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Judge takes swipe at DOMA
by Lisa Keen, Keen News Service
2009-02-11

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The good news: A well-known federal appeals judge this month took a legal swipe at the Defense of Marriage Act ( DOMA ) , declaring it unconstitutional. The bad news: The decision packed very limited punch, helping on a small cluster of employees in one federal appeals court.

The decision was rendered on an internal complaint filed by a court employee. While allowing employees with same-sex spouses in that circuit –the Ninth Circuit U.S. Court of Appeals—to begin receiving equal benefits for his same-sex spouse, it provides no remedy for anyone outside that court's employment. The Ninth Circuit covers California, Washington, Alaska, Oregon, Hawaii, Nevada, Idaho, Montana and Arizona.

The victory in the federal appeals court came in a case involving Brad Levenson, an attorney in Los Angeles, working for the Office of the Federal Public Defender, whose employees are part of the Ninth Circuit workforce.

Levenson married his partner, Tony Sears, in July 2008, at a time when same-sex marriages could be licensed in California. ( Following a referendum in November 2008, the state constitution was amended to ban such licensing and a case challenging that initiative is before the California Supreme Court March 5. )

After he married, Levenson applied to have his spouse covered under his health insurance at work, but an administrative official of the Ninth Circuit denied the coverage, saying that DOMA precluded him from recognizing a same-sex spouse.

DOMA, enacted by Congress in 1996, says that federal regulations and entities recognize the term "spouse" as referring "only to a person of the opposite sex."

Levenson filed a complaint with the Office of the Public Defender in California. He argued that denial of coverage violated both the U.S. Constitution and the Ninth Circuit's own employee non-discrimination policy. That policy prohibits discrimination based on sex and sexual orientation.

Judge Stephen Reinhardt, whose simultaneous position as chair of the Ninth Circuit's committee on the Federal Public Defenders charged him with ruling on the complaint, said there was "no doubt" the denial of coverage violated the Ninth Circuit's policy. Reinhardt agreed with the administrative official that DOMA requires that the word "spouse" in the law governing health benefits to federal employees "must be interpreted" as "only opposite-sex spouses."

But Reinhardt, a Carter appointee, said DOMA itself does not preclude the provision of benefits to a same-sex spouse.

"DOMA," he said in the decision published Feb. 4, "simply limits the definition of 'spouse' under federal law."

Just three weeks earlier, the Ninth Circuit's Chief Judge, Alex Kozinski, ruled on a nearly identical case. He also said health coverage should be granted to a lesbian attorney of the court, employed in San Francisco. But Kozinski, a Reagan appointee, did not tackle the implication of DOMA directly. Instead, he said the federal law governing benefits to federal employees—called the Federal Employees Health Benefits Act—was vague enough to allow a court to interpret the definition of "family" as including a same-sex spouse.

That decision, rendered Jan. 13, related to a complaint filed by attorney Karen Golinski, who sought coverage for her female spouse last year after they married.

Jennifer Pizer, director of the Marriage Project of Lambda Legal Defense and Education Fund, noted that the decisions do not reach beyond the Ninth Circuit employees and that there are no appeals available.

"They are, however, legally and logically compelling and—especially given the impressive stature of the judges who wrote them—immensely important steps," said Pizer. "I think of them as huge steps forward on a very long road."

Evan Wolfson, head of the national Freedom to Marry group, agreed. He said they also indicate "that the exclusion of gay couples from marriage rests on very shaky ground."

In ruling in Levenson's case, Reinhardt said he believes DOMA violates the Fifth Amendment guarantee that no citizen be punished without due process of the law. And he said there is "no rational basis for denying benefits to same-sex spouses" of federal circuit court employees.

The judge cited two recent U.S. Supreme Court decisions that upheld the rights of gay people—the Colorado Amendment 2 decision in Romer v. Evans, and the Texas sodomy law repeal in Lawrence v. Texas. He said both "strongly suggest that the government cannot justify discrimination against gay people or same-sex couples based on 'traditional notions of morality' alone."

"The denial of federal benefits to same-sex spouses cannot be justified simply by a distaste for or disapproval of same-sex marriage or a desire to deprive same-sex spouses of benefits available to other spouses in order to discourage them from exercising a legal right afford them by a state," wrote Reinhardt.

Among those who have clerked for Reinhardt are Massachusetts Gov. Deval Patrick ( in 1982-83 ) .

"Having two strong and persuasive decisions that take complementary routes to the same conclusion is exceedingly helpful to illustrate for future judges that they should think through what equality really requires," said Pizer.

In other marriage news, the proverbial roller-coaster rides on. The New York Times reported Feb. 8 that the majority leader of the New York State Senate now says he does not expect to bring a pro-same-sex marriage bill to the floor this year. Sen. Malcolm Smith told the Times there are not enough votes in the senate to pass the bill at this time. But a bill was introduced to the Vermont legislature Feb. 6 that seeks to approve equal rights in marriage in that state. Vermont was a pacesetter back in 2000, when it became the first state in the nation to approve legal recognition of same-sex relationships. It stopped short of marriage, however, and created a parallel system that identified gay relationships as "civil unions."

Also, in Massachusetts, the couple whose name led the lawsuit that prompted the landmark state supreme court decision which led to the first legal same-sex marriages in the nation, filed for divorce last week. Julie and Hillary Goodridge had announced their separation two years ago.

Feb. 8-14 is National Freedom to Marry Week, during which the National Freedom to Marry organization is encouraging LGBT people to have at least three conversations with friends and family to help build understanding and support for equal rights for LGBT people.

© 2009 Keen News Service


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