSES OF THIS SECTION, BEGINNING OCTOBER 1, 2009, “DEPENDENT” MEANS A SPOUSE UNDER THE LAWS OF THIS STATE, A CHILD WHO IS UNDER NINETEEN YEARS OF AGE OR A CHILD WHO IS UNDER TWENTY-THREE YEARS OF AGE AND WHO IS A FULL-TIME STUDENT.
After a number of adjustments not at issue here, the new definition of “dependent” was slated to take effect on January 1, 2011.
A group of gay and lesbian state employees (“Plaintiffs”) filed a complaint on November 17, 2009 amended on January 7, 2010, seeking injunctive and declaratory relief to redress Section O’s claimed violation of their equal protection and substantive due process rights under the Fourteenth Amendment to the U.S. Constitution. According to the factual allegations of the complaint, which are not disputed, all of the plaintiffs are highly skilled state employees whose job duties are equivalent to the duties of their heterosexual colleagues. Each of the nine plaintiffs and his or her domestic partner have enjoyed a

5a
long-term, committed, and financially interdependent relationship, and would marry if Arizona law permitted same-sex couples to marry. Each plaintiff enrolled his or her domestic partner and the domestic partner’s qualifying children (if any) for family coverage during the 2008 or 2009 open enrollment period. Each plaintiff, domestic partner, and partner’s child met the eligibility requirements for coverage at the time of enrollment and continue to meet those requirements. Each named plaintiff would lose health insurance coverage for his or her domestic partner, and his or her partner’s children if Section O were to go into effect.
The complaint also reflects that such a loss would cause all of the plaintiffs serious financial and emotional harm. For example, one of the plaintiffs, Beverly Seckinger, a Professor and Interim Director of the School of Media Arts at the University of Arizona, has been in an exclusive and financially interdependent relationship with Susan Taunton for over 22 years. The two registered as domestic partners with the City of Tucson in October 2005. Susan enrolled in the state’s family coverage in 2008, and remains enrolled. Susan is the primary caregiver for her 89-year-old mother, who has dementia and needs much more caregiving help than her assisted living facility can provide. The care of her mother precludes Susan from obtaining full-time employment.
Private insurers have consistently refused to insure Susan because of her chronic asthma. Beverly’s declaration stated that “[e]ven if [she] were to

6a
persuade a private insurer to provide Susan with health coverage, [she] would not be able to secure a health plan with equivalent coverage.” Moreover, due to Beverly’s financial support, it is possible that Susan no longer qualifies for medical coverage through the state’s Medicaid program.
Another plaintiff, Joseph R. Diaz, an Associate Librarian at the University of Arizona, has been in a committed relationship for the last 17 years with Ruben E. Jiménez. Ruben enrolled in the state’s family coverage in 2008 and 2009, and he relied on this coverage in making a decision to leave his lowwage job with health benefits for a more promising position without health benefits. Ruben has high cholesterol and Type 2 diabetes, and requires daily medication and testing strips which would cost approximately $300 a month out of pocket. A private insurance agent informed Joseph and Ruben that “she could not locate any individual insurance plans in Arizona that would cover a person [like Ruben] with diabetes and high cholesterol.” Ruben earns $100 too much per month to qualify for indigent health care.
Defendants include the governor of Arizona, the interim Director of the Arizona Department of Administration (“ADOA”), and two other ADOA officials. They moved to dismiss the complaint on the ground that the complaint failed to state equal protection and substantive due process claims, and argued that the statute furthered valid legislative interests. It further argued that the governor was immune from suit.

7a
Plaintiffs opposed the motion and sought a preliminary injunction barring enforcement of the law. They submitted affidavits and other material to support their position that the law did not further any legitimate financial or administrative interest of the state. The supporting materials included the analysis of an expert that the entire state expenditure for domestic partner benefits represented a tiny fraction of the total employee healthcare benefits.
In a careful order, the court considered each of the possible state interests the law might be said to further and ruled that the law and the record negated each of them. Although plaintiffs argued heightened scrutiny was required, the district court applied rational basis review, but noting that such review is more searching when a classification adversely affects unpopular groups. Collins, 727 F. Supp. 2d at 804 (citing Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring)). We do not need to decide whether heightened scrutiny might be required.
While the district court noted that Section O was not discriminatory on its face, because it affected both same-sex and different-sex couples, the court held that Section O had a discriminatory effect. This is because, under Arizona law, different-sex couples could retain their health coverage by marrying, but same-sex couples could not. Id. at 802-03. Therefore, the district court granted plaintiffs’ request for a preliminary injunction on equal protection grounds.

8a
The court applied the appropriate standards for the grant of preliminary injunctive relief. See Fed. R. Civ. P. 65; see also Winter v. NRDC, 555 U.S. 7, 24-25 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 112627 (9th Cir. 2009). It concluded that the plaintiffs had established a likelihood of success on the merits and that they were likely to suffer irreparable harm if the injunction did not issue. Collins, 727 F. Supp. 2d at 811-14. In assessing the likelihood of success, the court examined each of the interests the state contended the statute furthered and found the statute was not rationally related to them. In addition, the district court tried to conceive of any additional interests to sustain Section O and concluded it could not.
The likelihood of the plaintiffs suffering irreparable harm was well documented by the plaintiffs’ affidavits. The health problems of domestic partners facing loss of healthcare benefits included a lifethreatening torn carotid artery, chronic asthma, and inability to obtain private insurance because of diabetes and high cholesterol. The court also considered the public interest and found it, as well as the balance of the equities, weighed in favor of granting injunctive relief. See Stormans, 586 F.3d at 1138-40.
The district court, however, denied plaintiffs’ claim that the law violated substantive due process rights, Collins, 727 F. Supp. 2d at 809, and that claim is not before us. The court also held that the governor was not immune from a suit seeking injunctive relief. Id. at 809-11; see Ex parte Young, 209 U.S. 123 (1908);

9a
Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000). Finally, the court considered the arguments of the parties concerning a bond and ruled that plaintiffs’ were not required to post one.
This appeal by the defendants followed. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), as an appeal of an interlocutory order for a preliminary injunction.
DISCUSSION
Defendants’ principal argument on appeal is that the district court, in granting the preliminary injunction, improperly accepted all of the plaintiffs’ allegations as true. This argument is premised on a fundamentally distorted misreading of the district court’s opinion. The court’s opinion was dealing with two separate and discrete motions. The first was the defendants’ motion to dismiss the complaint. The law is well settled that in deciding such motions the court is to accept the plaintiffs’ allegations as true. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). The district court properly did so here and its order makes it apparent that it understood the proper application of the rule. Collins, 727 F. Supp. 2d at 802.
After denying the defendants’ motion to dismiss, the court then considered the plaintiffs’ motion for a

10a
preliminary injunction. The court applied the appropriate standards, looking first at the likelihood of success on the merits. It reviewed each of the justifications for the law in light of the evidence in the record. Id. at 804-05. The most important was that the change furthered the state’s economic interests by reducing costs.
Of particular significance to the district court was the fact that while the plaintiffs produced expert analysis on the impact of the law on the state’s expenditures and found it minimal, id. at 811-12, the court was not provided any evidence of the actual amount of benefits the state paid for same-sex partners:
In opposition to the motion for a preliminary injunction, the State attaches a spreadsheet indicating that a total of 698 domestic partners participated in the State’s health plan in the 2008-2009 plan year, and 893 domestic partners participated in the 2009-2010 plan year. . . . However, no information is provided as to the number of same-sex domestic partners participating in the State health plan, nor the total claims of same-sex domestic partners.
Id. at 812 (footnote omitted).
The district court therefore rejected what the state said was the principle justification for the statute: cost savings. Id. The defendants, on appeal, do not seriously challenge this finding.

11a
The defendants, on appeal, also contend that the district court’s order impermissibly recognized a constitutional right to healthcare. Again, this contention rests on a misunderstanding of the court’s decision. The court held that the withholding of benefits for same-sex couples was a denial of equal protection. The state is correct in asserting that state employees and their families are not constitutionally entitled to health benefits. But when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular. The most instructive Supreme Court case involving arbitrary restriction of benefits for a particular group perceived as unpopular is U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973). In that case, Plaintiffs challenged the constitutionality of an amendment to the Food Stamp Act of 1964, which redefined the term “household” to limit the program’s eligible recipients to groups of related individuals. Id. at 529-30. While noting the “little legislative history” available on the amendment, the Court concluded that the legislation was aimed at groups that were unpopular. The “amendment was intended to prevent so-called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program.” Id. at 534.
In defending the amendment under rational basis review, the government contended that Congress might rationally have thought that the amendment would prevent fraud given the relative instability of households with unrelated individuals.

12a
Id. at 535. The Court rejected both justifications. The Court held that the “practical operation” of the amendment would allow the hippies, with means, who were allegedly abusing the program, to rearrange their housing status to retain eligibility, while excluding those who were financially unable to do so, i.e., “only those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility.” Id. at 538. Those excluded were like the same-sex partners in this case who, because they cannot marry, are unable to alter their living arrangements to retain eligibility. The Court concluded that the “hippie” amendment’s classification was “wholly without any rational basis.” Id. We must reach the same conclusion.
Here, as in Moreno, the legislature amended a benefits program in order to limit eligibility. Since in this case eligibility was limited to married couples, different-sex couples wishing to retain their current family health benefits could alter their status – marry – to do so. The Arizona Constitution, however, prohibits same-sex couples from doing so. Thus, this case may present a more compelling scenario, since the plaintiffs in Moreno were prevented by financial circumstances from adjusting their status to gain eligibility, while same-sex couples in Arizona are prevented by operation of law.
Defendants nevertheless contend on appeal that this law is rationally related to the state’s interests in cost savings and reducing administrative burdens.

13a
As the district court observed, however, the savings depend upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review. The Supreme Court in Eisenstadt v. Baird, 405 U.S. 438 (1972), was well aware of this principle when it quoted the eloquent words of Justice Robert H. Jackson, decrying the selective application of legislation to a small group:
The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.
Eisenstadt, 405 U.S. at 454 (quoting Ry. Express Agency v. New York, 336 U.S. 106, 112-113 (1949) (Jackson, J., concurring)).
The state has also argued that the statute promotes marriage by eliminating benefits for domestic partners, but the plaintiffs negated that as a justification. The district court properly concluded that the

14a
denial of benefits to same-sex domestic partners cannot promote marriage, since such partners are ineligible to marry. Collins, 727 F. Supp. 2d at 807. On appeal, the state has not seriously advanced this justification.
In sum, the district court correctly recognized that barring the state of Arizona from discriminating against same-sex couples in its distribution of employee health benefits does not constitute the recognition of a new constitutional right to such benefits. Rather, it is consistent with long standing equal protection jurisprudence holding that “some objectives, such as ‘a bare . . . desire to harm a politically unpopular group,’ are not legitimate state interests.” Lawrence, 539 U.S. at 580 (O’Connor, J., concurring) (quoting Moreno, 413 U.S. at 534) (alteration in the original); see also City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 447 (1985). Moreover, the district court properly rejected the state’s claimed legislative justification because the record established that the statute was not rationally related to furthering such interests. Collins, 727 F. Supp. 2d at 807. Contrary to the state’s assertions, the court did not place the burden on the state to prove a legitimate interest. After concluding that neither the law nor the record could sustain any of the interests the state suggested, the district court considered whether it could conceive of any additional interests Section O might further and concluded it could not. On appeal, the state does not suggest any interests it or the district court may have overlooked. The court ruled

15a
the plaintiffs had established a likelihood of success in showing the statute furthered no legitimate interest.
Finally, the state contends that the district court committed clear error by not considering whether plaintiffs should post a bond as required under Federal Rules of Civil Procedure Rule 65(c). Rule 65(c) provides that a district court may grant a preliminary injunction, “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” The district court retains discretion “as to the amount of security required, if any.” Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (internal quotation marks and citations omitted) (emphasis in the original). Here, the parties disputed whether a bond was required. The district court considered the arguments and properly invoked its discretion not to have plaintiffs post a bond in this matter. There was no error.
AFFIRMED.

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APPENDIX B UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

TRACY COLLINS; KEITH B. )

HUMPHREY; JOSEPH R. )

DIAZ; JUDITH MCDANIEL; ) 2:09-cv-02402 JWS

BEVERLY SECKINGER; STEPHEN RUSSELL; DEANNA PFLEGER; COREY SEEMILLER;

) ) )

ORDER AND OPINION

) [Re: Motions at

CARRIE SPERLING;

) Docket 22 and 31]

AND LESLIE KEMP,

)

Plaintiffs,

) )

vs.

)

JANICE K. BREWER, in )

her official capacity as

)

Governor of the State of )

Arizona; DAVID RABER, )

in his official capacity as )

Interim Director of the

)

Arizona Department of

)

Administration and

)

Personnel Board; KATHY )

PECKHARDT, in her

)

official capacity as Director )

of Human Resources for

)

the Arizona Department of Administration and Personnel Board,

) ) )

Defendants.

)

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I. MOTIONS PRESENTED
At docket 22, defendants Governor Janice K. Brewer, David Raber, and Kathy Peckhardt (collectively “the State”) move to dismiss the amended complaint filed by plaintiffs Tracy Collins, Keith B. Humphrey, Joseph R. Diaz, Judith McDaniel,1 Beverly Seckinger, Stephen Russell, Deanna Pfleger, Corey Seemiller, Carrie Sperling, and Leslie Kemp (collectively “plaintiffs”). At docket 23, plaintiffs oppose the motion. The State replies at docket 27. In addition, plaintiffs have filed a motion for preliminary injunction at docket 31. At docket 40, the State opposes the motion. Plaintiffs reply at docket 41. Oral argument on both motions was heard on June 28, 2010.
II. BACKGROUND
As part of the State’s personnel compensation system, the State provides subsidized health care benefits to eligible employees and their dependents. The Arizona Administrative Code currently defines dependents eligible to participate in the health benefit plan as an “employee-member’s spouse as provided by law or domestic partner,” and “[e]ach child,”2 which is defined as including a “natural child, adopted child,
1 Plaintiff Judith McDaniel’s claims recently became moot due to her obtaining new employment which provides family health insurance for her domestic partner. Doc. 31 at p. 2 n.1.
2 Ariz. Admin. Code § R2-5-416(C).

18a
or stepchild of the employee-member, retiree, former elected official, or domestic partner.”3
Section R2-5-101(22) of the Arizona Administrative Code defines “domestic partner” as a “person of the same or opposite gender who:”
a. Shares the employee’s or retiree’s permanent residence;
b. Has resided with the employee or retiree continuously for at least 12 consecutive months before filing an application for benefits and is expected to continue to reside with the employee or retiree indefinitely as evidenced by an affidavit filed at time of enrollment;
c. Has not signed a declaration or affidavit of domestic partnership with any other person and has not had another domestic partner within the 12 months before filing an application for benefits;
d. Does not have any other domestic partner or spouse of the same or opposite sex;
e. Is not currently legally married to anyone or legally separated from anyone else;
f. Is not a blood relative any closer than would prohibit marriage in Arizona;
3 Ariz. Admin. Code § R2-5-101(10).

19a
g. Was mentally competent to consent to contract when the domestic partnership began;
h. Is not acting under fraud or duress in accepting benefits;
i. Is at least 18 years of age; and
j. Is financially interdependent with the employee or retiree in at least three of the following ways:
i. Having a joint mortgage, joint property tax identification, or joint tenancy on a residential lease;
ii. Holding one or more credit or bank accounts jointly, such as a checking account, in both names;
iii. Assuming joint liabilities;
iv. Having joint ownership of significant property, such as real estate, a vehicle, or a boat;
v. Naming the partner as beneficiary on the employee’s life insurance, under the employee’s will, or employee’s retirement annuities and being named by the partner as beneficiary of the partner’s life insurance, under the partner’s will, or the partner’s retirement annuities; and
vi. Each agreeing in writing to assume financial responsibility for the welfare of

20a
the other, such as durable power of attorney; or
vii. Other proof of financial interdependence as approved by the Director.
Currently, state employees in homosexual domestic partnerships may obtain the same coverage bestowed upon married heterosexual couples, provided the lesbian or gay employee and her or his partner can satisfy the above criteria.4 The State provides approximately $750 million in health, dental, life disability, and vision benefits to approximately 140,000 State employees, retirees, and their dependents.5 Such employment benefits are commonly valued “at between one-fifth and one-third of total compensation.”6 Approximately 800 of the 140,000 participating State employees receive benefits for a qualifying domestic partner. A small fraction of those 800 employees receive benefits for a same-sex domestic partner.7
On August 20, 2009, the Arizona House of Representatives transmitted House Bill (“H.B.”) 2013 to defendant Brewer for review, consideration, and approval or rejection in her capacity as Arizona Governor. H.B. 2013 amends A.R.S. § 38-651, which authorizes the Department of Administration to
4 Ariz. Admin. Code § R2-5-101. 5 Doc. 19 at p. 7. 6 Id. at p. 33. 7 Id. at p. 31.

21a
expend funds on health and accident insurance for State employees and their eligible dependents. The amendment added a new section, Section O, which provides that “[f]or the purposes of this section, beginning October 1, 2009, ‘dependent’ means a spouse under the laws of this state, a child who is under nineteen years of age or a child who is under twenty-three years of age and who is a full-time student.”8
Section O eliminates family coverage for nonspouse domestic partners, whether they are of the same or different sex. Heterosexual domestic partners may continue to receive subsidized family health coverage by getting married. Same-sex couples are precluded from obtaining coverage because Section O limits coverage to “spouses” under the laws of Arizona. The Arizona Constitution prevents same-sex couples from marrying and prohibits the State from honoring a civil marriage entered by a same-sex couple in another jurisdiction.9 Similarly, the Arizona Revised Statutes limit marriage to “a male person and a female person.”10 Governor Brewer signed H.B. 2013 on September 4, 2009.
Section O specified an intended effective date of October 1, 2009. On September 25, 2009, the Department of Administration announced that it would
8 A.R.S. § 38-651(O). 9 Ariz. Const. Art. 30 § 1. 10 A.R.S. § 25-125.

22a
recognize November 24, 2009 as the effective date of the statute. On October 9, 2009, the Department posted another announcement indicating that, based on legal advice from the Office of the Attorney General, the definition of “dependent” for the State insurance plan year beginning October 1, 2009 would not be affected by H.B. 2013 so as not to impair the contractual expectations of State employees. On July 22, 2010, the State filed a notice indicating that the State’s current benefit plan, including domestic partner coverage, will be extended through December 31, 2010.11 The definition of “dependent” currently in place will remain effective through December 31, 2010; the new definition of “dependent” in H.B. 2013 will go into effect on January 1, 2011.
On January 7, 2010, plaintiffs filed an amended complaint against the State seeking declaratory and injunctive relief.12 Plaintiffs’ amended complaint alleges in part,
The selective withdrawal of family coverage from lesbian and gay State employees – while leaving family coverage intact for heterosexual State employees with a legally recognized spouse – will deny each Plaintiff equal compensation for equal work and discriminatorily inflict upon each Plaintiff and his or her family members anxiety, stress, risk of untreated or inadequately treated
11 Doc. 46. 12 Doc. 19.

23a
health problems, and potentially ruinous financial burdens.13
Plaintiffs’ complaint requests the court to enter judgment declaring that the portion of A.R.S. § 38651(O) that limits eligibility for family coverage to an employee-member’s “spouse” or a spouse’s child, “to the exclusion of lesbian and gay State employees with a committed same-sex life partner” violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
Plaintiffs’ complaint further requests the court to permanently enjoin defendants’ enforcement of the portion of A.R.S. § 38-651(O) that limits eligibility to an employee-member’s spouse and spouse’s child to the exclusion of lesbian and gay State employees with a same-sex life partner. In addition, plaintiffs request an order requiring defendants to “maintain family coverage, on terms equal to the family coverage [d]efendants offer to heterosexual State employees who marry a different-sex life partner, for [p]laintiffs and other qualifying lesbian and gay State employees with a committed same-sex life partner who satisfy the relevant eligibility criteria specified in the Ariz. Admin. Code § R2-5-101.”14
13 Doc. 19 at p. 3. 14 Id. at p. 46.

24a
All of the plaintiffs are highly skilled State employees whose job duties are equivalent to the duties of their heterosexual colleagues.15 Each of the nine plaintiffs and his or her domestic partner have enjoyed a long-term, committed, and financially interdependent relationship and would marry if Arizona law permitted same-sex couples to marry.16 Each plaintiff enrolled her or his domestic partner and/or domestic partner’s qualifying children for family coverage during the 2008 or 2009 open enrollment period, and each plaintiff and her or his domestic partner or partner’s children met the eligibility requirements for coverage at the time of enrollment and continue to meet those requirements.17 As result of the adoption and enforcement of Section O, each named plaintiff will lose health insurance coverage for his or her domestic partner, and/or domestic partner’s children on October 1, 2010.
III. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim made pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint.18 In reviewing a Rule 12(b)(6) motion to dismiss, “[a]ll allegations of material fact in the
15 Id. at p. 12. 16 Id. at pp. 13-30. 17 Id. at p. 10. 18 De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978).

25a
complaint are taken as true and construed in the light most favorable to the nonmoving party.”19 “Conclusory allegations of law, however, are insufficient to defeat a motion to dismiss.”20 A dismissal for failure to state a claim can be based on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”21 To avoid dismissal under Rule 12(b)(6), plaintiffs’ complaint must aver “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”22
IV. DISCUSSION
A. Motion to Dismiss
1. Equal Protection Claim
The State first argues that plaintiffs’ complaint fails to state a claim under the Equal Protection Clause of the Fourteenth Amendment because Section O passes constitutional muster under rational basis review. “The Equal Protection Clause of the Fourteenth Amendment commands that no State
19 Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997). 20 Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). 21 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). 22 al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citation omitted)).

26a
shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.”23 The first step in equal protection analysis, therefore, is to identify the classification of groups within the statute or regulations in question.24 “To accomplish this, a plaintiff can show that the law is applied in a discriminatory manner or imposes different burdens on different classes of people.”25
The State contends that Section O is a neutral policy that treats all unmarried employees equally. Plaintiffs argue that “Section O deliberately classifies State employees into two groups-heterosexual employees who are offered a way to qualify for family health insurance, and lesbian and gay State employees who are deprived of any way to qualify for those benefits,”26 and as such are denied equal compensation for equal work. Section O, when read together with Arizona Constitution Article 30 § 1, treats unmarried heterosexual State employees differently than unmarried homosexual employees. Heterosexual domestic partners may become eligible for family coverage under the State plan by marrying. Because
23 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quotation omitted).
24 Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 589 (9th Cir. 2008).
25 Id. (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995)).
26 Doc. 23 at p. 4.

27a
employees involved in same-sex partnerships do not have the same right to marry as their heterosexual counterparts, Section O has the effect of completely barring lesbians and gays from receiving family benefits. Consequently, the spousal limitation in Section O burdens State employees with same-sex domestic partners more than State employees with opposite-sex domestic partners.
While Section O is not discriminatory on its face, as applied Section O “unquestionably imposes different treatment on the basis of sexual orientation,”27 and makes benefits available on terms that are a legal impossibility for gay and lesbian couples. As a result, Section O denies lesbian and gay State employees in a qualifying domestic partnership a valuable form of compensation on the basis of sexual orientation. As early as 1990, the Ninth Circuit recognized that “state employees who treat individuals differently on the basis of their sexual orientation violate the constitutional guarantee of equal protection.”28 Because the spousal limitation in Section O imposes different burdens on the basis of sexual orientation, it is subject to scrutiny under the Equal Protection Clause.
27 In re Levenson, 560 F.3d 1145, 1147 (9th Cir. 2009) (quoting In re Marriage Cases, 183 P.3d 384, 441 (2008)).
28 Flores v. Morgan Hill Unified School Dist., 324 F.3d 1130, 1137 (9th Cir. 2003) (quoting High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir. 1990)).

28a
“The basic principles governing the application of the Equal Protection Clause of the Fourteenth Amendment are familiar.”29 In applying the Equal Protection Clause, the Supreme Court “has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of people in different ways.”30 The Equal Protection Clause does, however, deny States “the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute.”31 “A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ”32 Whether a statute “bears a rational relationship to a legitimate state interest is primarily an objective inquiry.”33
Plaintiffs contend that some form of heightened scrutiny should apply to an evaluation of Section O’s constitutionality, because it treats State employees
29 Eisenstadt v. Baird, 405 U.S. 438, 446 (1972) (citing Reed v. Reed, 404 U.S. 71 (1971)).
30 Reed, 404 U.S. at 75. 31 Id. at 75-76. 32 Id. at 76 (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). 33 Perry v. Schwarzenegger, 591 F.3d 1147, 1165 (9th Cir. 2010).

29a
differently on the basis of their sexual orientation; because homosexuals have experienced a history of purposeful unequal treatment and are politically vulnerable; and because sexual orientation is an immutable characteristic which does not bear upon a person’s ability to contribute to society as a productive employee. Some form of heightened scrutiny might apply to plaintiffs’ claims, but it is unnecessary to decide whether or which type of heightened scrutiny might apply to plaintiffs’ claims because plaintiffs have averred in their complaint sufficient factual matter, accepted as true, to state an equal protection claim that is plausible on its face even under the rational basis standard of review.34
Applying the rational basis standard, the question before the court is whether the spousal limitation in Section O bears “a rational relationship to an independent and legitimate legislative end.”35 The statute is presumed constitutional, and the burden is on those attacking the rationality of the legislative classification “to negative every conceivable basis which might support it.”36 However, “even the standard of rationality . . . must find some footing in the
34 See In re Levenson, 587 F.3d 925, 931(9th Cir. 2009). 35 Romer v. Evans, 517 U.S. 620, 633 (1996). 36 Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (internal citations and quotation omitted).

30a
realities of the subject addressed by the legislation.”37 Moreover, the court applies a “more searching form of rational basis review” when a classification harms politically unpopular groups or personal relationships.38
The State offers the following rationales for Section O: (1) the statute “will save the State millions of dollars per year”; (2) the statute will be “much easier to administer”;39 (3) “scarce funds for employee benefits are better spent on employees and dependents as defined in the new statute”; (4) “this benefit would be most valuable to married persons, who are more likely to have dependent children”; and, (5) the
37 Immigrant Assistance Project of Los Angeles County Federal of Labor v. I.N.S., 306 F.3d 842, 872 (9th Cir. 2002) (quoting Heller, 509 U.S. at 321).
38 See, e.g., Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring) (“When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”); U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (holding that an amendment preventing households containing unrelated individuals from receiving food stamps violated equal protection because it was intended to prevent “hippies” from participating in food stamp program); Romer, 517 U.S. at 632 (finding that an amendment that made it more difficult for one group of citizens – homosexuals – to seek aid from the government denies equal protection of the laws); Eisenstadt, 405 U.S. at 454 (concluding that under the Equal Protection Clause, the State could not outlaw distribution of contraceptives to unmarried persons but not to married persons).
39 Doc. 22 at 8-9.

31a
new statute “would further the rational, longstanding and well-recognized government interest in favoring marriage.”40 Plaintiffs argue there is no legitimate interest served by denying lesbian and gay State employees, including plaintiffs, equal compensation in the form of subsidized family coverage.
a. Cost Savings
The State argues that the cost savings of limiting benefits to “spouses” of employee-members is sufficient to satisfy the rational basis test. Plaintiffs argue that the State may not “protect the public fisc by drawing an invidious distinction between classes of its citizens.”41 The court must agree, for the Supreme Court has held that, although “a State has a valid interest in preserving the fiscal integrity of its programs,” the State may not attempt to “limit its expenditures . . . by invidious distinctions between classes of its citizens.”42 That proposition applies here because the spousal limitation in Section O rests on an invidious distinction between heterosexual and homosexual State employees who are similarly situated.43
40 Id. at 10. 41 Doc. 23 at 9 (quoting Memorial Hospital v. Maricopa County, 415 U.S. 250, 263 (1974)). 42 Graham v. Richardson, 403 U.S. 365, 374 (1971) (quoting Shapiro v. Thompson, 394 U.S. 618, 633 (1969)). 43 Eisenstadt, 405 U.S. at 454.

32a
Plaintiffs allege that offering family coverage to “the small pool of lesbian and gay State employees who otherwise are categorically barred from family coverage because they cannot marry causes only negligible costs for the State.”44 Plaintiffs’ complaint specifically alleges that “family coverage for lesbian and gay State employees with a same-sex life partner costs far less than the half-of-one-percent-of-healthcosts figure . . . attributable to unmarried domestic partners generally,”45 and that “the minimal costs of offering family coverage to lesbian and gay State employees is offset by the resulting reduced use of AHCCCS,46 which is more costly on average to the State than allowing employees to share the cost of their health insurance by paying a portion of the premium for family coverage.”47 For purposes of the motion to dismiss, these facts must be accepted as true. Thus, plaintiffs have demonstrated that denying benefits to same-sex domestic partners of State employees is not rationally, much less substantially, related to the purported rationale of cost savings.
Moreover, if the State’s interest were “simply saving money, the companion goal of promoting

44 Doc. 19 at p. 31. 45 Id. 46 Arizona Health Care Cost Containment (“AHCCCS”) is Arizona’s Medicaid agency. 47 Doc. 19 at p. 32.

System

33a
marriage would seem to do the opposite.”48 If Section O succeeds in promoting marriage, the State will have to provide health benefits to more people, thus increasing the State’s expenditures.
b. Administrative Efficiency
The State next argues that restricting the definition of “dependent” to “spouse” in Section O results in a benefits system that is easier to administer, and that “simplifying a complex administrative program is the sort of rational basis that justifies a distinction between married and unmarried participants.”49 Plaintiffs claim that “purported administrative convenience [cannot] justify singling out lesbian and gay employees for disfavored treatment.”50
The Supreme Court noted in Frontiero v. Richardson that “although efficacious administration of governmental programs is not without some importance, ‘the Constitution recognizes higher values than speed and efficiency.’ ”51 While the State claims that “the restricted definition of dependent results in a benefits system that is much easier and less expensive to administer,” the savings arise from an impermissible invidious classification which imposes costs
48 Alaska Civil Liberties Union v. State of Alaska, 122 P.3d 781, 790 (Alaska 2005).
49 Doc. 22 at p. 9. 50 Doc. 23 at p. 10. 51 411 U.S. 677, 690 (1973) (quoting Stanley v. Illinois, 405 U.S. 645, 656 (1972)).

34a
on lesbians and gays by stripping their dependents of health care benefits, which the dependents of their heterosexual counterparts would continue to enjoy.
In addition, the State has already implemented a set of criteria domestic partners must meet to show their financial interdependence, commitment, and dependency and has successfully applied the criteria to those few State employees who apply for benefits for their same-sex domestic partners. There is little or no continuing administrative burden on the State in providing health coverage to plaintiffs and their partners, all of whom have already met the eligibility requirements for coverage. Applying the existing standards to the occasional new gay or lesbian applicant would be a minimal burden.
c. Funds Better Spent on Heterosexual Spouses
The State contends that another rational basis for the spousal limitation in Section O is that “scarce funds for employee benefits are better spent on employees and dependents as defined in the new statute.”52 Plaintiffs argue that the State’s rationale is discriminatory on its face, and not a rational state interest. The court concurs. The State’s justification raises “the inevitable inference that the disadvantage imposed is born of animosity toward the class of
52 Doc. 22 at p. 10.

35a
persons affected,”53 namely toward same-sex domestic partners who by law cannot become spouses. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”54 “Romer makes clear that a simple desire to treat gays and lesbians differently is not, in and of itself, a proper justification for government actions. Discrimination against gays and lesbians, or samesex couples, must, at the very least, serve some more substantive and lawful function.”55
d. Interest in Favoring Marriage and Families with Children
The State also contends that limiting family coverage to “spouses” and their children is rational because it would further the “long-standing and wellrecognized government interest in favoring marriage” and family coverage “would be more valuable to married persons, who are more likely to have dependent children.”56 Plaintiffs argue that the State’s purpose to favor or promote marriage “simply restates an intent to privilege [heterosexual] employees
53 Romer, 517 U.S. at 635. 54 Id. (quoting Moreno, 413 U.S. at 534). 55 Levenson, 587 F.3d at 932 (citing Romer v. Evans, 517 U.S. 620 (1996)). 56 Doc. 22 at p. 10.

36a
along invidious lines.”57 In addition, plaintiffs indicate that six out of the nine same-sex couples represented in this action are raising children together. Plaintiffs further claim that “Section O cannot be said to promote the welfare of children” when its effect is to “arbitrarily strip[ ] benefits from one group of employees with children who are no less worthy of insurance.”58
The State cites Irizarry v. Board of Education of the City of Chicago59 for the proposition that the government’s interest in favoring marriage and procreation is “rational, long-standing and wellrecognized.”60 However, Irizarry did not decide the question of whether the promotion of marriage was a rational justification for distinguishing between heterosexuals and homosexuals.61 In any event, unlike Irizarry, the question before this court is whether Section O’s distinction between heterosexual and homosexual employees is rationally related to the State’s interest in promoting marriage and families with children. The court concludes that it is not.
57 Doc. 23 at p. 12. 58 Id. 59 251 F.3d 604 (7th Cir. 2001). 60 Doc. 22 at 10 (citing Irizarry, 251 F.3d at 607). 61 Irizarry, 251 F.3d at 607-08.

37a
The Supreme Court has characterized marriage as “the most important relation in life,”62 but construing the facts of the complaint as true it cannot be said that Section O’s distinction between heterosexual and homosexual employees is legitimately, rationally, and substantially related to promoting that interest. Certainly, that aspect of Section O which is challenged, the denial of benefits to State employee’s same-sex domestic partners, cannot promote marriage because gays and lesbians are ineligible to marry.63 It is only by denying benefits to heterosexual domestic partners that marriage might be promoted. However, denying benefits to heterosexual partners (who can marry in order to obtain benefits) does not require denial of those benefits to homosexual partners (who cannot marry). It is possible that the State’s proffered interest in promoting or protecting marriage and procreation is a post hoc justification in response to litigation.64
The State’s interests in cost control, administrative efficiency, and promotion of marriage are legitimate. However, construing the facts alleged in the complaint as true, the absolute denial of benefits to
62 Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (quoting Maynard v. Hill, 125 U.S. 190, 205 (1888)).
63 Alaska Civil Liberties Union v. State of Alaska, 122 P.3d 781, 793 (Alaska 2005).
64 United States v. Virginia, 518 U.S. 515, 532 (1996) (“The justification must be genuine, not hypothesized or invented post hoc in response to litigation.”)

38a
employees with same-sex domestic partners is not rationally and substantially related to these governmental interests. Moreover, the court cannot identify any other governmental interests that might be served by denying plaintiffs the same access to family medical coverage afforded to heterosexual State employees.65 Accordingly, the court denies the State’s motion to dismiss plaintiffs’ equal protection claim.
2. Substantive Due Process Claim
The State next moves to dismiss plaintiffs’ claims under the Substantive Due Process Clause of the Fourteenth Amendment for failing to state a claim upon which relief may be granted. Plaintiffs argue that Section O burdens their fundamental right to form and sustain intimate family relationships under the substantive due process framework articulated in Lawrence v. Texas66 and Witt v. Department of the Air Force.67
The State argues, on the other hand, that the State’s refusal to fund the exercise of even a fundamental right does not amount to an interference with that right, citing Ysursa v. Pocatello Education Association.68 The State further asserts that Section O in
65 Levenson, 587 F.3d at 934. 66 539 U.S. 558 (2003). 67 527 F.3d 806 (2008). 68 ___ U.S. ___, 129 S.Ct. 1093 (2009).

39a
no way burdens plaintiffs’ liberty interests because, assuming plaintiffs’ allegations are true, their “longterm and stable relationships . . . flourished years before the domestic partner benefit was first established in 2008.”69 Finally, the State claims that “[i]t cannot be seriously contended that optional employees health insurance is deeply rooted in the Nation’s history and traditions”70 and, therefore, “is not a fundamental right protected by due process.”71
The State has the more persuasive argument. As an initial matter, Ysursa held, in the context of a free speech challenge to Idaho’s ban on public-employee payroll deductions for political activities, that a State’s “decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.”72 Thus, even if the court were to find that plaintiffs’ right to form and sustain intimate family relationships was indirectly burdened, it would be constitutionally permissible, under rational basis review, for the State to discontinue funding health benefits. While plaintiffs are correct that the availability of health insurance is a “valuable benefit of employment,” there is no fundamental right to such a benefit. Although it likely
69 Id. 70 Id. at 13. 71 Doc. 27 at 7. 72 Ysursa, 129 S.Ct. at 1098 (quoting Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549 (1983)).

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would put the State at a competitive hiring disadvantage, it is free to refuse its employees health benefits under the U.S. Constitution.
In that regard, the State is also correct that State employees do not have a fundamental right to dependent health benefits. This is not a case like Lawrence, where the right to engage in private, consensual sexual activity was burdened by a law banning homosexual conduct which, in turn, burdened the rights of homosexuals to engage in private relations within their own home, which was deemed fundamental. Here, plaintiffs’ stated right to form and sustain family relationships is not burdened by Section O. As the State points out, most of the plaintiffs have been in committed relationships with their respective domestic partners for upwards of 20 years, commencing long before domestic partner benefits were extended to them. Moreover, it is not tenable to assert that people who are devoted to one another in the manner of the plaintiffs would opt to avoid commitment simply because one partner could not secure health benefits for the other.
Plaintiffs’ argument that Witt “made clear that adverse employment actions – such as Section O’s elimination of valuable health benefits-constitute sufficient injury to give rise to an actionable due process claim” ignores the salient limitation in Witt, namely, that Lawrence-based claims must involve a government intrusion of some sort. Indeed, Witt set forth the following heightened scrutiny analysis to be

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used in evaluating a Lawrence-based substantive due process claim,
[W]hen the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.73
Here, plaintiffs have been unable to articulate the way in which the State has intruded into their personal and private affairs. Indeed, under the present statutory scheme, the State intrudes far deeper into plaintiffs’ lives by inquiring of their eligibility for domestic partner benefits than it would after Section O’s implementation. Because plaintiffs cannot point to a constitutionally remediable intrusion, plaintiffs have failed to state a substantive due process claim that is plausible on its face and their substantive due process claim is dismissed. As discussed above, plaintiffs’ remedy lies in the Equal Protection Clause.
73 Witt, 527 F.3d at 819.

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3. Immunity of Defendant Brewer
Finally, the State contends that “because Governor Brewer is entitled to legislative immunity for signing [H.B.] 2013 and 42 U.S.C. § 1983 does not permit claims for vicarious liability, she should be dismissed from this lawsuit.”74 Plaintiffs argue that they do not seek an order in connection with Governor Brewer’s signing H.B. 2013 or an order based on vicarious liability.75 Rather, plaintiffs seek to enjoin Governor Brewer from enforcing Section O based on her specific statutory duty in A.R.S. § 41-703(1) to oversee the Department of Administration’s operations to eliminate family health insurance eligibility for same-sex domestic partners of State employees.76 Plaintiffs’ amended complaint alleges in pertinent part:
168. Upon information and belief, Defendant Brewer has the duty and authority to ensure that the Department implements Section O, and through her own individual actions, has acted and, if not enjoined, will continue to act personally to violate Plaintiffs’ right to equal protection by implementing Section O to strip Plaintiffs discriminatorily of access to family coverage for a committed
74 Doc. 27 at p. 11. 75 Doc. 41 at pp. 7-8. 76 A.R.S. § 41-703(1) provides that the director of the Department of Administration shall “[b]e directly responsible to the governor for the direction, control and operation of the department.”

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same-sex life partner, thereby proximately causing Plaintiffs’ injury.77
The State argues that if plaintiffs’ argument is accepted, Governor Brewer “could be sued every time someone challenges the constitutionality of any statute . . . based on the general theory that a state’s chief executive is charged with the enforcement of all its laws.”78 Perhaps that is so, but it is hard to see why that makes a difference. Moreover, in another action pending before this court which seeks injunctive and declaratory relief based on the passage of Senate Bill 1017, Governor Brewer sought and received leave to intervene “both in her official capacity and on behalf of the State of Arizona-pursuant to her role as the highest executive voice in the State and to ensure that SB 1070 is ‘faithfully executed.’ ” In support, Governor Brewer argued that “Article 5, Section 4 of the Arizona Constitution provides [the governor] with the duty to ‘take care that the laws be faithfully executed’ and to ‘transact all executive business with the officers of the government. . . .’ ”79 Governor Brewer is subject to suit in her role as “the highest executive voice in the State” in this action as well.
77 Doc. 19 at p. 36. 78 Doc. 27 at p. 9. 79 Friendly House v. Whiting, 2:10-cv-01061, Doc. 51 at p. 5.

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Citing al-Kidd v. Ashcroft,80 plaintiffs also seek to enjoin defendant Brewer based on her status as an official with supervisory responsibility. The State argues that even if Governor Brewer is responsible for supervising the other named defendants, “a supervisor may be liable only if the supervisor is personally involved in the constitutional deprivation or there is a causal connection between the supervisor’s conduct and the constitutional violation.”81
In al-Kidd, the Ninth Circuit recognized that “direct, personal participation is not necessary to establish liability for a constitutional violation.”
Supervisors can be held liable for the actions of their subordinates (1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinate; or (4) for conduct that shows a ‘reckless or callous indifference to the rights of others.’82
80 580 F.3d 949 (9th Cir. 2009). 81 Doc. 22 at p. 15. 82 al-Kidd, 580 F.3d at 965.

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“Any one of these bases will suffice to establish the personal involvement of the defendant in the constitutional violation.”83
Plaintiffs’ amended complaint alleges that defendant Brewer “directly caused action by others to enforce and implement Section O which [she] knew, or reasonably should have known, would cause others to inflict these constitutional injuries upon Plaintiffs”; “knowingly refused to prevent anticipated action by others who are charged to implement State law and policies under her supervision, including Section O’s elimination of family coverage for Plaintiffs”; “has caused and acquiesced in this constitutional deprivation to be effectuated by her subordinates”; and, “has engaged in conduct demonstrating a reckless and callous indifference to the constitutional rights of Plaintiffs.”84
Taken as true, plaintiffs have pled enough facts to state a claim of supervisory liability against defendant Brewer that is plausible on its face. “Were this case before [the court] on summary judgment, and were the facts pled in the complaint the only ones in the record, [the court’s] decision might well be different.”85 However, the plausibility standard “does not impose a probability requirement at the pleading
83 Id. 84 Doc. 19 at p. 37 85 al-Kidd, 580 F.3d at 977.

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stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence to prove that claim.”86
B. Motion for Preliminary Injunction
Plaintiffs seek a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 enjoining the State from enforcing the portion of A.R.S. § 38-651(O) that restricts family health insurance to State employees with a spouse “to the extent that Section O eliminates Plaintiffs’ eligibility to qualify for State employee family health insurance covering each Plaintiff ’s same-sex life partner and that partner’s qualifying children.”87 As explained by the Supreme Court, “plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest.”88
1. Likelihood of Success on the Merits
The State argues that plaintiffs “have no chance of success on the merits unless they can establish
86 Id. 87 Doc. 31 at p. 2. 88 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v. Natural Resources Defense Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 374 (2008)).

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that there is no possible rational basis for the new definition of dependent.”89 As discussed above, construing the facts alleged in the complaint as true, plaintiffs have demonstrated that the absolute denial of benefits to employees with same-sex domestic partners is not rationally and substantially related to the State’s purported interests in cost savings, administrative efficiency, and favoring marriage and families with children.
In support of their motion for preliminary injunctive relief, plaintiffs attach further evidence that Section O is not rationally related to the State’s purported interests in cost savings and administrative efficiency, including a report produced by the State, entitled “Annual Check-Up Benefit Options October 1, 2008 through September 30, 2009,” which summarizes the efficiency and effectiveness of the State health plan during 2008-2009, the first year the State provided coverage for employees’ domestic partners and their children. The report states in relevant part,
In review, the 2008-2009 Plan Year demonstrated a balance of expenses and premiums that allowed the State to offer members comprehensive and affordable insurance coverage. The State effectively controlled the rise in health care costs through quality benefit design, administrative oversight,
89 Doc. 40 at p. 6.

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strategic audit planning and efficient contracts management.90
Plaintiffs also attach evidence showing that domestic partner coverage for both same-sex and opposite-sex partners costs the State about $3 million in 20082009, in comparison to the $625 million the State spent on health insurance for other employees.91 Plaintiffs further provide an economist’s estimate that “when employees’ same-sex partners are provided access to an employer’s health plan, enrollment tends to increase by 0.1% to 0.3%.”92 The economist further states that the cost of family coverage for lesbian and gay employees comprises “between 0.06% and 0.27%” of the State’s total spending on health benefits.93 This evidence further increases the likelihood of plaintiffs’ success on the merit of their equal protection claim.
In opposition to the motion for a preliminary injunction, the State attaches a spreadsheet indicating that a total of 698 domestic partners participated in the State’s health plan in the 2008-2009 plan year, and 893 domestic partners participated in the 20092010 plan year. The spreadsheet also lists the total of $4,076,822 claims for domestic partners in 2008-2009, and $5,490,660 for domestic partner claims in the
90 Doc. 32-1 at p. 8. 91 Doc. 32-2 at p. 2. 92 Doc. 42 at p. 3. 93 Id. at p. 5.

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2009-2010 plan year to date.94 However, no information is provided as to the number of same-sex domestic partners participating in the State health plan, nor the total claims of same-sex domestic partners.
For the reasons set out in the court’s discussion of the motion to dismiss and based on the further evidence provided by plaintiffs in support of their motion for preliminary injunctive relief, plaintiffs have demonstrated a likelihood of success on the merits on their equal protection claim.
2. Irreparable Harm
In Winter, the Supreme Court “clarified that preliminary injunctive relief is available only if plaintiffs ‘demonstrate that irreparable injury is likely in the absence of an injunction,’ ” not merely possible.95 Plaintiffs have demonstrated several kinds of irreparable harm. First, because plaintiffs have shown a likelihood of success on the merits of their equal protection claim, plaintiffs have demonstrated the harm of unconstitutional discrimination based on sexual orientation if injunctive relief is not granted. The Ninth Circuit has stated that “an alleged constitutional infringement will alone constitute irreparable
94 It is unclear whether these figures reflect premiums paid by employees.
95 Johnson v. Couturier, 572 F.3d 1067, 1078 (9th Cir. 2009) (quoting Winter, 129 S.Ct. at 374).

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harm.”96 “Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm.”97
Plaintiffs have also demonstrated that they are likely to suffer extreme anxiety and stress in the absence of an injunction enjoining the State from enforcing Section O to eliminate family health insurance eligibility for lesbian and gay State employees. Like the loss of one’s job, the loss of one’s job benefits “does not carry merely monetary consequences; it carries emotional damages and stress, which cannot be compensated by mere back payment of wages.”98 Plaintiffs’ declarations document that some of them might not be able to secure private health coverage for their domestic partners who have serious preexisting health conditions and have been refused private coverage in the past.99 Several plaintiffs’ domestic partners have medical conditions requiring daily medication and consistent treatment that if left untreated will likely lead to irreversible health consequences.100 In addition, plaintiffs’ declarations
96 Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Assoc. General Contractors v. Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir. 1991)).
97 Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008). 98 Id. 99 See, e.g., Doc. 31-1 at pp. 2-4; Doc. 31-4 at p. 3; Doc. 31-5 at pp. 2-3; Doc. 31-6 at p. 3, Doc. 31-9 at p. 3. 100 See, e.g., Doc. 31-1; Doc. 31-4; Doc. 31-5; Doc. 31-6.

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substantiate the stress of incurring greater financial burdens to provide private insurance coverage for their domestic partners and their children.101
Plaintiffs further document the financial hardship that losing family coverage through the State health plan will impose on their families.102 While “[i]t is true that economic injury alone does not support a finding of irreparable harm, because such injury can be remedied by a damage award,”103 all plaintiffs have demonstrated other harms than economic injury, including the stigma of discriminatory treatment and the harm of receiving unequal compensation for equal work.
The State argues that plaintiffs will not suffer irreparable harm because they will likely be able to obtain coverage for their domestic partners and their children either through private insurance coverage, the Arizona Medicaid agency, or through the employers of their domestic partners. Even assuming that is true, the Ninth Circuit has recognized there is “an inherent inequality” in allowing some employees to participate fully in the State’s health plan, while expecting other employees to rely on other sources, such as private insurance or Medicaid. “This ‘back of
101 See, e.g., Doc. 31-3 at p. 4; Doc. 31-4 at p. 3. 102 See, e.g., Doc. 31-3 at p. 4; Doc. 31-4 at p. 3; Doc. 31-5 at p. 3; Doc. 31-7 at p. 3; Doc. 31-8 at p. 3; Doc. 31-9 at p. 4. 103 Rent-A-Center, Inc. v. Canyon Television, 944 F.2d 597, 603 (9th Cir.1991).

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the bus’ treatment relegates Plaintiffs to a secondclass status by imposing inferior workplace treatment on them, inflicting serious constitutional and dignitary harms that after-the-fact damages cannot adequately redress.”104 For all of the above reasons, plaintiffs have demonstrated the likelihood of irreparable harm in the absence of injunctive relief.
3. Balance of Equities
“To qualify for injunctive relief, the plaintiffs must establish that ‘the balance of equities tips in [their] favor.’ ”105 “In assessing whether the plaintiffs have met this burden, the district court has a ‘duty . . . to balance the interests of all parties and weigh the damage to each.’ ”106 Plaintiffs argue that the “extreme hardship to plaintiffs of foregoing family insurance, or paying significantly more for an inferior alternative, greatly outweighs the negligible cost to [the State] of maintaining the status quo.”107 Plaintiffs further argue that continuing plaintiffs’ coverage in a group health plan that the Department of Administration admitted has functioned efficiently and successfully with plaintiffs’ participation imposes
104 Doc. 31 at p. 15 (quoting In re Golinski, 587 F.3d 956, 960 (9th Cir. 2009))
105 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009) (quoting Winter, 129 S.Ct. at 374)
106 Id. (citing L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980)).
107 Doc. 31 at p. 16.

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a small burden on defendants, if any at all. In addition, plaintiffs contend that any attempt to compensate plaintiffs with damages would be inadequate to remedy the irreparable harms of inequitable treatment and the stress and anxiety caused by the loss of benefits.
The State argues that the balance of equities favors the State, contending that plaintiffs’ out-ofpocket expenses and private health insurance costs would be minimal compared to the costs of continuing domestic partner coverage. The State, however, has not provided any evidence showing the costs to the State of providing coverage for same-sex domestic partners who meet the criteria set forth in Ariz. Admin. Code § R2-5-101. To the contrary, although the State suggests entry of a preliminary injunction will worsen the State’s budget shortfall, the record indicates that the impact of an injunction on the State’s budget shortfall would be minimal, particularly in light of the unrefuted estimate that the cost of family coverage for lesbian and gay employees comprises “between 0.06% and 0.27%” of the State’s total spending on health benefits.108
The State further argues that granting preliminary injunctive relief and awarding plaintiffs’ domestic partner benefits, even temporarily, would “cause harm to other constituents of State services,” suggesting that continuing plaintiffs’ domestic partner
108 Doc. 42 at p. 5.

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benefits “would cause potential budget cuts for education, indigent health care, public safety, social programs, or perhaps layoffs for some more State employees like the plaintiffs, in order to pay for the domestic partner coverage.”109 The State’s argument, which is not supported by any evidence, is speculative at best, and discriminatory at worst. Contrary to the State’s suggestion, it is not equitable to lay the burden of the State’s budgetary shortfall on homosexual employees, any more than on any other distinct class, such as employees with green eyes or red hair. “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.”110 Based on the record, the court concludes that the balance of equities tips in favor of plaintiffs.
4. Public Interest
“The public interest analysis for the issuance of a preliminary injunction requires us to consider ‘whether there exists some critical public interest that would be injured by the grant of preliminary relief.’ ”111 The State contends that the public’s interest in reducing the cost of State employees’ health
109 Doc. 40 at p. 14. 110 Romer, 517 U.S. at 633 (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). 111 Independent Living Center of Southern California, Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir. 2009) (quoting Hybritech Inc. v. Abbott Labs., 849 F.2d 1446, 1458 (Fed.Cir. 1988)).

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coverage would be injured by granting injunctive relief. However, as discussed above, the record demonstrates that the impact of injunctive relief on the [sic] Arizona’s total expenditures for health coverage for State employees would be minimal. Accordingly, the State’s budgetary considerations do not “constitute a critical public interest that would be injured by the grant of preliminary relief.”112
On the other hand, it would not be in the public’s interest to allow the State to violate the plaintiffs’ rights to equal protection when there are no adequate remedies to compensate plaintiffs for the irreparable harm caused by such violation.113 The public interest weighs in favor of injunctive relief. Because plaintiffs have demonstrated that they are likely to succeed on the merits of their equal protection claim, that they face a significant threat of irreparable injury, and that the balance of equities and the public interest favor them, the court will grant the motion for preliminary injunction.
V. CONCLUSION
For the reasons set forth above, the State’s motion to dismiss at docket 22 is GRANTED in part and DENIED in part as follows: (1) the motion is DENIED with respect to plaintiffs’ equal protection
112 Id. 113 California Pharmacists Ass’n, 563 F.3d at 852-853.

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claim; (2) the motion is GRANTED with respect to plaintiffs’ substantive due process claim; and (3) the motion is DENIED as to defendant Brewer’s claim of immunity.
It is FURTHER ORDERED that plaintiffs’ motion for preliminary injunction at docket 31 is GRANTED as follows:
1) Defendants are enjoined from enforcing A.R.S. § 38-651(O) to eliminate family insurance eligibility for lesbian and gay State employees, and their domestic partners and domestic partners’ children who satisfy the criteria set forth in Ariz. Admin. Code § R2-5-101;
2) Defendants are required to make available family health insurance coverage for lesbian and gay State employees, including plaintiffs, who satisfy the relevant eligibility criteria set forth in Ariz. Admin. Code § R2-5-101 to the same extent such benefits are made available to married State employees;
3) The preliminary injunction shall take effect within ten (10) business days and shall remain in effect pending trial in this action or further order of the court.
DATED this 23rd day of July, 2010.
/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

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APPENDIX C
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSEPH R. DIAZ; JUDITH MCDANIEL; KEITH B. HUMPHREY; BEVERLY SECKINGER; STEPHEN RUSSELL; DEANNA PFLEGER; CARRIE SPERLING; LESLIE KEMP; COREY SEEMILLER,

Plaintiffs-Appellees,

v.

No. 10-16797

JANICE K. BREWER, in her official capacity as Governor of the State of Arizona; DAVID RABER, in his official capacity as Interim Director of the Arizona Department of

D.C. No. 2:09-cv-02402-JWS District of Arizona,
Phoenix

Administration and Personnel

ORDER

Board; KATHY PECKARDT, in her

official capacity as Director of

Human Resources for the Arizona

Department of Administration

and Personnel Board,

Defendants-Appellants.

Filed April 3, 2012
Before: Mary M. Schroeder and Sidney R. Thomas, Circuit Judges, and Mark W. Bennett,* District Judge.

* The Honorable Mark W. Bennett, United States District Judge for the District of Northern Iowa, sitting by designation.

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Order; Dissent by Judge O’SCANNLAIN.
ORDER
The panel has voted to deny defendantsappellants’ petition for panel rehearing. Judge Thomas has voted to deny the petition for rehearing en banc, and Judges Schroeder and Bennett have so recommended.
The full court was advised of defendantsappellants’ petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.
Defendants-appellants’ petition for panel rehearing and petition for rehearing en banc are denied.
O’SCANNLAIN, Circuit Judge, joined by BEA, Circuit Judge, dissenting from the order denying rehearing en banc:
In this case a three-judge panel of our court holds that a state law limiting state-employee dependentpartner health benefits to spouses – and thus denying such benefits to dependent domestic partners – could not survive rational basis review. Although most of those affected adversely by the law would be oppositesex couples, the panel concluded that the law irrationally discriminated against gays and lesbians.

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The panel’s holding rests on a disparate impact theory that the Supreme Court has squarely rejected and on a misapprehension of rationality review. The panel also all but expressly held that opposite-sexonly marriage rules are unconstitutional – indeed, that such rules are irrational per se because they can rest only on a “bare desire to harm a politically unpopular group.” 656 F.3d 1008, 1015 (internal quotation marks and ellipses omitted).
Such a dramatic expansion of circuit law – particularly one beset by critical legal errors – should not have been taken without considered reflection by a larger cohort of our court. I respectfully dissent from the regrettable failure of our court to rehear this case en banc.
I
Until 2008, the State of Arizona limited stateemployee dependent-partner health benefits to dependent spouses. In April of that year, Arizona’s administrative code was amended to extend such benefits to qualified domestic partners, whether of the same or opposite sex as the state employee. 656 F.3d at 1010; see Ariz. Admin. Code R2-5-101(22) (Apr. 25, 2008) (for purposes of granting benefits to state employees, a “domestic partner” is one who, among other requirements, had shared a residence with the state employee for at least 12 consecutive months before applying for benefits, was financially

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interdependent with the employee, and was not married or in another domestic partner relationship).
Soon after this amendment was made, the State began to deal with a severe budget crisis. The State had a projected $400 million deficit in June 2008 and a reported $1.6 billion deficit by early 2009. As part of a budget reconciliation bill addressing that crisis, in 2009 the state legislature enacted Section O, which limits state-employee dependent-partner health benefits to employees’ spouses. 656 F.3d at 1010; see Ariz. Rev. Stat. § 38-651(O). Section O would have halted such benefits for dependent domestic partners, whether of the opposite or the same sex as the state employee.
The plaintiffs are several gay and lesbian state employees with committed domestic partners. They filed suit in November 2009 seeking a declaration that Section O violates the equal protection and due process clauses of the Fourteenth Amendment and an order permanently enjoining Section O from being enforced. In July 2010 the district court preliminarily enjoined Section O as a likely violation of the equal protection clause. 727 F. Supp. 2d 797 (D. Ariz. 2010).
The panel affirmed the preliminary injunction. Although Section O on its face applies to employees in both opposite-sex and same-sex domestic partner relationships, it concluded that the provision drew an irrational classification because opposite-sex partners could escape Section O’s effect by marrying, whereas same-sex couples in Arizona may not do so because the state constitution limits marriage to unions

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between one man and one woman. See 656 F.3d at 1014. The panel rejected the State’s argument that Section O is justified by the State’s pressing need to cut costs in the face of a historic budget crisis. It reasoned that “the savings depend upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review.” Id. The panel rejected all other justifications for Section O, condemning it as an “arbitrary” law that “adversely affects [a] particular group[ ] that may be unpopular.” Id. at 1013.
II
With respect, I suggest that the panel’s equal protection analysis suffers from two significant errors.
A
The panel disregarded the requirement that a plaintiff alleging an equal protection violation must show that state action “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Wayte v. United States, 470 U.S. 598, 608 (1985) (emphasis added).
For nearly fifty years the Supreme Court has made clear that its cases “have not embraced the proposition that a law or other official act, without regard to whether it reflects a . . . discriminatory purpose, is unconstitutional solely because it has a

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. . . disproportionate impact.” Washington v. Davis, 426 U.S. 229, 239 (1976); see, e.g., City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) (“We have made clear that proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”) (brackets and internal quotation marks omitted); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (same).
The panel side-stepped this fundamental proposition. It cited no evidence that Section O was adopted with an intent to discriminate. The panel instead embraced the district court’s rationale that the law violated equal protection because of its supposed disparate impact. But as the cases just cited make clear, such a showing could not alone invalidate Section O on equal protection grounds even under the highest level of judicial scrutiny.
Rather than apply that settled law, the panel concluded that United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973), required a different result because (in the panel’s view) Section O “adversely affects [a] particular group[ ] that may be unpopular.” 656 F.3d at 1013. Moreno struck down as irrational an amendment to the Food Stamp Act that rendered ineligible for assistance any household containing a person unrelated to any other member of the household. Taking stock of legislative history “indicat[ing] that th[e] amendment was intended to prevent so-called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program,” the Court

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concluded that the amendment was motivated by “a bare congressional desire to harm a politically unpopular group,” which “cannot constitute a legitimate governmental interest.” 413 U.S. at 534 (emphasis added; other emphasis omitted). Moreno did not rest only on the law’s adverse effect; rather, it applied the equal protection principles set forth above to strike down a law motivated by a discriminatory purpose.
There is no such evidence that Section O was motivated by animus. Section O’s context and history bears out that it rests entirely on budgetary considerations. Until 2008, Arizona limited state-employee dependent-partner health benefit coverage to spouses. In 2008 it briefly relaxed that limitation. The very next year, in the face of its budget crisis, Arizona decided to return to its previous policy. That decision does not show animus, actual or implied. Nor does Section O’s supposed disparate impact on gays and lesbians. Indeed, Section O most likely would burden many more opposite-sex than same-sex couples because many more opposite-sex partners would stand to lose their benefits. See 727 F. Supp. 2d at 800. To conclude that the law will disproportionately affect same-sex couples would require one to assume that the vast majority of affected opposite-sex domestic partners would marry just to preserve their benefits. Though the panel seemed to credit that assumption, see 656 F.3d at 1014, the Arizona legislature was entitled (particularly under rationality review, see infra Part II-B) to presume that Section O would not spur a mass rush into matrimony.

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The plaintiffs here have simply not shown – as was their burden, see Wayte, 470 U.S. at 608 – that Section O was motivated by a discriminatory intent. They have not even shown a likely disparate effect that would harm them. The panel therefore erred in finding a likely equal protection violation.
B
The panel also erred in holding that Section O cannot withstand rational basis review. Even in cases applying a robust form of rationality review, the Supreme Court has made clear that a legislative classification must be upheld “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Those challenging a classification on rational basis grounds “have the burden to negat[e] every conceivable basis which might support it.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993) (internal quotation marks omitted).
Here, the cost-savings rationale offered by the State was sufficient to justify Section O. In 2008 and 2009, Arizona faced a severe budget crisis. The State therefore enacted a budget reconciliation bill that, among other cost-reduction measures, tightened state-employee dependent-partner benefits. Section O would have generated significant cost savings. In the 2008-2009 plan year, domestic partner healthcare claims cost the State more than $4.07 million; when the district court granted the preliminary injunction, those claims had already cost the State more

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than $5.49 million in the 2009-2010 plan year. 727 F. Supp. 2d at 812.
The panel nonetheless held that Section O is not rationally related to cost saving because, in the panel’s view, “the savings depend upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review.” 656 F.3d at 1014. But that is clearly wrong as a matter of fact: The cost savings depend on no such distinction. To the contrary, the savings will come mostly from discontinuing benefits to opposite-sex domestic partners because only “[a] small fraction” of those receiving domestic partner benefits are in a same-sex partnership. 727 F. Supp. 2d at 800.
Had the panel faithfully represented how Section O operates, it could not have condemned it as irrational. As already explained, the legislature was entitled to believe that most employees in opposite-sex domestic partner relationships would not sprint to marry, and thus it was entitled to believe that the lion’s share of the savings would come from ending coverage for opposite-sex couples. The panel was obliged to credit that determination and to uphold the law.
III
Beyond the damage done to established Fourteenth Amendment law, the panel decision threatens to dismantle constitutional, statutory, and administrative provisions in those states that wish to promote

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traditional marriage. 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.
Both states and the federal government have long sought to embody, in the law, our Nation’s deeprooted respect for traditional marriage. See, e.g., 28 U.S.C. § 1738C; Reynolds v. United States, 98 U.S. 145, 164-66, 168 (OT 1878); Adams v. Howerton, 673 F.2d 1036, 1039-40, 1042-43 (9th Cir. 1982); Baker v. Nelson, 191 N.W.2d 185, 185-87 (Minn. 1971). In the past decade alone, many states have amended their constitutions to affirm that respect and to fortify the protections of traditional marriage1 notwithstanding that some states have voted to extend the status of marriage to same-sex couples.2
Arizona voters made clear their desire to protect this fundamental institution when, in November
1 See, e.g., Fla. Const. art. I, § 27 (2008); Ga. Const. art. I, § 4, ¶ I (2004); Idaho Const. art. III, § 28 (2006); Kan. Const. art. XV, § 16 (2005); Ky. Const. § 233A (2004); Mich. Const. art. I, § 25 (2004); Mo. Const. art. I, § 33 (2004); Nev. Const. art. I, § 21 (2002); N.D. Const. art. XI, § 28 (2004); Okla. Const. art. II, § 35 (2004); Or. Const. art. XV, § 5a (2004); Tex. Const. art. I, § 32 (2005); Wis. Const. art. XIII, § 13 (2006).
2 See, e.g., 2012 Md. Laws Ch. 2 (H.B.438); Vt. Stat. Ann. tit. 15, § 8 (2009).

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2008, they amended their constitution to define marriage as between one man and one woman. See Ariz. Const. art. XXX, § 1. Section O accords with their choice to recognize legally only traditional marriage.
By concluding that Section O lacks any rational basis, the panel condemned the considered views of Arizona’s voters and all others who wish to promote traditional marriage through the law. Without any supporting evidence, the panel berated that choice as animated by “a bare desire to harm a politically unpopular group.” 656 F.3d at 1015 (internal quotation marks and ellipses omitted). That combustive conclusion will spur challenges to other state constitutional and statutory provisions that protect – indeed, even recognize – traditional marriage. No such laws are now safe in the Ninth Circuit: they are all, by the panel’s judicial declaration, begotten from bigotry.
The panel’s bottom-line conclusion – that rules benefitting only traditional marriage serve no conceivable rational purpose – also clashes with Supreme Court precedent, with our own case law, and with decisions of other federal and state appellate courts holding that laws recognizing or promoting traditional marriage do not violate the federal Constitution. See, e.g., Baker v. Nelson, 409 U.S. 810 (1972) (dismissing for want of a substantial federal question the appeal from Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)); Adams, 673 F.2d at 1042-43; Citizens for Equal Protection v. Bruning, 455 F.3d 859, 871 (8th Cir. 2006); Jones v. Hallahan, 501 S.W.2d 588,

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590 (Ky. 1973); Baker, 191 N.W.2d at 185-87. Rather than showing similar respect for voters’ choices, the panel in this case stripped our circuit’s citizens of the right to embody their long-accepted, long-heralded, and long-cherished beliefs about marriage in their laws.
This case is in some ways even more breathtaking than our recent decision in Perry v. Brown, Nos. 10-16696, 11-16577, ___ F.3d ___, 2012 WL 372713 (9th Cir. Feb. 7, 2012). Perry struck down an amendment to California’s constitution that restricted marriage to unions between a man and a woman. But the Perry majority said that it was “address[ing] no . . . question” regarding “the constitutionality of any ban on same-sex marriage,” and was instead examining “whether the people of a state may by plebiscite strip a group of a right or benefit, constitutional or otherwise, that they had previously enjoyed on terms of equality with all others in the state.” Id. at *17 n.14. By holding here that oppositesex-only marriage rules serve no rational purpose, the panel decided an issue that bears directly – perhaps dispositively – on the broad question expressly left open in Perry.
IV
The panel opinion conflicts with long-settled principles of equal protection law. 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

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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.
If our court were going to break so dramatically from long-standing practice and tradition – and divide ourselves from the weight of authority on a matter that is so important – we should have done so only after reconsidering this matter en banc.
I respectfully dissent.

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APPENDIX D
Arizona Revised Statutes Annotated  § 38-651. Expenditure of monies for health and accident insurance; definition
A. The department of administration may expend public monies appropriated for such purpose to procure health and accident coverage for full-time officers and employees of this state and its departments and agencies. The department of administration may adopt rules that provide that if an employee dies while the employee’s surviving spouse’s health insurance is in force, the surviving spouse is entitled to no more than thirty-six months of extended coverage at one hundred two per cent of the group rates by paying the premiums. Except as provided by § 38-1103, no public monies may be expended to pay all or any part of the premium of health insurance continued in force by the surviving spouse. The department of administration shall seek a variety of plans, including indemnity health insurance, hospital and medical service plans, dental plans and health maintenance organizations. On a recommendation of the department of administration and the review of the joint legislative budget committee, the department of administration may self-insure for the purposes of this subsection. If the department of administration self-insures, the department may contract directly with preferred provider organizations, physician and hospital networks, indemnity health insurers, hospital and medical service plans, dental plans and health maintenance organizations. If the department

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self-insures, the department shall provide that the self-insurance program include all health coverage benefits that are mandated pursuant to title 20. [FN1] The self-insurance program shall include provisions to provide for the protection of the officers and employees, including grievance procedures for claim or treatment denials, creditable coverage determinations, dissatisfaction with care and access to care issues. The department of administration by rule shall designate and adopt performance standards, including cost competitiveness, utilization review issues, network development and access, conversion and implementation, report timeliness, quality outcomes and customer satisfaction for qualifying plans. The qualifying plans for which the standards are adopted include indemnity health insurance, hospital and medical service plans, closed panel medical and dental plans and health maintenance organizations, and for eligibility of officers and employees to participate in such plans. Any indemnity health insurance or hospital and medical service plan designated as a qualifying plan by the department of administration must be open for enrollment to all permanent fulltime state employees, except that any plan established prior to June 6, 1977 may be continued as a separate plan. Any closed panel medical or dental plan or health maintenance organization designated as the qualifying plan by the department of administration must be open for enrollment to all permanent full-time state employees residing within the geographic area or area to be served by the plan or

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organization. Officers and employees may select coverage under the available options.
B. The department of administration may expend public monies appropriated for such purpose to procure health and accident coverage for the dependents of full-time officers and employees of this state and its departments and agencies. The department of administration shall seek a variety of plans, including indemnity health insurance, hospital and medical service plans, dental plans and health maintenance organizations. On a recommendation of the department of administration and the review of the joint legislative budget committee, the department of administration may self-insure for the purposes of this subsection. If the department of administration self-insures, the department may contract directly with preferred provider organizations, physician and hospital networks, indemnity health insurers, hospital and medical service plans, dental plans and health maintenance organizations. If the department self-insures, the department shall provide that the self-insurance program include all health coverage benefits that are mandated pursuant to title 20. The self-insurance program shall include provisions to provide for the protection of the officers and employees, including grievance procedures for claim or treatment denials, creditable coverage determinations, dissatisfaction with care and access to care issues. The department of administration by rule shall designate and adopt performance standards, including cost competitiveness, utilization review

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issues, network development and access, conversion and implementation, report timeliness, quality outcomes and customer satisfaction for qualifying plans. The qualifying plans for which the standards are adopted include indemnity health insurance, hospital and medical service plans, closed panel medical and dental plans and health maintenance organizations, and for eligibility of the dependents of officers and employees to participate in such plans. Any indemnity health insurance or hospital and medical service plan designated as a qualifying plan by the department of administration must be open for enrollment to all permanent full-time state employees, except that any plan established prior to June 6, 1977 may be continued as a separate plan. Any closed panel medical or dental plan or health maintenance organization designated as a qualifying plan by the department of administration must be open for enrollment to all permanent full-time state employees residing within the geographic area or area to be served by the plan or organization. Officers and employees may select coverage under the available options.
C. The department of administration may designate the Arizona health care cost containment system established by title 36, chapter 29 [FN2] as a qualifying plan for the provision of health and accident coverage to full-time state officers and employees and their dependents. The Arizona health care cost containment system shall not be the exclusive qualifying plan for health and accident coverage for state

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officers and employees either on a statewide or regional basis.
D. Except as provided in § 38-652, public monies expended pursuant to this section each month shall not exceed:
1. Five hundred dollars multiplied by the number of officers and employees who receive individual coverage.
2. One thousand two hundred dollars multiplied by the number of married couples if both members of the couple are either officers or employees and each receives individual coverage or family coverage.
3. One thousand two hundred dollars multiplied by the number of officers or employees who receive family coverage if the spouses of the officers or employees are not officers or employees.
E. Subsection D of this section:
1. Establishes a total maximum expenditure of public monies pursuant to this section.
2. Does not establish a minimum or maximum expenditure for each individual officer or employee.
F. In order to ensure that an officer or employee does not suffer a financial penalty or receive a financial benefit based on the officer’s or employee’s age, gender or health status, the department of administration shall consider implementing the following:

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1. Requests for proposals for health insurance that specify that the carrier’s proposed premiums for each plan be based on the expected age, gender and health status of the entire pool of employees and officers and their family members enrolled in all qualifying plans and not on the age, gender or health status of the individuals expected to enroll in the particular plan for which the premium is proposed.
2. Recommendations from a legislatively established study group on risk adjustments relating to a system for reallocating premium revenues among the contracting qualifying plans to the extent necessary to adjust the revenues received by any carrier to reflect differences between the average age, gender and health status of the enrollees in that carrier’s plan or plans and the average age, gender and health status of all enrollees in all qualifying plans.
G. Each officer or employee shall certify on the initial application for family coverage that the officer or employee is not receiving more than the contribution for which eligible pursuant to subsection D of this section. Each officer or employee shall also provide the certification on any change of coverage or marital status.
H. If a qualifying health maintenance organization is not available to an officer or employee within fifty miles of the officer’s or employee’s residence and the officer or employee is enrolled in a qualifying plan, the officer or employee shall be offered the opportunity to enroll with a health maintenance organization

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when the option becomes available. If a health maintenance organization is available within fifty miles and it is determined by the department of administration that there is an insufficient number of medical providers in the organization, the department may provide for a change in enrollment from plans designated by the director when additional medical providers join the organization.
I. Notwithstanding subsection H of this section, officers and employees who enroll in a qualifying plan and reside outside the area of a qualifying health maintenance organization shall be offered the option to enroll with a qualified health maintenance organization offered through their provider under the same premiums as if they lived within the area boundaries of the qualified health maintenance organization, if:
1. All medical services are rendered and received at an office designated by the qualifying health maintenance organization or at a facility referred by the health maintenance organization.
2. All nonemergency or nonurgent travel, ambulatory and other expenses from the residence area of the officer or employee to the designated office of the qualifying health maintenance organization or the facility referred by the health maintenance organization are the responsibility of and at the expense of the officer or employee.
3. All emergency or urgent travel, ambulatory and other expenses from the residence area of the officer or employee to the designated office of the qualifying

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health maintenance organization or the facility referred by the health maintenance organization are paid pursuant to any agreement between the health maintenance organization and the officer or employee living outside the area of the qualifying health maintenance organization.
J. The department of administration shall allow any school district in this state that meets the requirements of section 15-388, a charter school in this state that meets the requirements of section 15-187.01 or a city, town, county, community college district, special taxing district, authority or public entity organized pursuant to the laws of this state that meets the requirements of section 38-656 to participate in the health and accident coverage prescribed in this section, except that participation is only allowed in a health plan that is offered by the department and that is subject to title 20, chapter 1, article 1. [FN3] A school district, a charter school, a city, a town, a county, a community college district, a special taxing district, an authority or any public entity organized pursuant to the laws of this state rather than this state shall pay directly to the benefits provider the premium for its employees.
K. The department of administration shall determine the actual administrative and operational costs associated with school districts, charter schools, cities, towns, counties, community college districts, special taxing districts, authorities and public entities organized pursuant to the laws of this state participating in the state health and accident insurance

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coverage. These costs shall be allocated to each school district, charter school, city, town, county, community college district, special taxing district, authority and public entity organized pursuant to the laws of this state based on the total number of employees participating in the coverage. This subsection only applies to a health plan that is offered by the department and that is subject to title 20, chapter 1, article 1.
L. Insurance providers contracting with this state shall separately maintain records that delineate claims and other expenses attributable to participation of a school district, charter school, city, town, county, community college district, special taxing district, authority and public entity organized pursuant to the laws of this state in the state health and accident insurance coverage and, by November 1 of each year, shall report to the department of administration the extent to which state costs are impacted by participation of school districts, charter schools, cities, towns, counties, community college districts, special taxing districts, authorities and public entities organized pursuant to the laws of this state in the state health and accident insurance coverage. By December 1 of each year, the director of the department of administration shall submit a report to the president of the senate and the speaker of the house of representatives detailing the information provided to the department by the insurance providers and including any recommendations for possible legislative action.

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M. Notwithstanding subsection J of this section, any school district in this state that meets the requirements of section 15-388, a charter school in this state that meets the requirements of section 15187.01 or a city, town, county, community college district, special taxing district, authority or public entity organized pursuant to the laws of this state that meets the requirements of section 38-656 may apply to the department of administration to participate in the self-insurance program that is provided by this section pursuant to rules adopted by the department. A participating entity shall reimburse the department for all premiums and administrative or other insurance costs. The department shall actuarially prescribe the annual premium for each participating entity to reflect the actual cost of each participating entity.
N. Any person that submits a bid to provide health and accident coverage pursuant to this section shall disclose any court or administrative judgments or orders issued against that person within the last ten years before the submittal.
O. For the purposes of this section, “dependent” means a spouse under the laws of this state, a child who is under twenty-six years of age or a child who was disabled before reaching nineteen years of age, who continues to be disabled under 42 United States Code section 1382c and for whom the employee had custody before reaching nineteen years of age.

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[FN1] Section 20-101 et seq. [FN2] Section 36-2901 et seq. [FN3] Section 20-101 et seq.

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APPENDIX E
Title 2, Ch. 5 Arizona Administrative Code (2008) Department of Administration – Personnel Administration
ARTICLE 1. GENERAL
R2-5-101. Definitions
The following words and phrases have the defined meanings unless otherwise clearly indicated by the context.
1. “Agency” means a department, board, office, authority, or other governmental budget unit of the state.
2. “Agency head” means the chief executive officer of an agency.
3. “Appeal” means a request for a review by the Personnel Board of a disciplinary action under A.R.S. § 41-782.
4. “Applicant” means a person who seeks appointment to a position in state service.
5. “Appointment” means the offer to and the acceptance by a person of a position in state service.
6. “Base salary” means an employee’s salary excluding overtime pay, shift differential, bonus pay, special performance adjustment previously granted, or pay for other allowance or special incentive pay program.

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7. “Business day” means the hours between 8:00 a.m. and 5:00 p.m. Monday through Friday, excluding observed state holidays.
8. “Candidate” means a person whose knowledge, skills, and abilities meet the requirements of a position and who may be considered for employment.
9. “Cause” means any of the reasons for disciplinary action provided by A.R.S. § 41-770 or these rules.
10. “Child” means:
a. For purposes of R2-5-416(C), pertaining to the health benefit plan, R2-5-418(B), pertaining to the retiree health benefit plan, and R2-5-419(C), pertaining to the health benefit plan for former elected officials, an unmarried person who falls within one or more of the following categories:
i. A natural child, adopted child, or stepchild of the employee-member, retiree, former elected official, or domestic partner and who is younger than age 19 or younger than age 25 if a full-time student;
ii. A child who is younger than age 19 for whom the employee-member, retiree, or former elected official has court-ordered guardianship;
iii. A foster child who is younger than age 19;

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iv. A child who is younger than age 19 and placed in the employeemember’s, retiree’s, or former elected official’s home by court order pending adoption; or
v. A natural child, adopted child, or stepchild of the employee-member, retiree, former elected official, or domestic partner and who was disabled prior to age 19 and continues to be disabled under 42 U.S.C. 1382c and for whom the employee-member, retiree, former elected official or domestic partner had custody prior to age 19.
b. For purposes of R2-5-417(C) and (D), pertaining to the life and disability income insurance plan, and R2-5-421(B), pertaining to the life insurance plan for former elected officials, an unmarried person who falls within one or more of the following categories:
i. A natural child, adopted child, or stepchild of the employee-member, former elected official, or domestic partner and who is younger than age 19 or younger than age 25 if a full-time student;
ii. A child who is younger than age 19 for whom the employee or former elected official has court-ordered guardianship;

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iii. A foster child who is younger than age 19;
iv. A child who is younger than age 19 and placed in the employee’s or former elected official’s home by court order pending adoption; or
v. A natural child, adopted child, or stepchild of the employee-member, former elected official, or domestic partner and who was disabled prior to age 19 and continues to be disabled under 42 U.S.C. 1382c and for whom the employee, former elected official, or domestic partner had custody prior to age 19; or
c. For purposes of R2-5-207(D), pertaining to the employment of relatives, R2-5404, pertaining to sick leave, R2.5-410, pertaining to bereavement leave, the term includes a natural child, adopted child, foster child, or stepchild; and
d. For purposes of R2-5-411, pertaining to parental leave, the term includes a natural child, adopted child, foster child, or stepchild.
11. “Class” means a group of positions with the same title and pay grade because each position in the group has similar duties, scope of discretion and responsibility, required knowledge, skills and abilities, or other jobrelated characteristics.

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12. “Class series” means:
a. For purposes of R2-5-902(B), pertaining to the administration of reduction in force, and R2-5-903(A), pertaining to a temporary reduction in force, a group of related classes that is listed in the Arizona Department of Administration, Human Resources Division, Occupational Listing of Classes as a subsection of the occupational group; and
b. For purposes of R2-5-902(D), pertaining to the calculation of retention points for length of service, a group of related classes that is listed in the Arizona Department of Administration, Human Resources Division, Occupational Listing of Classes as a subsection of the occupational group, including a position that has been reclassified or reassigned to the class series within five years before the effective date of the reduction in force.
13. ‘‘Class specification” means a description of the type and level of duties and responsibilities of the positions assigned to a class.
14. “Clerical pool appointment” means the noncompetitive, temporary placement of a qualified individual in a clerical position.
15. “Competition” means the process leading to the identification of candidates for employment or promotional consideration that includes an evaluation of knowledge, skills, and abilities and the development of a hiring list in accordance with these rules.

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16. “Covered employee” means an employee in state service who is subject to the provisions of these rules.
17. “Covered position” means a position in state service, as defined in ARS § 41-762.
18. “Days” means calendar days.
19. “Demotion” means a change in the assignment of an employee from a position in one class to a position in another class with a lower pay grade that results from disciplinary action for cause.
20. “Department” means the Arizona Department of Administration.
21. “Director” means the Director of the Arizona Department of Administration, and the Director’s designee with respect to personnel administration.
22. “Domestic partner” means a person of the same or opposite gender who:
a Shares the employee’s or retiree’s permanent residence;
b. Has resided with the employee or retiree continuously for at least 12 consecutive months before filing an application for benefits and is expected to continue to reside with the employee or retiree indefinitely as evidenced by an affidavit filed at time of enrollment;
c. Has not signed a declaration or affidavit of domestic partnership with any other

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person and has not had another domestic partner within the 12 months before filing an application for benefits;
d. Does not have any other domestic partner or spouse of the same or opposite sex;
e. Is not currently legally married to anyone or legally separated from anyone else;
f. Is not a blood relative any closer than would prohibit marriage in Arizona;
g. Was mentally competent to consent to contract when the domestic partnership began;
h. Is not acting under fraud or duress in accepting benefits;
i. Is at least 18 years of age; and
j. Is financially interdependent with the employee or retiree in at least three of the following ways:
i. Having a joint mortgage, joint property tax identification, or joint tenancy on a residential lease;
ii. Holding one or more credit or bank accounts jointly, such as a checking account, in both names;
iii. Assuming joint liabilities;

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iv. Having joint ownership of significant property, such as real estate, a vehicle, or a boat;
v. Naming the partner as beneficiary on the employee’s life insurance, under the employee’s will, or employee’s retirement annuities and being named by the partner as beneficiary of the partner’s life insurance, under the partner’s will, or the partner’s retirement annuities; and
vi. Each agreeing in writing to assume financial responsibility for the welfare of the other, such as durable power of attorney; or
vii. Other proof of financial interdependence as approved by the Director.
23. “Eligible dependent” means the employeemember’s, retiree’s, or former elected official’s spouse under Arizona law, domestic partner, child, or older child.
24. “Emergency appointment” means an appointment made without regard to the recruitment, evaluation, referral, or selection requirements of these rules in response to a governmental emergency.
25. “Entrance salary” means the minimum rate of the pay grade established for a specific class.

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26. “Essential job function” means the fundamental job duties of a position that an applicant or employee must be able to perform, with or without a reasonable accommodation.
27. “Evaluation” means the procedure used to determine the relative knowledge, skills, and abilities of an applicant.
28. “Flexible or cafeteria employee benefit plan” means a plan providing benefits to eligible employees that meets the requirements of Section 125 of the Internal Revenue Code.
29. “FLSA” means the federal Fair Labor Standards Act.
30. “FLSA exempt” means a position that is not entitled to overtime compensation under the FLSA.
31. “FLSA non-exempt” means a position that is entitled to overtime compensation under the FLSA.
32. “FMLA” means the federal Family and Medical Leave Act.
33. “Good standing” means the status of a former employee at the time of separation from state service for reasons other than disciplinary action or anticipated disciplinary action.
34. “Grievance” means a formal complaint filed by an employee, using the procedure established in Article 7 of these rules, that alleges discrimination, noncompliance with these

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rules, or concerns other work-related matters that directly and personally affect the employee.
35. “Human Resources Employment Database” means the database that contains the resume of an applicant interested in employment within state service.
36. “Incumbent” means the officer or employee who currently holds an office or position.
37. “Institution” means a facility that provides supervision or care for residents on a 24-hour per day, 7-day per week, basis.
38. “Knowledge, skills, and abilities” means the qualifications and personal attributes required to perform a job that are generally demonstrated through qualifying service, education, or training.
a. Knowledge is a body of information applied directly to the performance of a function;
b. Skill is an observable competence to perform a learned psychomotor act; and
c. Ability is competence to perform an observable behavior or a behavior that results in an observable product.
39. “Limited appointment” means an appointment to a position that is funded for at least six months but not more than 36 months.
40. “Limited position” means a position in state service that is established for at least six

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months but not more than 36 months based on the duration of funding.
41. “Manifest error” means an act or failure to act that is, or clearly has caused, a mistake.
42. “Mobility assignment” means the assignment of a permanent status employee to an uncovered position or to a covered or uncovered position in another state agency.
43. “Older child” means an individual who:
a. Is younger than 25 years old,
b. Is unmarried,
c. Was covered by a health insurance plan made available by the Department during the year that the individual was 18 years old, and
d. Resides in Arizona, if the individual is:
i. A natural child, adopted child, or stepchild of an employee, officer, retiree, or former elected official;
ii. A natural child, adopted child, or stepchild of a domestic partner; or
iii. A child for whom an employee, officer, retiree, or former elected official received a court-ordered guardianship when the child was 18 years old or younger.
44. “Original probation” means the specified period following initial appointment to state

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service in a regular or limited position for evaluation of the employee’s work.
45. “Original probationary appointment” means the initial appointment to a regular or limited position in state service.
46. “Parent” means, for purposes of R2-5-403, pertaining to annual leave, R2-5-404, pertaining to sick leave, and R2-5-410, pertaining to bereavement leave, birth parent, adoptive parent, stepparent, foster parent, grandparent, parent-in-law, or anyone who can be considered “in loco parentis.”
47. “Participant” means an employee who is enrolled in the state’s insurance program.
48. “Part-time” means, for purposes of R2-5-402, pertaining to holidays, R2-5-403, pertaining to annual leave, R2-5404, pertaining to sick leave, R2-5-902, pertaining to reduction in force, and R2-5-903, pertaining to temporary reduction in force, employment scheduled for less than 40 hours per week.
49. “Pay grade” means a salary range in a state service salary plan.
50. “Pay status” means an employee is eligible to receive pay for work or for a compensated absence.
51. “Permanent status” means the standing an employee achieves after the completion of an original probation or a promotional probation.

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52. “Plan” means a flexible or cafeteria employee benefit plan.
53. “Plan administrator” means the Director of the Arizona Department of Administration.
54. “Promotion” means a permanent change in assignment of an employee from a position in one class to a position in another class that has a higher pay grade.
55. “Promotional probation” means the specified period of employment following promotion of a permanent status employee for evaluation of the employee’s work.
56. “Qualified” means an individual possesses the knowledge, skills, and abilities required of a specific position, as described in the class specification, and any unique characteristics required for the position.
57. “Qualified life event” means a change in an employee’s family, employment status, or residence including but not limited to:
a. Changes in the employee’s marital status such as marriage, divorce, legal separation, annulment, death of spouse, domestic partnership, termination of domestic partnership, or death of domestic partner;
b. Changes in dependent status such as birth, adoption, placement for adoption, death, or dependent eligibility due to age, marriage, or student status;

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c. Changes in employment status or work schedule that affect benefits eligibility for the employee, spouse, domestic partner, or dependent; or
d. Changes in residence that affect available plan options for the employee, spouse, domestic partner, or dependent.
58. “Reclassification” means changing the classification of a position if a material and permanent change in duties or responsibilities occurs.
59. “Reduction” means the non-appealable movement of an employee from one position to another in a lower pay grade as a result of a reduction in force.
60. “Reemployment” means the appointment of a former permanent status employee who was separated by a reduction in force.
61. “Regular position” means a full-time equivalent (FTE) position in state service.
62. “Reinstatement” means the appointment of a former permanent status employee who resigned, was separated in good standing, or was separated without prejudice within two years from the effective date of separation.
63. “Repromotion” means the promotion of an employee who was reduced in pay grade due to a reduction in force to the pay grade held before the reduction in force or to an intervening pay grade.

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64. “Reversion” means the return of an employee on promotional probation to a position in the class in which the employee held permanent status immediately before the promotion.
65. “Rules” means the rules contained in A.A.C., Title 2, Chapter 5.
66. “Separation without prejudice” means a nondisciplinary removal from state service, without appeal rights, of an employee in good standing.
67. “Special detail” means the temporary assignment of a permanent status employee to a covered position in the same agency.
68. “State service” is defined in A.R.S. § 41-762.
69. “Surviving spouse” means the husband or wife, as provided by law, of a current or former elected official, or active or retired officer or employee who survives upon the death of the elected official, officer, or employee.
70. “Temporary appointment” means an appointment made for a maximum of 1,500 hours in any one position per agency in each calendar year.
71. “Transfer” means the movement of an employee from one position in state service to another position in state service in the same pay grade.
72. “Uncovered position” means a position that is exempt under A.R.S. § 41.771 and not subject to the provisions of these rules.

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73. “Underfill” means the appointment of a person to a class with a pay grade that is lower than the pay grade for the allocated class for that position.
74. “Voluntary pay grade decrease” means a change in assignment, at the request of an employee, to a position in a class with a lower pay grade.

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APPENDIX F
Title 2, Ch. 5 Arizona Administrative Code (2008) Department of Administration – Personnel Administration
R2-5-416. Health Benefit Plan
A. Eligibility.
1. A state employee, except an employee listed in subsection (A)(2), and the employee’s eligible dependents may participate in the health benefit plan, if the employee complies with the contractual requirements of the selected health benefit plan. An eligible employee may enroll in a health benefit plan at any time within the first 31 days of employment or during an open enrollment period specified by the Director. To add an eligible dependent due to a qualified life event, an eligible employee shall submit an application for enrollment within 31 days of the qualified life event.
2. The following categories of employees are not eligible to participate in the health benefit plan:
a. An employee who works fewer than 20 hours per week;
b. An employee in a temporary, emergency, or clerical pool position;
c. A patient or inmate employed in a state institution;

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d. A non-state employee, officer, or enlisted personnel of the National Guard of Arizona;
e. An employee in a position established for rehabilitation purposes;
f. An employee of any state college or university:
i. Who works fewer than 20 hours per week;
ii. Who is engaged to work for less than six months; or
iii. For whom contributions are not made to a state retirement plan. This disqualification does not apply to a non-immigrant alien employee, an employee participating in a medical residency training program, a Cooperative Extension employee on federal appointment, or a retiree who returns to work under A.R.S. § 38-766.01.
B. Eligibility exception. An employee who is on leave without pay may continue to participate in the health benefit plan under the conditions in:
1. R2-5-405 for employees on leave without pay due to industrial illness or injury;
2. R2-5-413 for employees on medical leave without pay; or
3. R2-5-414 for employees on leave without pay for any other reason.

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C. Dependent eligibility. Dependents eligible to participate in the health benefit plan include:
1. An employee-member’s spouse as provided by law or domestic partner; and
2. Each child.
D. Enrollment of dependents. An eligible employee may enroll eligible dependents at the time of the employee’s original enrollment, within 31 days of a qualified life event, or at open enrollment.

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APPENDIX G
Title 2, Ch. 5 Arizona Administrative Code (2005) Department of Administration – Personnel Administration
R2-5-101. Definitions
The following words and phrases have the defined meanings unless otherwise clearly indicated by the context.
1. “Agency” means a department, board, office, authority, commission, or other governmental budget unit of the state.
2. “Agency head” means the chief executive officer of an agency.
3. “Appeal” means a request for a review by the Personnel Board of a disciplinary action under A.R.S. § 41-782.
4. “Applicant” means a person who seeks appointment to a position in state service.
5. “Appointment” means the offer to and the acceptance by a person of a position in state service.
6. “Base salary” means an employee’s salary excluding overtime pay, shift differential, bonus pay, special performance adjustment previously granted, or pay for other allowance or special incentive pay program.
7. “Business day” means the hours between 8:00 a.m. and 5:00 p.m. Monday through Friday, excluding observed state holidays.

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8. “Candidate” means a person whose knowledge, skills, and abilities meet the requirements of a position and who may be considered for employment.
9. “Cause” means any of the reasons for disciplinary action provided by A.R.S. § 41-770 or these rules.
10. “Child” means:
a. For purposes of R2-5-416(C), pertaining to the health benefit plan, R2-5-418(B), pertaining to the retiree health benefit plan, and R2-5-419(C), pertaining to the health benefit plan for former elected officials, an unmarried person who falls within one or more of the following categories:
i. A natural child, adopted child, or stepchild who is younger than age 19 or younger than age 25 if a full-time student;
ii. A child who is younger than age 19 for whom the employee-member, retiree, or former elected official has court-ordered guardianship;
iii. A foster child who is younger than age 19;
iv. A child who is younger than age 19 and placed in the employee-member’s, retiree’s, or former elected official’s home by court order pending adoption; or

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v. A natural child, adopted child, or stepchild who was disabled prior to age 19 and continues to be disabled under 42 USC 1382c and for whom the employee-member, retiree, or elected official had custody prior to age 19.
b. For purposes of R2-5-417(C) and (D), pertaining to the life and disability income insurance plan, and R2-5-421(B), pertaining to the life insurance plan for former elected officials, an unmarried person who falls within one or more of the following categories:
i. A natural child, adopted child, or stepchild who is younger than age 19 or younger than age 25 if a fulltime student;
ii. A child who is younger than age 19 for whom the employee or former elected official has court-ordered guardianship;
iii. A foster child who is younger than age 19;
iv. A child who is younger than age 19 and placed in the employee’s or former elected official’s home by court order pending adoption; or
v. A natural child, adopted child, or stepchild who was disabled prior to age 19 and continues to be disabled under 42 USC 1382c and for whom

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the employee or former elected official had custody prior to age 19; or
c. For purposes of R2-5-207(D), pertaining to the employment of relatives, R2-5404, pertaining to sick leave, R2-5-410, pertaining to bereavement leave, the term includes a natural child, adopted child, foster child, or stepchild; and
d. For purposes of R2-5-411, pertaining to parental leave, the term includes a natural child, adopted child, foster child, or stepchild.
11. “Class” means a group of positions with the same title and pay grade because each position in the group has similar duties, scope of discretion and responsibility, required knowledge, skills and abilities, or other job-related characteristics.
12 “Class series” means:
a. For purposes of R2-5-902(B), pertaining to the administration of reduction in force, and R2-5-903(A), pertaining to a temporary reduction in force, a group of related classes that is listed in the Arizona Department of Administration, Human Resources Division, Occupational Listing of Classes as a subsection of the occupational group; and
b. For purposes of R2-5-902(D), pertaining to the calculation of retention points for length of service, a group of related classes that is listed in the Arizona Department

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of Administration, Human Resources Division, Occupational Listing of Classes as a subsection of the occupational group, including a position that has been reclassified or reassigned to the class series within five years before the effective date of the reduction in force.
13. “Class specification” means a description of the type and level of duties and responsibilities of the positions assigned to a class.
14. “Clerical pool appointment” means the noncompetitive, temporary placement of a qualified individual in a clerical position.
15. “Competition” means the process leading to the identification of candidates for employment or promotional consideration that includes an evaluation of knowledge, skills, and abilities and the development of a hiring list in accordance with these rules.
16. “Covered employee” means an employee in state service who is subject to the provisions of these rules.
17. “Covered position” means a position in state service, as defined in A.R.S. § 41-762.
18. “Days” means calendar days.
19. “Demotion” means a change in the assignment of an employee from a position in one class to a position in another class with a lower pay grade that results from disciplinary action for cause.

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20. “Department” means the Arizona Department of Administration.
21. “Director” means the Director of the Arizona Department of Administration, and the Director’s designee with respect to personnel administration.
22. “Eligible dependent” means the employeemember’s, retiree’s, or former elected official’s spouse under Arizona law or an unmarried child who falls within one or more of the following categories:
a. A natural child, adopted child, or stepchild who is younger than age 19 or younger than age 25 if a full-time student;
b. A child who is younger than age 19 for whom the employee-member, retiree, or former elected official has court-ordered guardianship;
c. A foster child who is younger than age 19;
d. A child who is younger than age 19 and placed in the employee-member’s, retiree’s, or former elected official’s home by court order pending adoption; or
e. A natural child, adopted child, or stepchild who was disabled prior to age 19 and continues to be disabled under 42 USC 1382c and for whom the employeemember, retiree, or former elected official had custody prior to age 19.

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23. “Emergency appointment” means an appointment made without regard to the recruitment, evaluation, referral, or selection requirements of these rules in response to a governmental emergency.
24. “Entrance salary” means the minimum rate of the pay grade established for a specific class.
25. “Essential job function” means the fundamental job duties of a position that an applicant or employee must be able to perform, with or without a reasonable accommodation.
26. “Evaluation” means the procedure used to determine the relative knowledge, skills, and abilities of an applicant.
27. “Flexible or cafeteria employee benefit plan” means a plan providing benefits to eligible employees that meets the requirements of Section 125 of the Internal Revenue Code.
28. “FLSA” means the federal Fair Labor Standards Act.
29. “FLSA exempt” means a position that is not entitled to overtime compensation under the FLSA.
30. “FLSA non-exempt” means a position that is entitled to overtime compensation under the FLSA.
31. “FMLA” means the federal Family and Medical Leave Act.

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32. “Good standing” means the status of a former employee at the time of separation from state service for reasons other than disciplinary action or anticipated disciplinary action.
33. “Grievance” means a formal complaint filed by an employee, using the procedure established in Article 7 of these rules, that alleges discrimination, noncompliance with these rules, or concerns other work-related matters that directly and personally affect the employee.
34. “Human Resources Employment Database” means the database that contains the resume of an applicant interested in employment within state service.
35. “Incumbent” means the officer or employee who currently holds an office or position.
36. “Institution” means a facility that provides supervision or care for residents on a 24-hour per day, 7-day per week, basis.
37. “Knowledge, skills, and abilities” means the qualifications and personal attributes required to perform a job that are generally demonstrated through qualifying service, education, or training.
a. Knowledge is a body of information applied directly to the performance of a function;
b. Skill is an observable competence to perform a learned psychomotor act; and

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c. Ability is competence to perform an observable behavior or a behavior that results in an observable product.
38. “Limited appointment” means an appointment to a position that is funded for at least six months but not more than 36 months.
39. “Limited position” means a position in state service that is established for at least six months but not more than 36 months based on the duration of funding.
40. “Manifest error” means an act or failure to act that is, or clearly has caused, a mistake.
41. “Mobility assignment” means the assignment of a permanent status employee to an uncovered position or to a covered or uncovered position in another state agency.
42. “Original probation” means the specified period following initial appointment to state service in a regular or limited position for evaluation of the employee’s work.
43. “Original probationary appointment” means the initial appointment to a regular or limited position in state service.
44. “Parent” means, for purposes of R2-5-403, pertaining to annual leave, R2-5-404, pertaining to sick leave, and R2-5-410, pertaining to bereavement leave, birth parent, adoptive parent, stepparent, foster parent, grandparent, parent-in-law, or anyone who can be considered “in loco parentis.”

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45. “Participant” means an employee who is enrolled in the state’s insurance program.
46. “Part-time” means, for purposes of R2-5-402, pertaining to holidays, R2-5-403, pertaining to annual leave, R2-5-404, pertaining to sick leave, R2-5-902, pertaining to reduction in force, and R2-5-903, pertaining to temporary reduction in force, employment scheduled for less than 40 hours per week.
47. “Pay grade” means a salary range in a state service salary plan.
48. “Pay status” means an employee is eligible to receive pay for work or for a compensated absence.
49. “Permanent status” means the standing an employee achieves after the completion of an original probation or a promotional probation.
50. “Plan” means a flexible or cafeteria employee benefit plan.
51. “Plan administrator” means the Director of the Arizona Department of Administration.
52. “Promotion” means a permanent change in assignment of an employee from a position in one class to a position in another class that has a higher pay grade.
53. “Promotional probation” means the specified period of employment following promotion of a permanent status employee for evaluation of the employee’s work.

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54. “Qualified” means an individual possesses the knowledge, skills, and abilities required of a specific position, as described in the class specification, and any unique characteristics required for the position.
55. “Qualified life event” means a change in an employee’s family, employment status, or residence including but not limited to:
a. Changes in the employee’s marital status such as marriage, divorce, legal separation, annulment, or death of spouse;
b. Changes in dependent status such as birth, adoption, placement for adoption, death, or dependent eligibility due to age, marriage, or student status;
c. Changes in employment status or work schedule that affect benefits eligibility for the employee, spouse, or dependent; or
d. Changes in residence that affect available plan options for the employee, spouse, or dependent.
56. “Reclassification” means changing the classification of a position if a material and permanent change in duties or responsibilities occurs.
57. “Reduction” means the non-appealable movement of an employee from one position to another in a lower pay grade as a result of a reduction in force.

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58. “Reemployment” means the appointment of a former permanent status employee who was separated by a reduction in force.
59. “Regular position” means a full-time equivalent (FTE) position in state service.
60. “Reinstatement” means the appointment of a former permanent status employee who resigned, was separated in good standing, or was separated without prejudice within two years from the effective date of separation.
61. “Repromotion” means the promotion of an employee who was reduced in pay grade due to a reduction in force to the pay grade held before the reduction in force or to an intervening pay grade.
62. “Reversion” means the return of an employee on promotional probation to a position in the class in which the employee held permanent status immediately before the promotion.
63. “Rules” means the rules contained in A.A.C., Title 2, Chapter 5.
64. “Separation without prejudice” means a nondisciplinary removal from state service, without appeal rights, of an employee in good standing.
65. “Special detail” means the temporary assignment of a permanent status employee to a covered position in the same agency.
66. “State service” is defined in A.R.S. § 41-762.

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67. “Surviving spouse” means the husband or wife, as provided by law, of a current or former elected official, or active or retired officer or employee who survives upon the death of the elected official, officer, or employee.
68. “Temporary appointment” means an appointment made for a maximum of 1,500 hours in any one position per agency in each calendar year.
69. “Transfer” means the movement of an employee from one position in state service to another position in state service in the same pay grade.
70. “Uncovered position” means a position that is exempt under A.R.S. 41-771 and not subject to the provisions of these rules.
71. “Underfill” means the appointment of a person to a class with a pay grade that is lower than the pay grade for the allocated class for that position.
72. “Voluntary pay grade decrease” means a change in assignment, at the request of an employee, to a position in a class with a lower pay grade.

 
 Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 1 of 21
CLASSACT,CLOSED,PROTO,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:09−cv−02402−JWS

Diaz et al v. Brewer et al Assigned to: Judge John W Sedwick Case in other court: Ninth Circuit, 10−16797 Cause: 42:1983 Civil Rights Act
Plaintiff
Tracy Collins TERMINATED: 09/09/2013

Date Filed: 11/17/2009 Date Terminated: 01/12/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Desmund Wu Lambda Legal Defense & Education Fund Inc 3325 Wilshire Blvd Ste 1300 Los Angeles, CA 90010 213−382−7600 Fax: 213−351−6050 Email: dwu@lambdalegal.org TERMINATED: 09/08/2010
James Evans Barton , II Office of the Attorney General 1275 W Washington St. Phoenix, AZ 85007 602−542−8015 Fax: 602−542−8308 Email: james.barton@azag.gov TERMINATED: 04/05/2010
Jennifer C Pizer Lambda Legal Defense & Education Fund Incorporated 4221 Wilshire Blvd., Ste. 280 Los Angeles, CA 90010 213−382−7600 Fax: 213−351−6050 Email: jpizer@lambdalegal.org TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED
Jerica Lyn Peters Perkins Coie LLP − Phoenix, AZ P.O. Box 400 Phoenix, AZ 85001−0400 602−351−8091 Fax: 602−648−7182 Email: jpeters@perkinscoie.com ATTORNEY TO BE NOTICED
Kirstin T Eidenbach Eidenbach Law PLLC P.O. Box 91398 Tucson, AZ 85752 520−477−1475 Email: kirstin@eidenbachlaw.com TERMINATED: 04/02/2015
Rhonda Lorraine Barnes Perkins Coie LLP PO Box 400

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 2 of 21

Phoenix, AZ 85001−0400 602−351−8305 Fax: 602−648−7163 Email: rbarnes@perkinscoie.com TERMINATED: 10/20/2011 ATTORNEY TO BE NOTICED

Tara L Borelli Lambda Legal Defense & Education Fund Inc 730 Peachtree St., Ste. 1070 Atlanta, GA 30308−1210 404−897−1880 Fax: 404−897−1884 Email: tborelli@lambdalegal.org ATTORNEY TO BE NOTICED

Daniel Clayton Barr Perkins Coie LLP PO Box 400 Phoenix, AZ 85001−0400 602−351−8085 Fax: 602−648−7085 Email: DBarr@perkinscoie.com ATTORNEY TO BE NOTICED

Plaintiff Joseph R Diaz

represented by Desmund Wu (See above for address) TERMINATED: 09/08/2010

James Evans Barton , II (See above for address) TERMINATED: 04/05/2010

Jennifer C Pizer (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED

Jerica Lyn Peters (See above for address) ATTORNEY TO BE NOTICED

Kirstin T Eidenbach (See above for address) TERMINATED: 04/02/2015

Peter C Renn Lambda Legal Defense & Education Fund Incorporated 4221 Wilshire Blvd., Ste. 280 Los Angeles, CA 90010 213−382−7600 Fax: 213−351−6050 Email: prenn@lambdalegal.org ATTORNEY TO BE NOTICED

Rhonda Lorraine Barnes (See above for address) TERMINATED: 10/20/2011 ATTORNEY TO BE NOTICED

Tara L Borelli

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 3 of 21

(See above for address) ATTORNEY TO BE NOTICED

Daniel Clayton Barr (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Judith McDaniel TERMINATED: 10/13/2010

represented by Daniel Clayton Barr (See above for address) ATTORNEY TO BE NOTICED

Desmund Wu (See above for address) TERMINATED: 09/08/2010

James Evans Barton , II (See above for address) TERMINATED: 04/05/2010

Jennifer C Pizer (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED

Rhonda Lorraine Barnes (See above for address) TERMINATED: 10/20/2011 ATTORNEY TO BE NOTICED

Tara L Borelli (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Keith B Humphrey TERMINATED: 09/09/2013

represented by Daniel Clayton Barr (See above for address) ATTORNEY TO BE NOTICED

Desmund Wu (See above for address) TERMINATED: 09/08/2010

James Evans Barton , II (See above for address) TERMINATED: 04/05/2010

Jennifer C Pizer (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED

Jerica Lyn Peters (See above for address) ATTORNEY TO BE NOTICED

Kirstin T Eidenbach (See above for address) TERMINATED: 04/02/2015

Rhonda Lorraine Barnes (See above for address) TERMINATED: 10/20/2011 ATTORNEY TO BE NOTICED

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 4 of 21

Plaintiff Beverly Seckinger
Plaintiff Stephen Russell

Tara L Borelli (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Clayton Barr (See above for address) ATTORNEY TO BE NOTICED
Desmund Wu (See above for address) TERMINATED: 09/08/2010
James Evans Barton , II (See above for address) TERMINATED: 04/05/2010
Jennifer C Pizer (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED
Jerica Lyn Peters (See above for address) ATTORNEY TO BE NOTICED
Kirstin T Eidenbach (See above for address) TERMINATED: 04/02/2015
Peter C Renn (See above for address) ATTORNEY TO BE NOTICED
Rhonda Lorraine Barnes (See above for address) TERMINATED: 10/20/2011 ATTORNEY TO BE NOTICED
Tara L Borelli (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Clayton Barr (See above for address) ATTORNEY TO BE NOTICED
Desmund Wu (See above for address) TERMINATED: 09/08/2010
James Evans Barton , II (See above for address) TERMINATED: 04/05/2010
Jennifer C Pizer (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED
Jerica Lyn Peters (See above for address)

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 5 of 21

ATTORNEY TO BE NOTICED

Kirstin T Eidenbach (See above for address) TERMINATED: 04/02/2015

Peter C Renn (See above for address) ATTORNEY TO BE NOTICED

Rhonda Lorraine Barnes (See above for address) TERMINATED: 10/20/2011 ATTORNEY TO BE NOTICED

Tara L Borelli (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Deanna Pfleger

represented by Daniel Clayton Barr (See above for address) ATTORNEY TO BE NOTICED

Desmund Wu (See above for address) TERMINATED: 09/08/2010

James Evans Barton , II (See above for address) TERMINATED: 04/05/2010

Jennifer C Pizer (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED

Jerica Lyn Peters (See above for address) ATTORNEY TO BE NOTICED

Kirstin T Eidenbach (See above for address) TERMINATED: 04/02/2015

Peter C Renn (See above for address) ATTORNEY TO BE NOTICED

Rhonda Lorraine Barnes (See above for address) TERMINATED: 10/20/2011 ATTORNEY TO BE NOTICED

Tara L Borelli (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Carrie Sperling TERMINATED: 09/09/2013

represented by Daniel Clayton Barr (See above for address) ATTORNEY TO BE NOTICED

James Evans Barton , II

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 6 of 21

(See above for address) TERMINATED: 04/05/2010

Jennifer C Pizer (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED

Jerica Lyn Peters (See above for address) ATTORNEY TO BE NOTICED

Kirstin T Eidenbach (See above for address) TERMINATED: 04/02/2015

Rhonda Lorraine Barnes (See above for address) TERMINATED: 10/20/2011 ATTORNEY TO BE NOTICED

Tara L Borelli (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Leslie Kemp TERMINATED: 09/09/2013

represented by Daniel Clayton Barr (See above for address) ATTORNEY TO BE NOTICED

Desmund Wu (See above for address) TERMINATED: 09/08/2010

James Evans Barton , II (See above for address) TERMINATED: 04/05/2010

Jennifer C Pizer (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED

Jerica Lyn Peters (See above for address) ATTORNEY TO BE NOTICED

Kirstin T Eidenbach (See above for address) TERMINATED: 04/02/2015

Rhonda Lorraine Barnes (See above for address) TERMINATED: 10/20/2011 ATTORNEY TO BE NOTICED

Tara L Borelli (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Corey Seemiller TERMINATED: 09/22/2014

represented by Daniel Clayton Barr (See above for address) ATTORNEY TO BE NOTICED

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 7 of 21

Desmund Wu (See above for address) TERMINATED: 09/08/2010
James Evans Barton , II (See above for address) TERMINATED: 04/05/2010
Jennifer C Pizer (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED
Jerica Lyn Peters (See above for address) ATTORNEY TO BE NOTICED
Kirstin T Eidenbach (See above for address) TERMINATED: 04/02/2015
Peter C Renn (See above for address) ATTORNEY TO BE NOTICED
Rhonda Lorraine Barnes (See above for address) TERMINATED: 10/20/2011 ATTORNEY TO BE NOTICED
Tara L Borelli (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Janice K Brewer in her official capacity as Governor of the State of Arizona

represented by Alisa Ann Blandford Office of the Attorney General 1275 W Washington Phoenix, AZ 85007 602−542−7687 Fax: 602−542−7644 Email: Alisa.blandford@azag.gov TERMINATED: 08/29/2013
Charles Arnold Grube Office of the Attorney General − 1275 W Washington Phoenix, AZ 85007 602−542−8341 Fax: 602−542−4385 Email: AdminLaw@azag.gov ATTORNEY TO BE NOTICED
Kathryn J Winters Office of the Attorney General Criminal Appeals Section 400 W Congress Ste S−315 Tucson, AZ 85701−1367 520−628−6542

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 8 of 21

Fax: 520−628−6530 Email: adminlaw@azag.gov ATTORNEY TO BE NOTICED

Defendant
David Raber in his official capacity as Interim Director of the Arizona Department of Administration and Personnel Board TERMINATED: 09/09/2013

represented by Alisa Ann Blandford (See above for address) TERMINATED: 08/29/2013
Charles Arnold Grube (See above for address) ATTORNEY TO BE NOTICED

Kathryn J Winters (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kathy Peckardt in her official capacity as Director of Human Resources for the Arizona Department of Administration and Personnel Board TERMINATED: 09/09/2013

represented by Alisa Ann Blandford (See above for address) TERMINATED: 08/29/2013
Charles Arnold Grube (See above for address) ATTORNEY TO BE NOTICED

Kathryn J Winters (See above for address) ATTORNEY TO BE NOTICED

Defendant
Philip Hamilton in his official capacity as Assistant Director of the Benefits Services Division of the Arizona Department of Administration and Personnel Board TERMINATED: 03/15/2010

represented by Alisa Ann Blandford (See above for address) TERMINATED: 08/29/2013
Charles Arnold Grube (See above for address) ATTORNEY TO BE NOTICED

Kathryn J Winters (See above for address) ATTORNEY TO BE NOTICED

Defendant
Unknown Parties named as Does 1 through 100

Defendant
Brian McNeil in his official capacity as Director of the Arizona Department of Administration as named on the second amended complaint

represented by Charles Arnold Grube (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/17/2009

# Docket Text
1 COMPLAINT. Filing fee received: $ 350.00, receipt number 0970−3365151, filed by Stephen Russell, Judith McDaniel, Deanna Pfleger, Leslie Kemp, Joseph R. Diaz, Carrie Sperling, Tracy Collins, Keith Humphrey, Corey Seemiller, Beverly Seckinger. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)(Barr, Daniel) (Entered: 11/17/2009)

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 9 of 21

11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/18/2009 11/18/2009 11/18/2009 11/18/2009 11/19/2009 11/19/2009 11/19/2009
11/19/2009
11/20/2009

2 SUMMONS Submitted by Tracy Collins, Joseph R. Diaz, Keith Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling (Barr, Daniel) (Entered: 11/17/2009)
3 SUMMONS Submitted by Tracy Collins, Joseph R. Diaz, Keith Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling (Barr, Daniel) (Entered: 11/17/2009)
4 SUMMONS Submitted by Tracy Collins, Joseph R. Diaz, Keith Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling (Barr, Daniel) (Entered: 11/17/2009)
5 SUMMONS Submitted by Tracy Collins, Joseph R. Diaz, Keith Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling (Barr, Daniel) (Entered: 11/17/2009)
11 MINUTE ORDER: This case has been reassigned to United States District Judge John W Sedwick. Future filings should reflect the case umbe CV 09−2402−PHX−JWS. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.(AMB) (Entered: 11/19/2009)
12 Notice re Magistrate consent form. (AMB) (Entered: 11/19/2009)
6 NOTICE of Appearance by Rhonda Lorraine Barnes on behalf of Tracy Collins, Joseph R. Diaz, Keith Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling (Barnes, Rhonda) (Entered: 11/18/2009)
7 NOTICE of Appearance by James Evans Barton on behalf of Tracy Collins, Joseph R. Diaz, Keith Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling (Barton, James) (Entered: 11/18/2009)
8 MOTION for Admission Pro Hac Vice as to attorney Tara L Borelli on behalf of plaintiffs Tracy Collins, Joseph R. Diaz, Keith Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, and Carrie Sperling. (BAS) (Entered: 11/19/2009)
9 MOTION for Admission Pro Hac Vice as to attorney Jennifer C Pizer on behalf of plaintiffs Tracy Collins, Joseph R. Diaz, Keith Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, and Carrie Sperling. (BAS) (Entered: 11/19/2009)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX090783 as to Jennifer C Pizer. (BAS) (Entered: 11/19/2009)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX090784 as to Tara L Borelli. (BAS) (Entered: 11/19/2009)
10 ORDER pursuant to General Order 05−25 granting 8 Motion for Admission Pro Hac Vice; granting 9 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 11/19/2009)
13 Summons Issued as to Janice K. Brewer, Phillip Hamilton, Kathy Peckardt, David Raber. (Attachments: # 1 David Raber, # 2 Kathy Peckardt, # 3 Phillip Hamilton)(AMB). *** IMPORTANT: You must select "Document and stamps" or "Document and comments" on the print screen in order for the court seal to appear on the summons you print. Modified on 11/19/2009 TO NOTE THAT SUMMONS WERE DATED/ISSUED ON 11/18/09 (REW, ). (Entered: 11/19/2009)
14 NOTICE of Appearance by Tara L Borelli on behalf of Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling (Borelli, Tara) (Entered: 11/20/2009)

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 10 of 21

11/20/2009
12/10/2009 12/10/2009 12/11/2009 01/07/2010
01/08/2010
01/25/2010 01/25/2010 02/11/2010
02/12/2010 02/12/2010 02/16/2010
02/22/2010 02/23/2010
02/24/2010 03/15/2010 04/01/2010

15 NOTICE of Appearance by Jennifer C Pizer on behalf of Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling (Pizer, Jennifer) (Entered: 11/20/2009)
16 NOTICE of Appearance by Charles Arnold Grube on behalf of Janice K Brewer, Phillip Hamilton, Kathy Peckardt, David Raber (Grube, Charles) (Entered: 12/10/2009)
17 STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT by Janice K Brewer, David Raber, Phillip Hamilton, Kathy Peckardt. (Attachments: # 1 Text of Proposed Order Order extending time)(Grube, Charles) (Entered: 12/10/2009)
18 ORDER granting 17 Stipulation For Extension of Time To Answer Complaint. Defendants' answer due 1/8/2010. Signed by Judge John W Sedwick on 12/11/09. (JWS, ) (Entered: 12/11/2009)
19 AMENDED COMPLAINT for Injunctive and Declaratory Relief against Janice K Brewer, Phillip Hamilton, Kathy Peckardt, David Raber, Unknown Parties, filed by Stephen Russell, Judith McDaniel, Deanna Pfleger, Leslie Kemp, Joseph R Diaz, Carrie Sperling, Tracy Collins, Keith B Humphrey, Corey Seemiller, Beverly Seckinger.(Barton, James) (Entered: 01/07/2010)
20 Additional Attachments to Main Document re 19 Amended Complaint, Index of Exhibits and Exhibits A, B and C by Plaintiffs Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Barton, James) (Entered: 01/08/2010)
21 MOTION to Dismiss Case for Lack of Jurisdiction by Philip Hamilton. (Attachments: # 1 Affidavit Declaration of Philip Hamilton)(Grube, Charles) (Entered: 01/25/2010)
22 MOTION to Dismiss Case by Janice K Brewer, Kathy Peckardt, David Raber. (Grube, Charles) (Entered: 01/25/2010)
23 RESPONSE to Motion re 22 MOTION to Dismiss Case by Defendants Brewer, Raber and Peckardt filed by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Borelli, Tara) (Entered: 02/11/2010)
24 *** DOCUMENT STRICKEN PER COURT ORDER 28 , FILED 2/23/10 *** Notice of Appearance filed by Pasquale (not a party to the case) (REW) Modified on 2/23/2010 (KMG). (Entered: 02/16/2010)
25 *** DOCUMENT STRICKEN PER COURT ORDER 28 , FILED 2/23/10 *** Additional Attachments to Main Document; Exhibits re 24 Notice filed by Pasquale (not a party to the case) (REW) Modified on 2/23/2010 (KMG). (Entered: 02/16/2010)
26 RESPONSE to Motion re 21 MOTION to Dismiss Case for Lack of Jurisdiction by Defendant Philip Hamilton filed by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Barton, James) (Entered: 02/16/2010)
27 REPLY in Support re 22 MOTION to Dismiss Case filed by Janice K Brewer, Kathy Peckardt, David Raber. (Grube, Charles) (Entered: 02/22/2010)
28 ORDER − At docket 24 Pasquale Labate purports to join in this litigation. Pasquale Labate is not a party to this lawsuit. The Clerk is directed to strike the filing at docket 24 and the related materials at docket 25 from the record of this case. Signed by Judge John W Sedwick on 2/22/10. (KMG) (Entered: 02/23/2010)
29 REPLY in Support re 21 MOTION to Dismiss Case for Lack of Jurisdiction filed by Philip Hamilton. (Grube, Charles) (Entered: 02/24/2010)
30 MINUTE ORDER from the Chambers of Judge John W Sedwick granting Defendant Hamilton's 21 Motion to Dismiss..(REW) (Entered: 03/15/2010)
31 MOTION for Preliminary Injunction by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Attachments: # 1 Affidavit of Beverly

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 11 of 21

04/01/2010 04/01/2010 04/02/2010 04/05/2010 04/05/2010 04/05/2010 04/16/2010 04/19/2010 05/03/2010
05/03/2010 05/27/2010

Seckinger, # 2 Affidavit of Carrie Sperling, # 3 Affidavit of Corey Seemiller, # 4 Affidavit of Deanna Pfleger, # 5 Affidavit of Joseph R. Diaz, # 6 Affidavit of Keith B. Humphrey, # 7 Affidavit of Leslie Kemp, # 8 Affidavit of Stephen Russell, # 9 Affidavit of Tracy Collins, # 10 Text of Proposed Order for Preliminary Injunction)(Borelli, Tara) (Entered: 04/01/2010)
32 Additional Attachments to Main Document re 31 MOTION for Preliminary Injunction Declaration of Tara Borelli in Support of Motion for Preliminary Injunction by Plaintiffs Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Attachments: # 1 Exhibit D, # 2 Exhibit E)(Borelli, Tara) (Entered: 04/01/2010)
33 Additional Attachments to Main Document re 31 MOTION for Preliminary Injunction Certificate of Service for Proposed Order by Plaintiffs Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Borelli, Tara) (Entered: 04/01/2010)
34 MOTION for Admission Pro Hac Vice as to attorney Desmund Wu on behalf of Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, and Corey Seemiller. (BAS) (Entered: 04/05/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX095380 as to Desmund Wu. (BAS) (Entered: 04/05/2010)
35 ORDER pursuant to General Order 05−25 granting 34 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 04/05/2010)
36 Notice re Substitution by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling (Barnes, Rhonda) (Entered: 04/05/2010)
37 STIPULATION For Extension of Time to File Response to Motion for Preliminary Injunction by Janice K Brewer. (Attachments: # 1 Text of Proposed Order)(Winters, Kathryn) (Entered: 04/16/2010)
38 ORDER granting 37 Stipulation of time to file response to Motion for Preliminary Injunction. Defendants' response due on or before 5/3/10 and plaintiffs' reply due on or before 5/27/10. Signed by Judge John W Sedwick on 4/19/10. (JWS) (Entered: 04/19/2010)
39 JUDGE SEDWICK TEXT ORDER re 31 MOTION for Preliminary Injunction and 22 MOTION to Dismiss Case: The court will hear argument on the motions at dockets 22 and 31 in Courtroom 401, at the Sandra Day O' Connor Courthouse, 401 West Washington Street, Phoenix, at 9:00 AM on June 28, 2010. The court does not expect that testimony will be needed in connection with the motion for a preliminary injunction, but if a party anticipates the need to present testimony, the party shall file a notice advising of that fact no later than May 28, 2010. The notice must identify each witness, briefly summarize the testimony expected from each witness, and provide an estimate of the duration of direct examination of each witness. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. cc: AZ and AK calendar clerks. (JWS) (Entered: 05/03/2010)
40 RESPONSE in Opposition re 31 MOTION for Preliminary Injunction filed by Janice K Brewer, Kathy Peckardt, David Raber. (Attachments: # 1 Affidavit Declaration of Charles A Grube, # 2 Affidavit Declaration of Karen Battilana, # 3 Exhibit Battilana Declaration, Ex. B, Part 1, # 4 Exhibit Battilana Declaration, Ex. B. Part 2, # 5 Exhibit Battilana Ex. B, Part 3)(Grube, Charles) (Entered: 05/03/2010)
41 REPLY in Support re 31 MOTION for Preliminary Injunction filed by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger,

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 12 of 21

05/27/2010 06/18/2010 06/28/2010
07/16/2010 07/22/2010 07/23/2010
08/06/2010 08/16/2010 08/17/2010 08/24/2010

Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Borelli, Tara) (Entered: 05/27/2010)
42 Additional Attachments to Main Document re 41 Reply in Support of Motion Declaration of M.V. Lee Badgett in Support of Plaintiffs' Reply In Support of Motion for Preliminary Injunction by Plaintiffs Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H)(Borelli, Tara) (Entered: 05/27/2010)
43 DECLARATION of Tara Borelli in Support of Plaintiffs' Motion for a Preliminary Injunction re 31 MOTION for Preliminary Injunction by Plaintiffs Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Attachments: # 1 Exhibit I)(Borelli, Tara) (Entered: 06/18/2010)
44 Minute Entry. Proceedings held before Judge John W Sedwick. Motion Hearings as to Doc. 31 Motion for Preliminary Injunction and Doc. 22 Motion to Dismiss held on 6/28/2010. Appearances: Tara Borelli, Daniel Barr, Rhonda Barnes, Jennifer Pizer and Kirstin Eldenbach for the Plaintiff. Charles Grube for the Defendant. Also present is Joseph Sciarratta, Jr., client representative for the Defendant. Argument held. Matter is taken under advisement. (Court Reporter/ECR Vicki Reger.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (VAR) (Entered: 06/28/2010)
45 TRANSCRIPT DESIGNATION AND ORDER FORM by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling for proceedings held on 6/28/2010 before Judge Sedwick. (Borelli, Tara) (Entered: 07/16/2010)
46 Notice re Report on Extension of Plan Year by Janice K Brewer, Kathy Peckardt, David Raber (Attachments: # 1 Exhibit State letter regarding extension)(Grube, Charles) (Entered: 07/22/2010)
47 ORDER granting in part and denying in part 22 Motion to Dismiss Case: (1) the motion is DENIED with respect to plaintiffs equal protection claim; (2) the motion is GRANTED with respect to plaintiffs substantive due process claim; and (3) the motion is DENIED as to defendant Brewers claim of immunity; and granting 31 Motion for Preliminary Injunction: 1) Defendants are enjoined from enforcing A.R.S. § 38−651(O) to eliminate family insurance eligibility for lesbian and gay State employees, and their domestic partners and domestic partners children who satisfy the criteria set forth in Ariz. Admin. Code § R2−5−101; 2) Defendants are required to make available family health insurance coverage for lesbian and gay State employees, including plaintiffs, who satisfy the relevant eligibility criteria set forth in Ariz. Admin. Code § R2−5−101 to the same extent such benefits are made available to married State employees; 3) The preliminary injunction shall take effect within ten (10) business days and shall remain in effect pending trial in this action or further order of the court. Signed by Judge John W Sedwick on 7/23/10.(JWS) (Entered: 07/23/2010)
48 ANSWER to 19 Amended Complaint, by Janice K Brewer, Kathy Peckardt, David Raber.(Grube, Charles) (Entered: 08/06/2010)
49 NOTICE OF INTERLOCUTORY APPEAL to 9th Circuit as to 47 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction,,,,,,,, by Janice K Brewer, Kathy Peckardt, David Raber. Filing fee received: $ 455.00, receipt number 0970−4235215 (Attachments: # 1 Appeal Information Representation Statement)(Grube, Charles) (Entered: 08/16/2010)
50 Ninth Circuit Case Number 10−16797 for 49 Notice of Interlocutory Appeal. (ESL) (Entered: 08/17/2010)
51 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing Proceedings held on 06/28/2010, before Judge John W Sedwick. Court Recorder Vicki Reger. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/14/2010.

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 13 of 21

08/27/2010 09/08/2010 10/07/2010
10/13/2010
01/05/2011 01/11/2011 01/18/2011 03/28/2011 06/06/2011 10/20/2011 05/21/2012 05/24/2012
05/24/2012

Redacted Transcript Deadline set for 9/24/2010. Release of Transcript Restriction set for 11/22/2010. (BAS) (Entered: 08/24/2010)
52 AMENDED ANSWER to Amended Complaint by Janice K Brewer, Kathy Peckardt, David Raber. (Grube, Charles) (Entered: 08/27/2010)
53 NOTICE of Attorney Substitution by Tara L Borelli (Borelli, Tara) (Entered: 09/08/2010)
54 STIPULATION for Dismissal Without Prejudice of Plaintiff Judith McDaniel and Stay of Proceedings Pending Preliminary Injunction Appeal by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Attachments: # 1 Text of Proposed Order)(Borelli, Tara) (Entered: 10/07/2010)
55 ORDER − Upon 54 Stipulation for Dismissal of Pla Judith McDaniel Without Prejudice and for Stay of District Court Proceedings Pending Interlocutory Appeal, IT IS ORDERED that Pla Judith McDaniel is dismissed from this action without prejudice. FURTHER ORDERED that all proceedings in this Court, with the exception of further proceedings, if any, related to the preliminary injunction, shall be stayed until fourteen (14) days after the United States Court of Appeals for the Ninth Circuit issues its ruling on review of the 7/23/2010 order of this Court granting Plas' 47 request for a preliminary injunction. Signed by Judge John W Sedwick on 10/12/10. (SAT) (Entered: 10/13/2010)
56 NOTICE re Firm Name Change by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Barnes, Rhonda) (Entered: 01/05/2011)
57 MOTION to Terminate Noticing by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Attachments: # 1 Text of Proposed Order)(Barnes, Rhonda) (Entered: 01/11/2011)
58 ORDER granting Plaintiffs' 57 Motion to Terminate Noticing; James E Barton II's e−mail address to be removed from the Court's electronic noticing of filings in this matter. Signed by Judge John W Sedwick on 1/14/11.(REW) (Entered: 01/18/2011)
59 NOTICE of Attorney Substitution by Jennifer C Pizer (Pizer, Jennifer) (Entered: 03/28/2011)
60 MANDATE of USCA as to 49 Notice of Interlocutory Appeal, appeal case number 10−16797 filed by David Raber, Janice K Brewer, Kathy Peckardt. Plaintiffs−appellees' unopposed motion to dismiss Tracy Collins without prejudice is GRANTED. (Attachments: # 1 NDA)(ESL) (Entered: 06/06/2011)
61 NOTICE re Withdrawal of Counsel of Rhonda L. Barnes by Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling . (Eidenbach, Kirstin) (Entered: 10/20/2011)
62 MANDATE of USCA re 10−16797 affirming District Court decision as to 49 Notice of Interlocutory Appeal, filed by David Raber, Janice K Brewer, Kathy Peckardt. (Attachments: # 1 Order, # 2 Order, # 3 Opinion, # 4 NDA). (LSP) (Entered: 05/21/2012)
63 JUDGE SEDWICK TEXT ORDER LIFTING STAY. The Court of Appeals' mandate disposing of the interlocutory appeal has been filed at docket 62. The stay of proceedings in this case to permit the interlocutory appeal is, therefore, lifted. The case will now proceed in this court. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (JWS) (Entered: 05/24/2012)
64 INITIAL CASE STATUS REPORT AND CASE SCHEDULING AND PLANNING ORDER. Counsel for all parties must meet within 21 days from service of this order for purposes of jointly completing a scheduling and planning report. Within 28 days from service of this order, counsel for plaintiff shall serve and file the parties' report with the court. (JWS) (Entered: 05/24/2012)

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 14 of 21

06/05/2012 06/18/2012
12/11/2012 01/22/2013 01/24/2013
07/01/2013 07/02/2013
07/12/2013 07/12/2013 07/30/2013 07/31/2013 08/01/2013 08/05/2013

65 STIPULATION FOR STAY PENDING APPLICATION FOR CERTIORARI by Janice K Brewer, Kathy Peckardt, David Raber. (Attachments: # 1 Text of Proposed Order)(Grube, Charles) (Entered: 06/05/2012)
66 ORDER for Stay Pending Application for Certiorari, pursuant to the Parties' 65 Stipulation: Staying this case pending the Defendants' filing of a petition for certiorari to the United States Supreme Court and until 2 weeks after Supreme Court proceedings are complete; continuing the preliminary injunction in this case unless and until the same is modified or terminated by subsequent order of this Court; providing that the parties may, without being in violation of the stay entered by this order, apply to this Court at any time for modification of the preliminary injunction for good cause. Signed by Judge John W Sedwick on 6/18/12. (REW) (Entered: 06/18/2012)
67 JUDGE SEDWICK TEXT STATUS REPORT ORDER. On or before January 15, 2013, counsel for defendants will please file a report advising the court of the status of the petition for certiorari. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (JWS) (Entered: 12/11/2012)
68 STATUS REPORT on Petition for Certiorari by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Judith McDaniel, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Borelli, Tara) (Entered: 01/22/2013)
69 ORDER FROM CHAMBERS − The court has reviewed plaintiffs' status report at docket 68 and appreciates receiving the information which the court had asked defendants to provide, but which defendants failed to provide. Defense counsel will please act with improved diligence in the future. Based on the status report at docket 68, this matter will remain stayed. The next status report on the petition for certiorari shall be filed by defendants on July 1, 2013, and if they fail to do so, plaintiffs may file the report on or before July 8, 2013. If defendants fail to timely comply with this order, the court will consider imposition of sanctions. (KMG) (Entered: 01/24/2013)
70 REPORT of Status of Application for Certiorari by Defendants Janice K Brewer, Kathy Peckardt, David Raber. (Grube, Charles) (Entered: 07/01/2013)
71 INITIAL CASE STATUS REPORT / CASE SCHEDULING AND PLANNING ORDER: Counsel for all parties must meet within 21 days from service of this order for purposes of jointly completing a scheduling and planning report. Within 28 days from service of this order, counsel for plaintiff shall serve and file the parties' report with the court. In the event the parties to this case are already actively engaged in settlement negotiations, counsel for plaintiff shall so advise the court within seven (7) days following the entry of this order, and shall specify the date by which the parties expect to conclude their settlement negotiations. (JWS) (Entered: 07/02/2013)
72 NOTICE of Appearance by Kirstin T Eidenbach on behalf of Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Eidenbach, Kirstin) (Entered: 07/12/2013)
73 NOTICE of Appearance by Jerica Lyn Peters on behalf of Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Peters, Jerica) (Entered: 07/12/2013)
74 REPORT of Rule 26(f) Planning Meeting by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Peters, Jerica) (Entered: 07/30/2013)
75 SCHEDULING AND PLANNING ORDER: Fact Discovery due by 4/25/2014. Dispositive motions due by 9/15/2014. (See document for further details). Signed by Judge John W Sedwick on 7/31/13. (LAD) (Entered: 07/31/2013)
76 NOTICE re Service of Plaintiffs' Initial Disclosures (Local Civil Rule 5.2) by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling . (Borelli, Tara) (Entered: 08/01/2013)
77 NOTICE re Defendants' Notice of Service of Initial Disclosures and Preliminary Witness List by Janice K Brewer, Kathy Peckardt, David Raber . (Grube, Charles)

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 15 of 21

08/29/2013 09/06/2013
09/09/2013
09/09/2013 09/17/2013 09/17/2013 09/18/2013 09/18/2013 09/30/2013 11/04/2013 12/13/2013 12/20/2013

(Entered: 08/05/2013)
78 NOTICE of Attorney Substitution by Charles Arnold Grube. (Grube, Charles) (Entered: 08/29/2013)
79 STIPULATION to File Second Amended Complaint by Tracy Collins, Joseph R Diaz, Keith B Humphrey, Leslie Kemp, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller, Carrie Sperling. (Attachments: # 1 Exhibit 1 Proposed Second Amended Complaint, # 2 Exhibit A to Second Amended Complaint, # 3 Exhibit B to Second Amended Complaint, # 4 Exhibit C to Second Amended Complaint, # 5 Text of Proposed Order, # 6 Certificate of Service)(Borelli, Tara) (Entered: 09/06/2013)
80 ORDER that Plaintiffs are granted leave to file a Second Amended Complaint 79 ; FURTHER ORDERED that Plaintiffs shall file a non−redlined version of their Second Amended Complaint within seven (7) days of this Order; FURTHER ORDERED that service shall be perfected on all Defendants by Plaintiffs' filing and service of the non−redlined Second Amended Complaint on Defendants' counsel, Charles A. Grube, through the electronic case filing system; IT IS FURTHER ORDERED that Defendants may file a responsive pleading within twenty−one (21) days of Plaintiffs' filing of the Second Amended Complaint; IT IS FURTHER ORDERED that the clerk shall add Brian McNeil to the electronic docket as a defendant and shall designate David Raber as terminated; FURTHER ORDERED that based on Defendants' stipulation that (i) complete relief is available from Defendants Brewer and McNeil, and (ii) Defendants Brewer and McNeil will ensure full compliance with all injunctive relief that the Court has previously and may in the future grant to Plaintiffs, and based on Plaintiffs' reliance on those stipulations, Ms. Isaacson is dismissed from the case, and the clerk shall designate her predecessor, Kathy Peckardt, as terminated on the electronic docket; and IT IS FURTHER ORDERED that upon the filing of the Second Amended Complaint, Plaintiffs Tracy Collins, Keith B. Humphrey, Carrie Sperling, and Leslie Kemp are dismissed without prejudice and will be terminated on the docket. Signed by Judge John W Sedwick on 9/9/2013. (KMG) (Entered: 09/09/2013)
81 AMENDED COMPLAINT (Second) against Janice K Brewer, Brian McNeil, Unknown Parties filed by Deanna Pfleger, Joseph R Diaz, Stephen Russell, Corey Seemiller, Beverly Seckinger. (Attachments: # 1 Exhibit A to Second Amended Complaint, # 2 Exhibit B to Second Amended Complaint, # 3 Exhibit C to Second Amended Complaint)(Borelli, Tara) (Entered: 09/09/2013)
82 Joint MOTION for Protective Order by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Attachments: # 1 Text of Proposed Order)(Peters, Jerica) (Entered: 09/17/2013)
83 (Filed at doc.#85) LODGED Proposed Stipulated Protective Order re: 82 Joint MOTION for Protective Order . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Peters, Jerica) Modified on 9/18/2013 (KMG). (Entered: 09/17/2013)
84 ORDER that the Motion is GRANTED. IT IS FURTHER ORDERED that the Clerk's Office file the Stipulated Protective Order lodged at Doc. 83 . Signed by Judge John W Sedwick on 9/18/2013.(KMG) (Entered: 09/18/2013)
85 STIPULATED PROTECTIVE ORDER (See PDF for full details.) (KMG) (Entered: 09/18/2013)
86 ANSWER to 81 Amended Complaint, by Janice K Brewer, Brian McNeil.(Grube, Charles) (Entered: 09/30/2013)
87 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Tara L Borelli. (Borelli, Tara) (Entered: 11/04/2013)
88 NOTICE of Service of Discovery filed by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Borelli, Tara) (Entered: 12/13/2013)
89 MOTION for Class Certification (Unopposed) by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Attachments: # 1 Text of Proposed Order)(Peters, Jerica) (Entered: 12/20/2013)

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 16 of 21

12/20/2013
12/20/2013
12/20/2013 12/20/2013 12/20/2013 12/20/2013 12/20/2013 12/23/2013 12/23/2013
02/21/2014 02/24/2014 03/05/2014 03/05/2014 03/18/2014 04/25/2014 05/22/2014 05/23/2014

90 DECLARATION of Daniel C. Barr re 89 MOTION for Class Certification (Unopposed) by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Attachments: # 1 Exhibit A)(Peters, Jerica) (Entered: 12/20/2013)
91 DECLARATION of Tara L. Borelli re 89 MOTION for Class Certification (Unopposed) by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Attachments: # 1 Exhibit A)(Peters, Jerica) (Entered: 12/20/2013)
92 DECLARATION of Joseph R. Diaz re 89 MOTION for Class Certification (Unopposed) by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Peters, Jerica) (Entered: 12/20/2013)
93 DECLARATION of Beverly Seckinger re 89 MOTION for Class Certification (Unopposed) by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Peters, Jerica) (Entered: 12/20/2013)
94 DECLARATION of Stephen Russell re 89 MOTION for Class Certification (Unopposed) by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Peters, Jerica) (Entered: 12/20/2013)
95 DECLARATION of Deanna Pfleger re 89 MOTION for Class Certification (Unopposed) by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Peters, Jerica) (Entered: 12/20/2013)
96 STIPULATION RE: 89 MOTION for Class Certification (Unopposed) by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Attachments: # 1 Text of Proposed Order)(Peters, Jerica) (Entered: 12/20/2013)
97 ORDER re pursuant to 96 Stipulation: No additional briefing is required with respect to Plaintiffs' Unopposed Motion for Class Certification. Signed by Judge John W Sedwick on 12/23/13. (JWS) (Entered: 12/23/2013)
98 ORDER granting 89 Motion for Class Certification. Plaintiffs meet the requirements to certify the putative class under Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. This action is certified as a class action under Rule 23(b)(2). The Court appoints Plaintiffs Joseph R. Diaz, Beverly Seckinger, Stephen Russell, and Deanna Pfleger as Class representatives. The Court appoints Lambda Legal Defense and Education Fund, Inc. and Perkins Coie LLP as Class counsel. Signed by Judge John W Sedwick on 12/23/13.(JWS) (Entered: 12/23/2013)
99 NOTICE of Service of Discovery filed by Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 02/21/2014)
100 NOTICE of Service of Discovery filed by Joseph R Diaz, Deanna Pfleger, Beverly Seckinger, Corey Seemiller. (Borelli, Tara) (Entered: 02/24/2014)
101 Witness List by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Borelli, Tara) (Entered: 03/05/2014)
102 Witness List by Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 03/05/2014)
103 NOTICE of Service of Discovery filed by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Eidenbach, Kirstin) (Entered: 03/18/2014)
104 NOTICE of Service of Discovery filed by Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 04/25/2014)
105 NOTICE re: of Service of Expert Report by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller . (Peters, Jerica) (Entered: 05/22/2014)
106 NOTICE re: Notice of Service of Defendants' Notice Concerning Expert Disclosure as Required by Scheduling Order by Janice K Brewer, Brian McNeil . (Grube, Charles) (Entered: 05/23/2014)

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05/29/2014 06/06/2014 06/26/2014 07/28/2014 08/01/2014 08/01/2014
08/08/2014 08/08/2014 08/18/2014
08/20/2014 08/21/2014
09/22/2014 09/22/2014 09/22/2014

107 Witness List by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Peters, Jerica) (Entered: 05/29/2014)
108 Witness List by Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 06/06/2014)
109 Witness List by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Borelli, Tara) (Entered: 06/26/2014)
110 MOTION for Admission Pro Hac Vice as to attorney Peter C. Renn by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Renn, Peter) (Entered: 07/28/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX148856 as to Peter C Renn. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 08/01/2014)
111 ORDER pursuant to General Order 09−08 granting 110 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 08/01/2014)
112 STIPULATION To Continue Discovery Deadlines As Allowed By Scheduling And Planning Order by Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 08/08/2014)
113 *NOTICE of Service of Discovery − Rebuttal Expert Disclosure As Required By Scheduling Order by Janice K Brewer, Brian McNeil . (Grube, Charles) *Modified to correct event on 8/11/2014 (KMG). (Entered: 08/08/2014)
114 JUDGE SEDWICK TEXT ORDER. The stipulation at docket 112 is approved. The court awaits the joint motion mentioned therein. [COUNSEL ARE REMINDED THAT A COPY OF ALL PROPOSED ORDERS ARE TO BE SENT IN WORD PERFECT OR WORD TO THE PRESIDING JUDGE.] This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (JWS) (Entered: 08/18/2014)
115 Joint MOTION to Amend/Correct 75 Scheduling Order by Janice K Brewer, Brian McNeil. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Stipulated Motion to Modify Scheduling and Planning Order)(Grube, Charles) (Entered: 08/20/2014)
116 ORDER granting 115 Motion to Modify Scheduling and Planning Order. The scheduling and planning order at docket 75 is VACATED. The parties shall file dispositive cross−motions for summary judgment on or before October 1, 2014. After the Court resolves the cross−motions for summary judgment, unless there is a final judgment disposing of all claims as to all parties, the Court will conduct a Pretrial Conference pursuant to Fed. R. Civ. P. 16, to identify remaining issues and issue a new Scheduling and Planning Order for the resolution of remaining issues, including new deadlines for disclosures and discovery. Signed by Judge John W Sedwick on 8/21/14.(JWS) (Entered: 08/21/2014)
117 Joint MOTION for Leave to File Excess Pages for Memoranda of Points and Authorities Regarding Motions for Summary Judgment by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Renn, Peter) (Entered: 09/22/2014)
118 STIPULATION of Voluntary Dismissal of Named Plaintiff Corey Seemiller Pursuant to Fed. R. Civ. P. 41(a)(2) by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger, Corey Seemiller. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Renn, Peter) (Entered: 09/22/2014)
119 ORDER granting 117 Motion for Leave to File Excess Pages. Plaintiffs and Defendants may file memoranda of points and authorities in support of or in opposition to motions for summary judgment of no more than 30 pages each and reply

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09/22/2014 09/29/2014 09/30/2014 09/30/2014 09/30/2014 09/30/2014 09/30/2014 09/30/2014 09/30/2014 09/30/2014 09/30/2014 09/30/2014 09/30/2014 09/30/2014

briefs of no more than 15 pages each. Signed by Judge John W Sedwick on 9/22/14.(JWS) (Entered: 09/22/2014)
120 ORDER pursuant to the parties' 118 Stipulation: that Corey Seemiller is dismissed as a named Plaintiff, without prejudice, and with no effect upon any rights Ms. Seemiller may have as a class member. Signed by Judge John W Sedwick on 9/22/2014. (KMG) (Entered: 09/22/2014)
121 NOTICE of Service of Discovery filed by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Renn, Peter) (Entered: 09/29/2014)
122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Borelli, Tara) (Entered: 09/30/2014)
123 STATEMENT of Plaintiffs' Separate Statement of Facts in Support of Their Motion for Summary Judgment re: 122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Borelli, Tara) (Entered: 09/30/2014)
124 REQUEST re: Plaintiffs' Request for Judicial Notice in Support of Their Motion for Summary Judgment by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit Index and Exhibits A−O)(Borelli, Tara) (Entered: 09/30/2014)
125 DECLARATION of Tara L. Borelli re: 122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit Index and Exhibits A−B)(Borelli, Tara) (Entered: 09/30/2014)
126 DECLARATION of Joseph R. Diaz re: 122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit Index and Exhibits A−C)(Borelli, Tara) (Entered: 09/30/2014)
127 DECLARATION of Stephen Russell re: 122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Borelli, Tara) (Entered: 09/30/2014)
128 DECLARATION of Deanna Pfleger re: 122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Borelli, Tara) (Entered: 09/30/2014)
129 DECLARATION of Tania Katan re: 122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit Index and Exhibits A−B)(Borelli, Tara) (Entered: 09/30/2014)
130 DECLARATION of Mia LaBarbara re: 122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit Index and Exhibits A−C)(Borelli, Tara) (Entered: 09/30/2014)
131 DECLARATION of William Scott Neeley re: 122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit Index and Exhibits A−C)(Borelli, Tara) (Entered: 09/30/2014)
132 DECLARATION of M.V. Lee Badgett, Ph.D. re: 122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit Index and Exhibits A−B)(Borelli, Tara) (Entered: 09/30/2014)
133 DECLARATION of Beverly Seckinger re: 122 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 19 of 21

10/01/2014 10/01/2014 10/01/2014 10/01/2014 10/31/2014
11/06/2014
11/20/2014 11/20/2014 11/20/2014 11/20/2014 11/26/2014
12/04/2014 12/09/2014 12/10/2014

Index and Exhibits A−C)(Borelli, Tara) (Entered: 09/30/2014)
134 MOTION for Summary Judgment by Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 10/01/2014)
135 STATEMENT of Facts in Support of Defendants Motion for Summary Judgment by Defendants Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 10/01/2014)
136 DECLARATION of Marie Isaacson Supporting Defendants Motion for Summary Judgment by Defendants Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 10/01/2014)
137 DECLARATION of John Arnold Supporting Defendants Motion for Summary Judgment by Defendants Janice K Brewer, Brian McNeil. (Attachments: # 1 Exhibit)(Grube, Charles) (Entered: 10/01/2014)
138 *Joint MOTION to Dissolve Preliminary Injunction and to Dismiss Case and NOTICE of Withdrawal of Motions for Summary Judgmentby Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order Setting Date for Dissolution of Preliminary Injunction and Case Dismissal, # 3 Certificate of Service)(Borelli, Tara) *Modified to include text on 11/3/2014 (KMG). (Entered: 10/31/2014)
139 ORDER granting 138 Joint Motion. IT IS HEREBY ORDERED that the preliminary injunction, Doc. 47 , is dissolved effective at midnight MST on December 31, 2014; and IT IS FURTHER ORDERED that the case will be dismissed as moot at the same time the preliminary injunction is dissolved, i.e., midnight MST on December 31, 2014, and the case may be closed and judgment shall be entered as soon thereafter as possible. Signed by Judge John W Sedwick on 11/6/14. (LAD) (Entered: 11/06/2014)
140 MOTION to Vacate 139 Order on Motion for Miscellaneous Relief and to Modify Preliminary Injunction by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Text of Proposed Order)(Borelli, Tara) (Entered: 11/20/2014)
141 DECLARATION of Tara L. Borelli re: 140 MOTION to Vacate 139 Order on Motion for Miscellaneous Relief and to Modify Preliminary Injunction by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit A)(Borelli, Tara) (Entered: 11/20/2014)
142 MOTION Shorten Time for Briefing re: 140 MOTION to Vacate 139 Order on Motion for Miscellaneous Relief and to Modify Preliminary Injunction by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Text of Proposed Order)(Borelli, Tara) (Entered: 11/20/2014)
143 DECLARATION of Tara L. Borelli re: 142 MOTION Shorten Time for Briefing re: 140 MOTION to Vacate 139 Order on Motion for Miscellaneous Relief and to Modify Preliminary Injunction by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Borelli, Tara) (Entered: 11/20/2014)
144 ORDER granting 142 MOTION Shorten Time for Briefing re: 140 MOTION to Vacate 139 Order on Motion and to Modify Preliminary Injunction. IT IS HEREBY ORDERED that any opposition to the Motion must be filed on or before December 4, 2014, and any reply filed in support of the Motion must be filed on or before December 10, 2014. Signed by Judge John W Sedwick on 11/25/14. (LAD) (Entered: 11/26/2014)
145 RESPONSE in Opposition re: 140 MOTION to Vacate 139 Order on Motion for Miscellaneous Relief and to Modify Preliminary Injunction filed by Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 12/04/2014)
146 REPLY to Response to Motion re: 140 MOTION to Vacate 139 Order on Motion for Miscellaneous Relief and to Modify Preliminary Injunction filed by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Renn, Peter) (Entered: 12/09/2014)
147 ORDER DENYING 140 Motion to Vacate the order at docket 139. (JWS) (Entered: 12/10/2014)

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 20 of 21

01/12/2015 01/13/2015 01/27/2015 01/27/2015 01/27/2015 01/27/2015 01/27/2015 02/13/2015 02/13/2015 02/21/2015
02/21/2015 03/03/2015 03/06/2015

148 ORDER Pursuant to the court's order at docket 139 , the Clerk of Court will please close this case. Signed by Judge John W Sedwick on 1/12/2015. (KMG) (Entered: 01/12/2015)
149 CLERK'S JUDGMENT − IT IS ORDERED AND ADJUDGED that pursuant to the Court's order filed November 6, 2014, the preliminary injunction is dissolved and this case is now closed. (KMG) (Entered: 01/13/2015)
150 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Text of Proposed Order)(Borelli, Tara) (Entered: 01/27/2015)
151 DECLARATION of Tara L. Borelli re: 150 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibits A−G)(Borelli, Tara) (Entered: 01/27/2015)
152 DECLARATION of Daniel C. Barr re: 150 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibits A−B)(Borelli, Tara) (Entered: 01/27/2015)
153 DECLARATION of Mark I. Harrison re: 150 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of by Plaintiffs Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit A)(Borelli, Tara) (Entered: 01/27/2015)
154 MOTION Set Schedule for Notice to Class Members re: 150 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Borelli, Tara) (Entered: 01/27/2015)
155 RESPONSE in Opposition re: 150 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of filed by Janice K Brewer, Brian McNeil. (Attachments: # 1 Exhibit Exhibit A)(Grube, Charles) (Entered: 02/13/2015)
156 RESPONSE in Opposition re: 154 MOTION Set Schedule for Notice to Class Members re: 150 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of filed by Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 02/13/2015)
157 REPLY to Response to Motion re: 154 MOTION Set Schedule for Notice to Class Members re: 150 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of filed by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Attachments: # 1 Text of Proposed Order)(Borelli, Tara) (Entered: 02/21/2015)
158 REPLY to Response to Motion re: 150 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of filed by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger. (Borelli, Tara) (Entered: 02/21/2015)
159 NOTICE re: of Supplemental Authority by Joseph R Diaz, Deanna Pfleger, Stephen Russell, Beverly Seckinger re: 150 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of . (Attachments: # 1 Exhibit A − Order of the Ninth Circuit)(Borelli, Tara) (Entered: 03/03/2015)
160 ORDER that within seven days of this order, Plaintiffs shall transmit to Defendants notice of Plaintiffs' motion for attorneys' fees and costs (the "Notice") in envelopes with postage prepaid. The Notice will be in substantially the same form as the letter attached as Exhibit A to Plaintiffs' Motion, but Plaintiffs may make corrections as needed for accuracy; IT IS FURTHER ORDERED that within seven days of receipt of the Notices from Plaintiffs, Defendants must affix address labels and send them by U.S. mail to all State of Arizona employees who received family health coverage for a same−sex domestic partner or domestic partner's child(ren) in 2014; and FURTHER ORDERED that class members shall have 45 days after the date of the Notice to file any objections to Plaintiffs' Motion with the Court. Signed by Judge John W Sedwick on 3/5/2015.(KMG) (Entered: 03/06/2015)

Case: 2:09-cv-2402 As of: 12/06/2018 06:54 PM MST 21 of 21

04/02/2015 04/27/2015
05/01/2015 06/05/2015

161 NOTICE of Attorney Withdrawal of Kirstin T. Eidenbach filed by Kirstin T Eidenbach. (Eidenbach, Kirstin) (Entered: 04/02/2015)
162 ORDER [JUDGE SEDWICK STATUS REPORT ORDER. Counsel for defendants will please file a report within 7 days advising the court of the date when the notices required by the order at docket 160 were mailed. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (JWS) (Entered: 04/27/2015)
163 STATUS REPORT by Janice K Brewer, Brian McNeil. (Grube, Charles) (Entered: 05/01/2015)
164 ORDER AND OPINION granting 150 Plaintiffs' Motion for Attorney Fees. Plaintiffs shall be awarded attorneys' fees in the amount of $305,049.95 and costs in the amount of $1,936.67. Signed by Judge John W Sedwick on 6/5/15.(KGM) (Entered: 06/05/2015)

 
 No. 12-23
IN THE
Supreme Court of the United States
_______________________
JANICE K. BREWER, in her official capacity as Governor of the State of Arizona; SCOTT SMITH, in his
official capacity as Director of the Arizona Department of Administration; KATHY PECKARDT, in her official capacity as Assistant Director of Human
Resources for the Arizona Department of Administration, PETITIONERS, v.
JOSEPH R. DIAZ; KEITH B. HUMPHREY; BEVERLY SECKINGER; STEPHEN RUSSELL; DEANNA PFLEGER; CARRIE SPERLING; LESLIE KEMP; COREY SEEMILLER,
RESPONDENTS.
_____________________________
On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
_____________________________
BRIEF OF RESPONDENTS IN OPPOSITION

DANIEL C. BARR KIRSTIN T. EIDENBACH PERKINS COIE LLP
2901 N. Central Ave. Ste. 2000
Phoenix, AZ 85012 (602) 351-8000

TARA L. BORELLI Counsel of Record
JON W. DAVIDSON
SUSAN L. SOMMER LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010
(213) 382-7600 tborelli@lambdalegal.org

Attorneys for Respondents

i
QUESTION PRESENTED
Whether, in the absence of any conflict among the federal circuits or state courts of last resort, this Court should review an interim order arising from an interlocutory appeal of a preliminary injunction, which merely preserves the status quo pending the district court’s final decision on the merits by restraining a single state from dismantling existing domestic partner health coverage for a small number of lesbian and gay state employees.

ii
PARTIES TO THE PROCEEDING
The Petition for Writ of Certiorari (the “Petition” or “Pet.”) lists all parties to this proceeding. Pet. ii.
Petitioners Arizona Governor Janice K. Brewer, Director of Arizona Department of Administration Scott Smith, and Assistant Director of Human Resources for the Arizona Department of Administration Kathy Peckardt, who are all parties in their official capacities only (collectively, “Defendants”) mistakenly describe Judith McDaniel, a Plaintiff-Appellee below, as no longer employed by the State of Arizona (the “State”). Ms. McDaniel remains a State employee, but her claims became moot after she obtained an additional job that afforded health care coverage to her domestic partner. District Court Docket (“Dist. Ct. Dkt.”) No. 54. Ms. McDaniel was dismissed without prejudice in the District Court, id. at No. 55, but remained listed in the caption for all Ninth Circuit Court of Appeals proceedings because Defendants noticed their appeal before the District Court entered its order dismissing Ms. McDaniel as a plaintiff. Id. at No. 49.
In addition, Respondent Leslie Kemp’s claims recently become moot after she separated from her former domestic partner.

iii
Thus, the only Respondents who currently have an interest in the outcome of these proceedings are Joseph R. Diaz, Keith B. Humphrey, Beverly Seckinger, Stephen Russell, Deanna Pfleger, Carrie Sperling, and Corey Seemiller (collectively, “State Employees”).

iv
TABLE OF CONTENTS
QUESTION PRESENTED ....................................... i
PARTIES TO THE PROCEEDING ....................... ii
TABLE OF CONTENTS ..........................................iv
TABLE OF AUTHORITIES....................................vi
INTRODUCTION ......................................................1
STATEMENT OF THE CASE .................................3
REASONS FOR DENYING THE PETITION .......8
I. Review Should Not Be Granted To Consider The Propriety Of The Circuit Court’s Affirmance Of The District Court’s Preliminary Injunction, Which Simply Maintains The Status Quo Pending A Determination On The Merits, Particularly Given The Specific Circumstances Involved Here......................................................................8
II. The Court of Appeals’ Decision Neither Conflicts With Any Decision Of Another Federal Circuit Or State Court Of Last Resort Nor Raises An Important Federal Question Requiring Review At This Time........10
III. The Court of Appeals Properly Applied This Court’s Governing Precedent To Conclude That State Employees Demonstrated A Likelihood Of Success On The Merits .............. 14

v
IV. Exaggerated Concerns Raised By Defendants About Issues Not Decided Below Are Not Grounds For Review............................21
CONCLUSION .........................................................23

vi
TABLE OF AUTHORITIES
Cases
Bailey v. City of Austin, 972 S.W.2d 180 (Tex. App. 1998) ..........................11
Baker v. Nelson, 409 U.S. 810 (1972) ................................................22
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) ................................................16
Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010) ...........................16
Dragovich v. U.S. Dep’t of Treasury, 2012 U.S. Dist. LEXIS 72745 (N.D. Cal. May 24, 2012) .......................................................................12
Dragovich v. U.S. Dep’t of Treasury, No. 12-16461 (9th Cir. June 26, 2012) ..................12
Eisenstadt v. Baird, 405 U.S. 438 (1972) ................................................19
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012)..............12, 13
Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388, 12-15409 (9th Cir. Feb. 24, 2012) ....................................12, 13
Guinn v. United States, 238 U.S. 347 (1915) ................................................16
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251 (1916) ..................................................8
Lawrence v. Texas, 539 U.S. 558 (2003) ................................................16

vii
Mandel v. Bradley, 432 U.S. 173 (1977) ................................................22
Matter of Langan v. State Farm Fire & Cas., 48 A.D.3d 76 (N.Y. App. Div. 2007).......................11
Mazurek v. Armstrong, 520 U.S. 968 (1997) ..................................................8
McCreary County v. ACLU, 545 U.S. 844 (2005) ..................................................9
Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979) .....................................16, 17-18
Phillips v. Wis. Pers. Comm’n, 482 N.W.2d 121 (Wis. Ct. App. 1992)....................11
Plyler v. Doe, 457 U.S. 202 (1982) ................................................20
Reed v. Reed, 404 U.S. 71 (1971)..................................................19
Rice v. Cayetano, 528 U.S. 495 (2000) ................................................16
Ross v. Denver Dep’t of Health & Hosps., 883 P.2d 516 (Colo. App. 1994)........................10, 11
Rutgers Council of AAUP Chapters v. Rutgers State Univ., 689 A.2d 828 (N.J. Super. Ct. App. Div. 1997).......................................................11
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ..........................................14, 15
U.S. Office of Pers. Mgmt. v. Golinski, No. 12-16 (U.S. July 3, 2012)...........................12, 13
Va. Military Inst. v. United States, 508 U.S 946 (1993)...................................................8

viii
Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252 (1977) .....................................18
Washington v. Davis, 426 U.S. 229 (1976) ................................................17
Statutes Arizona Const. art. XXX, § 1 .......................................4 Arizona Rev. Stat. § 25-125(A)....................................4 Arizona Rev. Stat. § 38-651.........................................4 Arizona Rev. Stat. § 38-651(O).......................... passim Other Authorities Arizona’s Executive Order No. 2003-22....................19 Bureau of Labor Statistics, Employee Benefits in
the United States – March 2011, Table 8 (July 26, 2011), available at http://www.bls.gov/ ncs/ebs/ sp/ebnr0017.txt .....................................................21 E. Gressman, K. Geller, S. Shapiro, T. Bishop & E. Hartnett, Supreme Court Practice (9th Ed. 2008) .................................................................... 8-9 Senate Concurrent Resolution 1042 (2008) available at http://www.azleg.gov//Format Document.asp?inDoc=/legtext/48leg/2r/bills/scr 1042h.htm&Session_ID=86 ................................... 17 Sup. Ct. R. 10 ........................................... 10, 11, 20, 21

1
INTRODUCTION
None of the extraordinary circumstances described in Supreme Court Rule 10 as grounds for granting review on a writ of certiorari are presented by this case. To the contrary, Defendants seek interlocutory review of a unanimous Circuit Court decision, denied en banc consideration, that simply affirmed the District Court’s grant of a preliminary injunction based on a likelihood of success on one of several claims and the balance of harms shown. The preliminary injunction preserves the status quo at this initial juncture of the case by restraining Defendants from eliminating existing family health coverage for domestic partners of lesbian and gay Arizona state employees “pending trial in this action or further order of the” District Court. Appendix to Petition for Writ of Certiorari (“Pet. App.”) 56a.
This case was filed in response to circumstances making it quite unusual and even more unworthy of this Court’s review at this time. The State had provided family health coverage for both different-sex and same-sex domestic partners of State employees, but then dismantled that option, leaving marriage as the only way to access coverage for a partner. This step allowed heterosexual employees to marry and obtain the coverage, while making it impossible solely for lesbian and gay State employees to do so. Moreover, the State took this step after having issued a report that the prior system was affordable and functioning smoothly.
Furthermore, Defendants appealed the District Court’s preliminary injunction and now seek Supreme Court review even before the parties have

2
conducted any discovery or Defendants have introduced any relevant evidence supporting their asserted defenses. Indeed, Defendants do not even try to show this Court the actual cost of maintaining domestic partner coverage while the case proceeds for the small number of lesbian and gay State employees involved.
There is no division among the federal circuits on the question of whether a state can deprive only its lesbian and gay employees of any path to obtain employer-provided health insurance coverage for their partners — let alone whether the state can be preliminarily enjoined from doing so pending the outcome of a challenge in district court — after having afforded the coverage under a system the state itself had determined was working and affordable. In light of the fact-bound nature of this case and its preliminary stage, it is not surprising that no other Court of Appeals or any state court of last resort has spoken on this or even a related question.
Defendants labor mightily to give the impression not only that this case already has been fully litigated on its merits, but also that it is about a host of issues not actually raised in the complaint or decided by the courts below in considering whether preliminary injunctive relief was warranted. This case does not seek to allow same-sex couples to marry, and the courts below did not consider that issue. Instead, the preliminary injunction ruling involved a narrow determination that the State is unlikely to be found to have an adequate justification to eliminate family health coverage for its lesbian and gay

3
employees that remains available to their heterosexual co-workers — as well as that the balance of hardships and public interest weigh in favor of maintaining the status quo during the proceeding. The State Employees’ narrowly-tailored claim, which has yet to be fully developed below, is not ripe for this Court’s review. The Petition accordingly should be denied.
STATEMENT OF THE CASE
As part of its employee compensation system, the State provides its qualifying employees access to a group health plan as well as family health coverage for their eligible dependents. Pet. App. 17a-18a. In April 2008, the State amended its administrative code to provide access to the health plan for an employee’s same-sex or different-sex domestic partner as well as the domestic partner’s qualifying children. Id. at 3a. The administrative code required an employee to demonstrate a high degree of financial inter-dependence with his or her committed life partner to qualify the partner for family health coverage. See id. at 18a-20a (quoting eligibility criteria, including at least one year of shared permanent residence and at least three indicia of financial interdependence such as a joint mortgage, joint debt liabilities, and assumption of financial responsibility for each other’s welfare). The State Employees, each of whom is lesbian or gay, enrolled a same-sex domestic partner, or domestic partner’s child, in the State’s group employee health plan in 2008 or 2009. Id. at 4a-5a.
In August 2009, the Arizona legislature enacted, and Petitioner Brewer signed, legislation adding to

4
Arizona Revised Statute § 38-651 a new provision, codified as § 38-651(O) (“Section O”). Section O provides that only a “spouse” can qualify as an employee’s dependent for family health coverage. Pet. App. 21a. Because the State prohibits same-sex couples from marrying, Ariz. Rev. Stat. § 25-125(A); Ariz. Const. art. XXX, § 1; Pet. 3, Section O bars State Employees by operation of law from qualifying a same-sex life partner for family health coverage. Heterosexual employees, on the other hand, can continue to qualify a life partner for coverage through marriage. Ariz. Rev. Stat. § 38-651(O).
State Employees commenced suit and filed an amended complaint on January 7, 2010, seeking declaratory and injunctive relief from Section O as a violation of federal equal protection and due process guarantees. Pet. App. 22a. State Employees do not challenge the portion of Section O requiring that heterosexual couples marry to receive family health coverage. They have contested only the portion of the law that creates an absolute bar making it impossible for lesbian and gay employees to obtain the same compensation available to their heterosexual coworkers — compensation that the State previously made available to its lesbian and gay employees as well. Ninth Circuit Docket (“Ninth Cir. Dkt.”) No. 18 at 4 n.3. State Employees’ amended complaint alleges, and Defendants have never disputed, that State Employees are highly skilled, with job duties equivalent to those of their heterosexual colleagues. Pet. App. 4a.
Defendants moved to dismiss the case. State Employees moved for a preliminary injunction to

5
maintain their family health coverage, which was otherwise scheduled to terminate on December 31, 2010, and thus preserve the status quo while the case proceeds. Pet. App. 17a, 22a. State Employees sought preliminary injunctive relief on multiple grounds, including a due process claim and several distinct equal protection theories. Dist. Ct. Dkt. No. 31 at 8-13.
Defendants opposed the preliminary injunction by introducing a few figures about the cost of domestic partner coverage for both different-sex and same-sex couples, even though the relief sought in this case involves coverage only for same-sex couples, who alone have no access to coverage for a partner. Pet. App. 48a-49a. Defendants repeat the same misleading statistic in their Petition, noting generally that the cost of domestic partner coverage was $4 million in 2008 and $5.5 million in 2009. Pet. 4, 14. Defendants fail expressly to acknowledge that those costs were chiefly comprised of health care claims by unmarried different-sex couples, irrelevant here given that the preliminary injunction maintains coverage pending resolution in the District Court only for those State employees in same-sex relationships. Pet. App. 56a.
On reply, State Employees introduced expert testimony from an economist, Dr. M.V. Lee Badgett, to rebut Defendants’ contentions. Pet. App. 48a; Dist. Ct. Dkt. No. 42. Because no party had yet conducted discovery, and Defendants’ figures did not separately account for same-sex domestic partners, Dr. Badgett generated estimates from the available data. Id. at 4-5. Dr. Badgett testified that same-sex

6
couples were likely a small fraction of the domestic partner participants in the health plan and the costs of insuring them were likely a negligible 0.06% to 0.27% of the State’s total expenditures on employee health coverage. Pet. App. 48a.
State Employees also submitted in their reply a publicly available report issued by the State for the 2008-09 benefits plan year. Id. at 47a-48a. Even including the far larger segment of different-sex domestic partners beyond the small fraction of samesex partners participating in coverage in that period, the State reported that the plan year “demonstrated a balance of expenses and premiums that allowed . . . comprehensive and affordable insurance coverage” for its employees, and that allowed the State to “effectively control[] . . . health care costs. . . .” Id. at 47a.
Defendants introduced no contrary evidence; nor did they contest or rebut Dr. Badgett’s expert testimony. Id. at 48a-49a. Defendants now concede that only a “small fraction” of the approximately 800 State employees with a qualifying domestic partner received coverage for a partner of the same sex. Pet. 4, 14, 24.
The District Court heard argument on both Defendants’ motion to dismiss and State Employees’ motion for a preliminary injunction. The court dismissed State Employees’ due process claim, but denied the motion to dismiss as to State Employees’ equal protection theories. Pet. App. 55a-56a. The District Court preliminarily enjoined enforcement of Section O during pendency of the case before it, Pet. App. 56a, requiring Defendants to maintain the

7
existing family health insurance coverage of what Defendants concede is an “admittedly limited group” of lesbian and gay State employees, Pet. 24. The District Court based its preliminary injunction ruling on its prediction of a likelihood of success on the merits, once the case is fully litigated, on one of the equal protection theories advanced by State Employees, i.e., sexual orientation discrimination that cannot even be justified under the rational basis test. Pet. App. 27a-38a, 46a-49a. The District Court further found, based on facts specific to the State Employees, that in the absence of a preliminary injunction they will likely suffer irreparable harms, including potential irreversible health consequences for their domestic partners. Id. at 49a-51a. The court found that continuing coverage for this small group of employees would have minimal impact on the State, which had not even “provided any evidence showing the costs” of providing such coverage. Id. at 53a. The court concluded that the balance of equities and interests of the public weighed in favor of granting the preliminary injunction while the case proceeds. Id. at 54a-55a.
Defendants noticed an interlocutory appeal of the preliminary injunction to the Ninth Circuit Court of Appeals on August 16, 2010. Dist. Ct. Dkt. No. 49. The District Court stayed all proceedings on October 13, 2010. Id. at No. 55. The Court of Appeals unanimously upheld the District Court’s order on September 6, 2011. Pet. App. 2a. The Court of Appeals reviewed the District Court’s “careful order,” finding that the lower court “applied the appropriate standards for the grant of preliminary injunctive relief.” Id. at 7a-8a.

8
Defendants sought en banc review, and the Court of Appeals denied that request on April 3, 2012, with two judges dissenting. Id. at 57a-58a. The Petition to this Court followed. On June 18, 2012, the District Court renewed its stay pending the disposition of this Petition. Dist. Ct. Dkt. No. 66.
REASONS FOR DENYING THE PETITION
I. Review Should Not Be Granted To Consider The Propriety Of The Circuit Court’s Affirmance Of The District Court’s Preliminary Injunction, Which Simply Maintains The Status Quo Pending A Determination On The Merits, Particularly Given The Specific Circumstances Involved Here.
Review of interlocutory orders deviates from this Court’s general practice and is especially unwarranted in this case. This Court “generally await(s) final judgment in the lower courts before exercising . . . certiorari jurisdiction,” Va. Military Inst. v. United States, 508 U.S 946, 946 (1993) (explaining denial of certiorari), and reviews decisions granting preliminary injunctions only in situations where the grant was “clearly erroneous.” Mazurek v. Armstrong, 520 U.S. 968, 975 (1997) (per curiam). See also Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916) (that consideration is sought of an order sustaining a preliminary injunction “alone furnishe[s] sufficient ground for the denial” of review). Review of interlocutory orders thus should be exercised only if declining review will “have immediate consequences for the petitioner.” E. Gressman, K. Geller, S.

9
Shapiro, T. Bishop & E. Hartnett, Supreme Court Practice § 4.18 at 281 (9th Ed. 2008) (citing cases). This presumption against review makes particular sense where, as here, (1) the interlocutory order merely maintains the status quo, i.e., continued provision of existing health benefits to a small set of domestic partners of State lesbian and gay employees, and (2) a legal theory different from the premise for preliminary injunctive relief could ultimately be dispositive when the final merits are reached.
1. Defendants have not met the high standard required for review of an interlocutory order. Preliminary injunction rulings are exactly that — preliminary — and rest on, among other things, a fact-sensitive inquiry that balances the parties’ respective harms. This is precisely why such orders are reviewed only for an abuse of discretion. McCreary County v. ACLU, 545 U.S. 844, 867 (2005). Though Defendants work hard to inject purported merits issues into their petition, at most only an abuse of discretion examination would apply to this interlocutory appeal. While such review might be justifiable in some extraordinary circumstances, none exist here. Defendants fail to show why a preliminary order merely maintaining for a small number of employees benefits already provided by the State demands this Court’s review pending the District Court’s resolution of the case.
2. In addition, the District Court granted a preliminary injunction based on only one of the several legal theories offered by the State Employees, which also include a sexual orientation

10
discrimination claim under heightened constitutional scrutiny and a sex discrimination theory, both of which remain viable before the District Court. See Dist. Ct. Dkt. No. 31 at 8-13. The theory accepted by the District Court for purposes of deciding the preliminary injunction may never be presented on a subsequent appeal if the case is resolved on a different ground. In that event, Defendants’ contentions in the petition about the reasoning of the courts below would be moot. This is the very epitome of when review of a preliminary injunction is ill-advised.
II. The Court of Appeals’ Decision Neither Conflicts With Any Decision Of Another Federal Circuit Or State Court Of Last Resort Nor Raises An Important Federal Question Requiring Review At This Time.
Under Supreme Court Rule 10, a petition for certiorari may be appropriate when a federal court of appeals “has entered a decision in conflict with the decision of another United States court of appeals on the same important matter” or “has decided an important federal question in a way that conflicts with a decision by a state court of last resort.” Defendants do not cite even one federal court of appeals decision that actually conflicts with the decision below. See Pet. 9, 18, 21, 26 (claiming conflict only with state court decisions).
Moreover, none of the state court decisions cited by Defendants as supposedly in conflict with the decision of the court below comes from a state court of last resort. See Ross v. Denver Dep’t of Health & Hosps., 883 P.2d 516 (Colo. App. 1994) (mid-level

11
state appellate court decision); Rutgers Council of AAUP Chapters v. Rutgers State Univ., 689 A.2d 828 (N.J. Super. Ct. App. Div. 1997) (same); Matter of Langan v. State Farm Fire & Cas., 48 A.D.3d 76 (N.Y. App. Div. 2007) (same); Bailey v. City of Austin, 972 S.W.2d 180 (Tex. App. 1998) (same); Phillips v. Wis. Pers. Comm’n, 482 N.W.2d 121 (Wis. Ct. App. 1992) (same).
Furthermore, three of these decisions involved only state law, not federal, claims. Rutgers Council, 689 A.2d at 829; Bailey, 972 S.W.2d at 184, n.3; Phillips, 482 N.W.2d at 123-24. The cursory consideration of federal law in the remaining two rested on significantly different facts. Ross, 883 P.2d at 518, 521-22 (without discussion of any federal authorities, rejecting claim for benefits that, unlike here, were not previously provided to lesbian and gay employees under a functioning, cost-effective system); Matter of Langan, 48 A.D.3d at 79-81 (declining to require, for the first time, that workers’ compensation death benefits be afforded to an individual who entered a civil union in another state, based on reasoning of prior state cases).
Even were the rulings cited in the Petition decisions of state courts of last resort with facts analogous to this case, the supposed conflict asserted by Defendants does not raise important federal questions requiring review at this time. S. Ct. R. 10. As noted above, review could always be had once a final judgment is issued rather than in this preliminary posture. Likewise, any supposed conflict the Court of Appeals’ interlocutory decision allegedly creates with these few lower state cases may well be

12
short-lived, given that this action ultimately could be resolved on one of the other grounds advanced by State Employees.
Moreover, should this case ultimately be decided on the same legal grounds considered in the District Court’s preliminary injunction ruling, any consideration by this Court would be more appropriate after discovery and full presentation of evidence and arguments to the District Court, with review by the Circuit Court. In the current posture, the Court would merely be considering whether the lower courts erred in concluding that State Employees had shown a likelihood of success on the merits and that the public interest and balance of equities weighed in favor of granting preliminary injunctive relief. See Pet. App. 8a.
Defendants also illogically suggest that review should be granted in this case to address opinions of lower courts, which briefly cite the decision below, in challenges to the federal Defense of Marriage Act, and to offer guidance for future cases. Pet. 27-28. In fact, the two decisions cited by Defendants are both currently on appeal. See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012), appeal docketed, Nos. 12-15388, 12-15409 (9th Cir. Feb. 24, 2012), petition for cert. before judgment filed by U.S. Solicitor General, No. 12-16 (U.S. July 3, 2012) (hereafter “Golinski, petition for cert., No. 1216”); Dragovich v. U.S. Dep’t of Treasury, 2012 U.S. Dist. LEXIS 72745 (N.D. Cal. May 24, 2012), appeal docketed, No. 12-16461 (9th Cir. June 26, 2012) (both addressing whether the federal government must recognize state marriages and other formalized state

13
statuses available to same-sex couples). Whether the principles of law applied in those cases were correct can be determined in those appeals. Likewise, how other courts may cite or apply aspects of the decision below would best be considered by review of final decisions in those cases rather than through interlocutory review of whether a preliminary injunction was appropriately granted in this one.
In fact, Golinski did not even rely on any aspect of the Court of Appeals’ decision below about which Defendants object. Golinski merely cited a reference in the decision to a more “searching” form of rational basis review, 824 F. Supp. 2d at 996, but the Court of Appeals below expressly concluded that the preliminary injunction could be affirmed without reaching whether any form of “heightened scrutiny might be required.” Pet. App. 7a. If this Court is to examine the level of judicial scrutiny due sexual orientation classifications, then Golinski itself, which exactingly analyzed the appropriate level of scrutiny based on a fully developed record with extensive expert testimony, 824 F. Supp. 2d at 985-90, is a far better vehicle than the ruling below. Indeed, the United States Solicitor General has taken the step of seeking certiorari in Golinski prior to judgment because that case presents such a strong vehicle for this Court’s consideration of the question. See Golinski, petition for cert., No. 12-16.

14
III. The Court of Appeals Properly Applied This Court’s Governing Precedent To Conclude That State Employees Demonstrated A Likelihood Of Success On The Merits.
Defendants attempt to argue the merits of this case as though the merits had been reached and decided. Of course, all that has occurred below thus far is a preliminary injunction determination of a “likelihood” of success on the merits of one aspect of State Employees’ equal protection claim. In so ruling, the Court of Appeals properly applied this Court’s governing precedent with respect to: 1) the intentional discrimination that occurred here; 2) State Employees’ similarity to heterosexual employees for purposes relevant to the facts of this case; and 3) the appropriate standard of review.
1. Defendants wrongly argue that the courts below erred in concluding that Section O may be held to create an intentional classification along arbitrary and invidious lines. As the Court of Appeals noted, this case bears striking similarities to this Court’s decision in United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973), which reveals the flaw in Defendants’ argument that a “facially neutral” statute cannot be found to be intentionally discriminatory. Pet. App. 11a-12a. Moreno examined an amendment to the Food Stamp Act that redefined “household” to “limit the program’s eligible recipients to groups of related individuals,” so that households with unrelated individuals no longer qualified for food stamp benefits. Pet. App. 11a. As

15
the Court of Appeals observed, Moreno has direct parallels to the questions here.
First, both cases involve the amendment of an existing benefits program to restrict “benefits for a particular group perceived as unpopular.” Id. Second, both involve the use of a facially neutral term to target an unpopular group — in Section O, the term “spouse,” and in Moreno’s Food Stamp Act, the term “household.” Id. Third, the “practical operation” of the challenged law in each case was to exclude the disfavored group and only that group. Pet. App. 12a (quoting Moreno, 413 U.S. at 538).
The statute challenged in Moreno redefined the facially neutral term “household” to eliminate nonrelative households’ eligibility for food stamps, in the same way that Section O redefined a qualifying dependent as a “spouse” to eliminate same-sex couples’ eligibility for family health coverage. See 413 U.S. at 529. Moreno noted that the legislation “[i]n practical effect . . . creates two classes of persons for food stamp purposes.” Id. The Court of Appeals here similarly applied that reasoning to find that Section O creates two classes of employees for family health coverage: those who can qualify by marrying (heterosexuals), and those who cannot (lesbians and gay men). Pet. App. 12a (observing that Section O treats lesbian and gay State employees differently by making coverage available through a status they may not enter). In fact, the Court of Appeals noted that this case presents an even “more compelling scenario, since the plaintiffs in Moreno” could still receive food stamps by altering household arrangements, while all lesbian and gay State employees are strictly

16
barred from family health coverage “by operation of law.” Id.
The Court of Appeals’ examination of Section O’s intentional classification along invidious lines, modeled carefully after Moreno, is consistent with a long line of authority from this Court. In fact, this Court repeatedly has observed the fallacy of analogous arguments for camouflaging discriminatory classifications. See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”); Rice v. Cayetano, 528 U.S. 495, 514 (2000) (“[a]ncestry can be a proxy for race”). Accord Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979) (a rule “that is ostensibly neutral but is an obvious pretext for racial discrimination” is invalid); Guinn v. United States, 238 U.S. 347, 365 (1915) (Oklahoma’s facially neutral literacy test for voters, exempting all residents who could vote prior to the adoption of the Fifteenth Amendment, violated that amendment’s race discrimination prohibition).
This Court already has considered and discarded attempts to justify discrimination against lesbians and gay men by tying restrictions to their personal relationships, rather than their status. See Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990 (2010) (“Our decisions have declined to distinguish between status and conduct in this context.”), citing Lawrence v. Texas, 539 U.S. 558, 583 (2003) (O’Connor, J., concurring) (a law targeting an intimate same-sex relationship “target[s] . . . more than conduct,” and “is instead directed toward gay persons as a class”).

17

The Court of Appeals’ conclusion that, for

purposes of a preliminary injunction determination,

Section O should be understood as intentionally

discriminating against lesbian and gay State

employees was particularly easy to reach under the

unusual circumstances of this case. In 2008, the

State legislature referred to voters a proposed

constitutional amendment limiting marriage to

different-sex couples. See Senate Concurrent

Resolution 1042 (2008), available at http://www.

azleg.gov//FormatDocument.asp?inDoc=/legtext/48leg

/2r/bills/scr1042h.htm&Session_ID=86.

Voters

approved the amendment in the 2008 general

election, Pet. 3, and the legislature voted the

following year to restrict family health coverage to

committed couples who may marry, by enacting

Section O. Pet. 5.

The legislature’s conditioning of family health coverage on a status that just the year before it helped to bar same-sex couples from entering was not accidental or inadvertent but deliberate. And as this Court has made clear, intentional discrimination “may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one [group] than another.” Washington v. Davis, 426 U.S. 229, 242 (1976). Section O could not present a more striking example, where the legislature helped ensure that same-sex couples cannot marry, and then voted within a year to strip them of family coverage by limiting it to those who can marry. This case is thus entirely different from the veterans’ hiring preference challenged in Feeney, which did not foreclose women from that preference but merely had a disparate

18
impact on them. 442 U.S. at 280. In contrast, Section O forecloses all lesbian and gay state workers from family health coverage, while it remains available to all heterosexual workers.
Even the authorities on which Defendants rely approve this analysis. As Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), recognized, the “sensitive inquiry” required to determine discriminatory intent involves examining the enactment’s surrounding circumstances and, even with facially neutral legislation, the inquiry is “relatively easy” when a clear, otherwise “unexplainable” pattern emerges. Id. at 266. Some facially neutral laws create a pattern of exclusion so “stark” that it is appropriate to test whether the law is “unexplainable on grounds other” than the classification. Id. Section O is precisely such a law. Section O excludes same-sex couples with 100% precision, and allows 100% of heterosexual couples to qualify through marriage. As the Court of Appeal correctly found, this case is every bit as “stark” as the authorities collected in Arlington Heights.
2. Defendants’ argument that the Court of Appeals erred in finding lesbian and gay employees similarly situated to their heterosexual colleagues, Pet. 23, 25-26, fares no better. Defendants cite no federal authority even suggesting that the Court of Appeals’ analysis was incorrect. Of course no two groups are ever likely to be entirely identical in all respects; by that standard, almost every equality claim would fail. Instead, it is an abiding equal protection principle that groups must be similarly

19
situated for purposes relevant to the classification. See Eisenstadt v. Baird, 405 U.S. 438, 447 (1972) (equal protection denies states “the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute”) (emphasis added); Reed v. Reed, 404 U.S. 71, 76 (1971) (“A classification must . . . rest upon some ground of difference having a fair and substantial relation to the object of the legislation”) (internal quotation marks omitted).
This case involves a form of compensation the State provides its employees, and Defendants never have contested State Employees’ similarity to their heterosexual co-workers in all ways relevant to the workplace. In fact, Arizona’s Executive Order No. 2003-22 prohibits discrimination against the State’s lesbian and gay employees, acknowledging that no basis exists to treat them differently as employees. And as Defendants have left undisputed, State Employees rely on family coverage as an important part of their compensation for the same reasons that their married, heterosexual colleagues do — to help care for their family members and to avoid the stress of health emergencies that easily can lead to irreversible financial harm such as bankruptcy, or, tragically, to permanent health consequences for serious, untreated medical conditions. Excerpts of Record in the Court of Appeals, 170-72, 193-94.
In providing family coverage to lesbian and gay employees previously, the State itself recognized both that these employees have the same need as their co-

20
workers for such coverage, and that a simple administrative mechanism would allow them to demonstrate the financial interdependence that similarly situates them to their heterosexual colleagues. Defendants now point to other unrelated attributes tied to marriage, Pet. 25-26, but offer no explanation of their relevance to this form of workplace compensation. As the lower courts understood, a state cannot select a status that the state itself strictly prohibits for the minority, and rely on that as a fair measure of the minority’s difference.
3. Defendants also fail to show why their claim that the lower courts erred in application of the rational basis test demands review by this Court, and particularly at this time. This Court “rarely” grants review based merely on an arguable “misapplication of a properly stated rule of law.” S. Ct. R. 10. But, beyond that, the arguments of error ignore (1) the evidence that providing family coverage to domestic partners was neither administratively difficult nor costly, Pet. App. 34a, 47a-48; (2) the case law that such government interests cannot be pursued by treating a minority group adversely unless there is an independent justification for doing so, see, e.g., Plyler v. Doe, 457 U.S. 202, 228-29 (1982); Pet. App. 31a-35a; (3) the Court of Appeals’ cogent explanation that any interest in “promoting traditional marriage” is not furthered by eliminating health care coverage for the partners of lesbian and gay employees, whom the State does not allow to marry, Pet. App. 13a-14a; and (4) that this case is not over and a final judgment would be a better vehicle for review of such mixed questions of law and fact.

21
For all the reasons above, Defendants fail to demonstrate that the Court of Appeals’ decision was wrongly decided. They certainly fail to show that affirmance of a status-quo-preserving preliminary injunction — granted in light of largely uncontested facts showing a likelihood of success on the merits, the public interest, and the balance of harms — “so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power.” S. Ct. R. 10(a).
IV. Exaggerated Concerns Raised By Defendants About Issues Not Decided Below Are Not Grounds For Review.
Contrary to the wildly exaggerated claims of Defendants, the decision below was not “premised . . . on an indirect invalidation of Arizona’s statutory and constitutional provisions defining marriage as a union between a man and a woman,” Pet. 10, and did not “implicit[ly] hold[] that the State cannot constitutionally limit marital benefits to unions between a man and a woman.” Pet. 28. The preliminary injunction does nothing to change the fact that same-sex couples may not marry in the State, and the validity of that restriction was not decided or even discussed below.
Instead, the preliminary injunction addressed a form of employment compensation that many employers provide to workers who are not married, see Bureau of Labor Statistics, Employee Benefits in the United States – March 2011, Table 8 (July 26, 2011), available at http://www.bls.gov/ncs/ebs /sp/ebnr0017.txt (30% of all employers provide health

22
insurance benefits to same-sex domestic partners), just as the State did previously. Obtaining such coverage does not bestow a marriage status on those who receive it.
The question here is not whether marriage can be limited to different-sex couples, see Pet. 6 (conceding that State Employees do “not claim that Arizona’s laws defining marriage [a]re unconstitutional” in this case), but rather whether the State can eliminate health coverage it previously provided for employees’ partners and their children by conditioning such coverage on a status inaccessible to only lesbian and gay employees. Thus, cases like Baker v. Nelson, 409 U.S. 810 (1972) (mem.) (summary dismissal of appeal addressing whether same-sex couples had the right to marry under certain circumstances) are wholly inapposite. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (a summary dismissal binds lower courts based on “the specific challenges presented in the statement of jurisdiction”).
Defendants’ further claim that the Court of Appeals’ decision “directly” impacts and threatens other governmental entities’ decisions about family health coverage eligibility, Pet. 10, 20, also is untrue. The only direct impact of the preliminary injunction is to prevent Defendants from eliminating existing family health care coverage for the small number of lesbian and gay State employees in this one jurisdiction pending the District Court’s resolution of this case.
While another case may someday raise the kinds of questions about which Petitioner speculates — e.g., where a governmental employer has never previously

23
provided such coverage, Pet. 20, n.7, let alone selfreported that its existing plan worked well and was affordable, Pet. App. 47a-48a — such questions are best resolved in a case that actually and finally presents them.
CONCLUSION For the foregoing reasons, Respondent State Employees respectfully request that the Court deny the Petition for Writ of Certiorari.

Respectfully submitted,

DANIEL C. BARR KIRSTIN T. EIDENBACH PERKINS COIE LLP 2901 N. Central Avenue Suite 2000 Phoenix, AZ 85012 (602) 351-8000 dbarr@perkinscoie.com keidenbach@
perkinscoie.com

TARA L. BORELLI Counsel of Record
JON W. DAVIDSON SUSAN L. SOMMER LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. 3325 Wilshire Boulevard Suite 1300 Los Angeles, CA 90010 (213) 382-7600 tborelli@lambdalegal.org jdavidson@lambdalegal.org ssommer@lambdalegal.org

Attorneys for Respondents

August 20, 2012

 
 No. 12-23 ================================================================
In The
Supreme Court of the United States
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JANICE K. BREWER, in her official capacity as Governor of the State of Arizona; SCOTT SMITH, in his official capacity as Director of the Arizona Department of Administration; KATHY PECKARDT, in her official capacity as Assistant Director of Human Resources for the Arizona Department of Administration,
Petitioners, vs.
JOSEPH R. DIAZ; KEITH B. HUMPHREY; BEVERLY SECKINGER; STEPHEN RUSSELL;
DEANNA PFLEGER; CARRIE SPERLING; LESLIE KEMP; COREY SEEMILLER,
Respondents.
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On Petition For A Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit
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PETITIONERS’ REPLY BRIEF
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THOMAS C. HORNE Attorney General of Arizona
PAULA S. BICKETT Chief Counsel, Civil Appeals Counsel of Record KATHLEEN P. SWEENEY Assistant Attorney General CHARLES A. GRUBE Senior Agency Counsel 1275 W. Washington Phoenix, Arizona 85007-2926 (602) 542-3333 (602) 542-8308 (fax) paula.bickett@azag.gov
Counsel for Petitioners
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COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS Page
TABLE OF CONTENTS ...................................... i
TABLE OF AUTHORITIES ................................. ii
INTRODUCTION ................................................ 1
ARGUMENT ........................................................ 2
I. The Court Should Review the Court of Appeals’ Decision Because It Decided an Important Legal Question that Controls the Outcome of This Case and Is Binding Precedent in the Ninth Circuit.................. 2
II. The Court of Appeals’ Decision Is Contrary to This Court’s Precedent .......................... 6
III. The Court of Appeals’ Decision Undermines All Laws Predicated on the Traditional Definition of Marriage .................... 12
CONCLUSION..................................................... 14

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TABLE OF AUTHORITIES Page
CASES Braen v. Pfeifer Transp. Co., 361 U.S. 129
(1959) .........................................................................6 Califano v. Boles, 443 U.S. 282 (1979).......................11 Dragovich v. United States Department of
Treasury, ___ F. Supp. 2d ___, 2012 WL 1909603 (May 24, 2012)..........................................13 F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) .......................................................................11 Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) ..........................................................................4 Johnson v. Robison, 415 U.S. 361 (1974)...................12 Lyng v. UAW, 485 U.S. 360 (1988) ...............................8 Mazurek v. Armstrong, 520 U.S. 968 (1997)........3, 7, 9 Pers. Adm’r v. Feeney, 442 U.S. 256 (1979) .................9 United States v. Arizona, 132 S. Ct. 2492 (2012) ........3 United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973).................................7, 8 U.S.R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) .........11 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 229 (1977) ........................................9
STATUTE A.R.S. § 38-651(O) .............................................. passim

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TABLE OF AUTHORITIES – Continued Page
OTHER AUTHORITIES Ariz. Admin. Code § R2-5-101 ......................................4 Benjamin K. Probber, Comment,
Diaz v. Brewer and the Equal Protection Clause: A Roadmap for the Retention of Same-Sex Public Employment Benefits, 14 U. Pa. J. Const. L. 1351 (2012)............................6 Robert L. Stern et al., Supreme Court Practice § 4.5 (8th ed. 2002)....................................................6
RULE Sup. Ct. R. 10(c) ............................................................1

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INTRODUCTION
The court of appeals’ published decision in this case held that Arizona Revised Statutes (A.R.S.) Section 38-651(O) (Section O), which extends healthcare benefits to state employees’ spouses and dependents but does not extend such benefits to state employees’ domestic partners, violated the Equal Protection Clause. The court of appeals reached this conclusion even though there was no evidence that the Legislature intended to discriminate based on sexual orientation and even though Section O furthers the State’s interests in promoting marriage while also eliminating the additional expense and administrative burdens involved in providing healthcare benefits to state employees’ domestic partners.
The Court should reject Respondents’ argument that this is not an appropriate case for review. Although the court of appeals affirmed a preliminary rather than a permanent injunction, it erroneously decided an important federal legal question and its decision will govern this case on remand as well as federal-court challenges to the laws of States within the Ninth Circuit that condition some rights and benefits on marital status. This Court’s review is appropriate and necessary because the court of appeals “has decided an important federal question in a way that conflicts with relevant decisions of this Court.” Supreme Court Rule 10(c). Further, the court of appeals’ conclusion that a statute that favors partners in a traditional marriage over partners in nonmarital relationships serves no conceivable rational

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purpose is contrary to this Court’s precedent, as well as to federal and state appellate decisions, that hold that laws promoting traditional marriage do not violate the Federal Constitution. Unless this Court grants review, this aberrant and fundamentally wrong decision will not only ensure that Section O’s enforcement is permanently enjoined but will also threaten the validity of countless other laws that favor traditional marriage.
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ARGUMENT
I. The Court Should Review the Court of Appeals’ Decision Because It Decided an Important Legal Question that Controls the Outcome of This Case and Is Binding Precedent in the Ninth Circuit.
Respondents argue that the Court should not grant review because the court of appeals affirmed a preliminary injunction that could ultimately be decided on a different legal theory with different facts. Opposition at 8-10. Respondents mischaracterize both the nature of the injunctive relief granted and the effect of the court of appeals’ decision on the remand proceedings. This Court’s review is necessary because the court of appeals has decided an important, dispositive legal issue that will govern remand and create binding precedent that will affect the laws of the States in the Ninth Circuit.

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In Mazurek v. Armstrong, 520 U.S. 968, 975-76 (1997) (per curiam), the Court explained why it was reversing a lower-court decision before final judgment was entered:
First, . . . the Court of Appeals’ decision is clearly erroneous under our precedents. Second, the lower court’s judgment has produced immediate consequences for Montana – in the form of a Rule 62(c) injunction against implementation of its law pending the District Court’s resolution of respondents’ motion for a preliminary injunction – and has created a real threat of such consequences for the six other States in the Ninth Circuit that have physician-only requirements.
(Footnote omitted.)
The reasons for granting review here are just as compelling as those that the Court articulated in Mazurek. The court of appeals’ decision here is clearly erroneous under this Court’s precedent.1 See § II infra. And it has produced immediate consequences for Arizona and other States in the Ninth Circuit.
1 Contrary to Respondents’ assertion, Opposition at 8, this Court does not require a petitioner to demonstrate that the lower court’s decision is clearly erroneous before it will grant review of a preliminary injunction. See, e.g., United States v. Arizona, 132 S. Ct. 2492, 2503-07 (2012) (granting review of Ninth Circuit decision that affirmed the district court’s preliminary injunction of the enforcement of four provisions of Arizona law and rather than finding the lower court’s decision clearly erroneous, affirming the preliminary injunction as to three of the four provisions).

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The district court entered an Order that enjoins Defendants from enforcing Section O “to eliminate family insurance eligibility for lesbian and gay State employees, and their domestic partners and domestic partners’ children who satisfy the criteria set forth in Ariz. Admin. Code § R2-5-101” and orders the Defendants to “make available family health insurance coverage for lesbian and gay State employees . . . who satisfy the relevant eligibility criteria set forth in Ariz. Admin. Code § R2-5-101.” (Pet. App. 56a.) The district court’s Order thus enjoins enforcement of a state law. The court of appeals then affirmed the continuing consequences that the preliminary injunction imposes on Arizona.
The court of appeals’ legal determination that Section O discriminates against gay and lesbian employees and does not meet the rational-basis test will govern the proceedings in this case on remand. See Gonzalez v. Arizona, 677 F.3d 383, 390 n.4 (9th Cir. 2012) (en banc) (stating that all published opinions – including those determining a legal issue at the preliminary-injunction stage, as occurred in that case – are “law of the circuit,” that is, they “constitute[ ] binding authority which must be followed unless and until overruled by a body competent to do so”). The court of appeals’ decision also effectively invalidates the laws of five States within the Ninth Circuit that condition at least some rights and benefits on marital status or permit local governments to do so. See States’ Brief as Amici Curiae in Support of the Petition at 3.

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Respondents do not contend that the court of appeals did not determine a legal issue but they argue that the case could ultimately be decided on a different legal theory. Opposition at 9-10. This is pure sophistry. The district court granted Respondents all the injunctive relief that they requested in the Complaint. Compare Appellants’ Excerpt of Record filed in the Ninth Circuit below at 297-98 with Pet. App. 56a. Although the district court noted that “[s]ome form of heightened scrutiny might apply to plaintiffs’ claims,” it did not reach that issue because it found that Respondents demonstrated that there was no conceivable rational basis that might support Section O. Pet. App. 29a-38a. The court of appeals also determined that it did not “need to decide whether heightened scrutiny might be required” because it found that the district court correctly concluded that Section O did not rationally further any of the State’s asserted justifications or any other conceivable interest. Pet. App. 7a-14a. Because the court of appeals affirmed the district court’s conclusion that Section O violated the Equal Protection Clause under the rationalbasis test, there is no reason for the district court to reach Respondents’ theories that classifications based on sexual orientation are entitled to heightened constitutional scrutiny and that Section O discriminates based on sex.

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II. The Court of Appeals’ Decision Is Contrary to This Court’s Precedent.
Respondents wrongly argue that the court of appeals’ decision is consistent with this Court’s precedent. Opposition at 14-21. Because the court of appeals misconstrued this Court’s opinions and its decision contravenes this Court’s authorities, the Court should grant certiorari. See Robert L. Stern et al., Supreme Court Practice § 4.5 at 233-34 (8th ed. 2002) (“Certiorari is often granted and the matter clarified where the court of appeals has allegedly misconstrued, misapplied, or misconceived an applicable Supreme Court opinion, or where the decision below ‘seemed to be out of line with the authorities . . . .’ ”) (quoting Braen v. Pfeifer Transp. Co., 361 U.S. 129, 130 (1959)); (other citations omitted).2
2 Respondents argue that the Court should not grant the Petition because the court of appeals’ decision does not conflict with any other circuit court decision. Opposition at 10. Indeed, a commentator has noted that the court of appeals’ decision “appears to present an issue of first impression in federal court.” Benjamin K. Probber, Comment, Diaz v. Brewer and the Equal Protection Clause: A Roadmap for the Retention of Same-Sex Public Employment Benefits, 14 U. Pa. J. Const. L. 1351, 1354 (2012). But the decision merits review because the lower court decided an important federal issue that is contrary to this Court’s precedent. Review is also warranted because the decision is seriously out of line with state and federal court equalprotection decisions concerning the States’ legitimate interest in furthering traditional marriage and conditioning the receipt of certain benefits on marital status. See Petition at 18-31.

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1. Respondents continue to rely on United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973), to support their argument that there is no need to show intent to discriminate if a law disparately impacts an unpopular group. Opposition at 1416. But Respondents misconstrue Moreno and ignore the distinctions between Moreno and the court of appeals’ decision in this case. These distinctions demonstrate that Moreno provides no support for the court of appeals’ decision; indeed, the decision conflicts with Moreno.
First, in Moreno, “the legislative history . . . indicate[d] that [the challenged law] was intended to prevent socalled ‘hippies’ and ‘hippie communes’ from participating in the food stamp program.” 413 U.S. at 534. Here, Respondents did not provide any evidence – and the court of appeals did not refer to any evidence – of intent to discriminate against gay and lesbian employees. Respondents had the burden of demonstrating intent to discriminate in order to obtain the preliminary injunction. See Mazurek, 520 U.S. at 972 (noting the high burden of proof that a plaintiff must meet in order to be entitled to preliminary injunctive relief). And the type of evidence that would support a discriminatory-intent finding – legislative history and historical background – was available when the district court granted the preliminary injunction and neither the legislative history nor the historical background indicated that the Legislature enacted Section O based on discriminatory intent. See Petition at 13-15.

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Second, Respondents ignore the fact that the Court did not depart from traditional rational-basis principles in Moreno,3 whereas the court of appeals applied a distorted rational-basis test in this case. In Moreno, the Court found that the challenged law’s definition of “household,” which excluded households that contained a nonrelative, did not further the government’s proffered fraud-prevention rationale because the alleged fraud-promoting group (the hippies) could rearrange their living conditions to retain their benefits under the challenged law. 413 U.S. at 537-39.4 In contrast, Section O’s provision of healthcare benefits to state employees’ spouses, and not to their domestic partners, furthers the State’s interest in promoting traditional marriage because it encourages unmarried, opposite-sex couples to marry.
3 See Lyng v. UAW, 485 U.S. 360, 370 n.8 (1988) (stating that Moreno “is merely an application of the usual rational-basis test”) (emphasis added).
4 Respondents incorrectly assert that the practical operation of the challenged law in Moreno was “to exclude the disfavored group and only that group.” Opposition at 15. The Court quoted the California Director of Social Welfare to support its conclusion that although Congress intended to prevent hippies (the disfavored group) from obtaining food stamps, most hippies could and would “ ‘alter their living arrangements in order to remain eligible.’ ” Moreno, 413 U.S. at 537. On the other hand, although there was no evidence that Congress intended to affect AFDC mothers, the challenged law’s practical operation excluded “only those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility.” Id. at 538.

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2. Respondents also incorrectly argue that the court of appeals’ conclusion that Section O must be viewed as camouflaged discrimination against gay and lesbian state employees is consistent with a long line of this Court’s authority. Opposition at 16. Respondents’ argument would be valid only if there was some evidence of discriminatory intent or there were no rational explanations for Section O other than the Legislature’s intent to discriminate against gay and lesbian employees. See Pers. Adm’r v. Feeney, 442 U.S. 256, 274, 275 (1979) (finding that although the challenged law’s impact on women was severe, the law did not violate the Equal Protection Clause because it was not enacted for the “purpose of discriminating against women” and its impact could be “plausibly explained on a neutral ground”); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 229, 266 (1977) (stating that absent a clear pattern that is unexplainable on grounds other than animus toward the affected group, “impact alone is not determinative”); see also Mazurek, 520 U.S. at 972 (stating that the Court does “not assume unconstitutional legislative intent even when statutes produce harmful results”).
Respondents argue that the court of appeals correctly determined that “Section O should be understood as intentionally discriminating against lesbian and gay State employees” because the Legislature conditioned “family health coverage on a status [marriage] that just the year before it helped to bar same-sex couples from entering.” Opposition at 17. But these facts alone do not support a finding of

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discriminatory intent provided that there is a plausible, nondiscriminatory reason for Section O’s enactment. Section O rationally furthers the legitimate interest of encouraging marriage while also eliminating the additional expense involved in providing healthcare benefits to state employees’ domestic partners. See Petition at 22-23. Respondents do not even mention these interests, much less try to explain why Section O does not further them.
Furthermore, Respondents ignore relevant, undisputed facts concerning Section O’s historical background and legislative history that demonstrate that Arizona has historically limited marriage to a union between a man and a woman, that Arizona only briefly provided healthcare benefits to state employees’ domestic partners and provided the vast majority of those benefits to state employees’ heterosexual domestic partners,5 and that Arizona decided to extend benefits only to state employees’ spouses during a historic budget crisis. Petition at 3-5, 13-14. These facts do not support the Respondents’ argument that discriminatory animus motivated the Legislature to enact Section O.
3. Like the court of appeals’ decision, Respondents do not address Section O’s actual classification,
5 Given that the State provided only a small fraction of domestic-partner benefits to state employees’ same-sex partners (Pet. App. 20a), Respondents did not even demonstrate that Section O had a disparate impact on gay and lesbian state employees.

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which distinguishes between state employees’ domestic partners and state employees’ spouses. Instead, Respondents argue that the court of appeals correctly determined that domestic partners of gay and lesbian state employees are similarly situated to state employees’ spouses. Opposition at 18-20. Respondents’ argument – and the court of appeals’ determination – would allow the courts to redraw legislative lines, which is contrary to this Court’s authority governing the rational-basis test.
“The proper classification for purposes of equal protection analysis . . . begin[s] with the statutory classification itself.” Califano v. Boles, 443 U.S. 282, 293-94 (1979). “Defining the class of persons subject to a regulatory requirement – much like classifying governmental beneficiaries – ‘inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.’ ” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315-16 (1993) (quoting U.S.R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980); alterations in original).
By holding that state employees’ same-sex domestic partners must be treated the same as state employees’ spouses, the court of appeals improperly changed the legislative classification. Because Section O provides benefits to state employees’ spouses but not to state employees’ domestic partners, the classification is rationally related to the State’s interest in

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encouraging heterosexual couples to marry. And, contrary to the court of appeals’ conclusion (Pet. App. 13a-14a), Section O is not irrational in excluding benefits for same-sex domestic partners because the State is not trying to encourage same-sex couples to marry. See Johnson v. Robison, 415 U.S. 361, 383 (1974) (“When . . . the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.”).
III. The Court of Appeals’ Decision Undermines All Laws Predicated on the Traditional Definition of Marriage.
Respondents claim that Petitioners wildly exaggerate the effect of the court of appeals’ decision in claiming that it undermines all laws that provide benefits based on the traditional definition of marriage. Opposition at 21. Because the court of appeals determined that Section O’s provision of benefits to state employees’ spouses did not rationally further the State’s interest in promoting marriage, it in effect concluded “that rules benefiting only traditional marriage serve no conceivable rational purpose.” Pet. App. 67a (O’Scannlain, J., dissenting). Respondents do not refute that conclusion.
Respondents also argue that the court of appeals’ decision is limited because it prevents government officials only “from eliminating existing family health

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care coverage for the small number of lesbian and gay State employees in this one jurisdiction.” Opposition at 22. Contrary to Respondents’ contention, the court of appeals’ rationale is not limited to instances where States have withdrawn previously extended benefits. Rather, the court of appeals addressed the “distribution of employee health benefits.” Pet. App. 14a (emphasis added); see also Pet. App. 11a (“[W]hen a state chooses to provide [employment] benefits, it may not do so in an arbitrary or discriminatory manner.” (emphasis added)); Pet. App. 13a-14a (stating that there was no rational basis for the “denial,” not the withholding, “of benefits to same-sex domestic partners” (emphasis added)). Thus, the district court in Dragovich v. United States Department of Treasury rejected the government’s argument that the court of appeals’ decision here concerned only the withdrawal of benefits, explaining that the decision stood for the proposition that “ ‘when a state chooses to provide benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular.’ ” ___ F. Supp. 2d ___, 2012 WL 1909603 at *15 (May 24, 2012) (quoting Pet. App. 11a).
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CONCLUSION
This Court should grant the Petition for Writ of Certiorari.
Respectfully submitted,
THOMAS C. HORNE Attorney General of Arizona
PAULA S. BICKETT Chief Counsel, Civil Appeals Counsel of Record KATHLEEN P. SWEENEY Assistant Attorney General CHARLES A. GRUBE Senior Agency Counsel
Counsel for Petitioners