Tracy Collins, et al v. Janice Brewer, et al
FILED OPINION (MARY M. SCHROEDER, SIDNEY R. THOMAS and MARK W. BENNETT) AFFIRMED. Judge: MMS Authoring, FILED AND ENTERED JUDGMENT. 
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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,
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
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
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DIAZ v. BREWER
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.
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DIAZ v. BREWER
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.
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.
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
On June 6, 2011, the panel granted Plaintiff Tracy Collins’s unopposed
motion to dismiss without prejudice.
DIAZ v. BREWER
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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
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,
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-
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DIAZ v. BREWER
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.
DIAZ v. BREWER
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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
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
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DIAZ v. BREWER
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
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.
DIAZ v. BREWER
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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.
 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 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
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DIAZ v. BREWER
change furthered the state’s economic interests by reducing
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.
 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
DIAZ v. BREWER
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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
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.
 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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DIAZ v. BREWER
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
 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)).
 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
DIAZ v. BREWER
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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 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
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DIAZ v. BREWER
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.
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