Fox News Misinforms, Fearmongers About Arizona Domestic Partnership Lawsuit
July 12, 2012 3:57 pm ET by Carlos Maza
On Wednesday, FoxNews.com published an article warning that an “under-the-radar case pending before the Supreme Court” could “invalidate traditional marriage laws altogether.” But the case in question has little, if anything, to do with the legality of same-sex marriage.
Diaz v. Brewer -- which was recently denied en banc review by the 9th U.S. Circuit Court of Appeals -- deals with Arizona’s 2009 decision to rescind health benefits for the domestic partners of state employees. Plaintiffs argue that, because of Arizona’s constitutional amendment barring same-sex marriage, the elimination of domestic partnership benefits unjustly discriminates against gay and lesbian couples.
According to Fox News, which featured comments from National Organization for Marriage (NOM) chairman John Eastman, “traditional marriage laws could be on the line” if the case makes it to the Supreme Court:
[O]ne veteran 9th Circuit judge thinks his colleagues have declared a war on marriage.
Those judges "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,'" Judge Diarmuid O'Scannlain wrote in dissent of his court's decision not to grant the case further review. He said his colleagues were ignoring Supreme Court precedent and all but called upon the high court to take the case. Arizona's attorney general recently filed a brief with the justices asking them to accept O'Scannlain's invitation.
Lawyer John Eastman, with the National Organization for Marriage, called the 9th Circuit ruling "groundbreaking," and one that could render traditional marriage laws across the country "unconstitutional" if it takes hold.
Eastland [sic] says the legislature's action was perfectly reasonable given the budgetary fix it was in and that courts are supposed to defer to elected lawmakers to make difficult decisions -- like what programs or benefits to cut when money is tight. "The 9th Circuit has now effectively gone on record as saying it's irrational for the state to provide benefits to traditional married couples that it doesn't extend to everybody else. And that the only explanation for it is bigotry toward homosexuality." [emphasis added]
A few things to note about Fox’s reporting:
1. Nobody Has “Declared War On Marriage.” The phrase “declared war on marriage” does not appear anywhere in Judge O’Scannlain’s dissent -- it’s an editorial decision made by Fox News to describe the 9th Circuit’s decision to decline an en banc review of the case. And it’s the second time this year that Fox News has used the “war on marriage” rhetoric to describe efforts to recognize same-sex relationships.
2. NOM’s Eastman Is An Unreliable Legal Commentator. NOM’s chairman has a history of making poor legal judgments in order to advance his anti-gay agenda, including defending unconstitutional state sodomy laws and suggesting that gay judges should be barred from deciding cases about LGBT equality. Earlier this year, NOM responded to the Ninth Circuit’s decision on Proposition 8 by innacurately announcing that “judicial overlords” had declared “marriage is unconstitutional.”
3. The Arizona Case Isn’t A Challenge To The State’s Marriage Ban. While it’s technically possible that the Supreme Court could use the Arizona case as an excuse to strike down state bans on same-sex marriage, it’s extremely unlikely. The plaintiffs in Diaz aren’t actually challenging the legality of Arizona’s anti-gay marriage amendment – they’re challenging the state’s decision to deny gay couples an alternative to receiving marriage benefits.
Last July, when a district court first blocked Arizona’s attempt to deny benefits to gay couples, U.S. District Judge John Sedwick actually cited the amendment as a reason for his decision:
"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," Sedwick wrote. "Consequently, the spousal limitation in Section O burdens state employees with same-sex domestic partners more than state employees with opposite-sex domestic partners."
In the 9th Circuit’s decision to uphold Sedwick’s appeal, the court dismissed claims that providing domestic partnership benefits would somehow threaten traditional marriage:
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 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.
For the Supreme Court to invalidate state marriage laws based on the Arizona case, it would have to introduce a whole litany of issues and arguments that neither the plaintiffs nor defendants have mentioned thus far.
There are plenty of cases that will give the Supreme Court the ability to weigh in on the constitutionality of same-sex marriage bans starting in the fall. Despite Fox’s fearmongering, Diaz v. Brewer isn’t likely to be one of them.