Diaz

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 (9th Cir.2011) (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…

Order; Dissent by Judge O’SCANNLAIN.

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.

*824 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.

Before: MARY M. SCHROEDER and SIDNEY R. THOMAS, Circuit Judges, and MARK W. BENNETT, [*] District Judge.

Order; Dissent by Judge O'SCANNLAIN.

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…