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Something somewhat big happened in the 9th Circuit Court of Appeals on the 18th. Judge Stephan Reinhardt issued a ruling, which finds a significant part of the Defense of Marriage Act to be unconstitutional. For those who barely remember the heady days of the Clinton administration, DOMA was an act, which the Republican controlled Congress forced on President Clinton. He will tell you he signed it to prevent something even more draconian from being enacted; you will have to decide for yourself if that is true.
What DOMA did was to deny federal benefits or recognition of any same sex marriage. This is a real problem as many of the rights, which married folks enjoy, are Federal rights not State level. As a practical matter this affects Federal employees the most as they are ineligible to have their same sex spouses on their insurance plans, ineligible to have their spouses as beneficiaries of any pension, and the like.
Normally there is nowhere for a Federal Employee to sue to try to change this, but in California (where the 9th Circuit is located) they have a program for Federal Public Defenders which resolves disputes about benefits. In this program they expressly forbid discrimination against anyone for gender or sexual orientation in awarding of benefits.
Along comes Mr. Brad Levinson, a Deputy Public Defender. He is also gay and married his long time partner Tony Sears in California on March 16, 2008. He then tried to have his husband added to his Federal Employee benefits program. This was denied, with a citation of DOMA as the reason.
Judge Reinhardt has found and states conclusively that the denial of benefits based solely on the sex and sexual orientation of Mr. Levinson’s husband is unconstitutional because is violates the 5th Amendment Equal Protection clause. He spends 25 pages detailing how he has the power to order the benefits office of the 9th Circuit to either add Mr. Sears to his husbands insurance or order them to pay a for a similar plan.
He points out, correctly, that under the terms of the benefits dispute resolution, there can be no discrimination for sex or sexuality, but DOMA does exactly that by singling out gay citizens for lesser treatment .
This is a huge deal. The 9th Circuit known to be one of the most liberal Court of Appeals. It is also the one which tends to take the plain text of laws and interpret them against the plain text of the Constitution. The 9th Circuit was the Court which found the words “Under God” in the pledge of allegiance to be unconstitutional when school children are required to recite the pledge.
There are two things this order does. First off it gets the Levinson’s the benefits they are entitled to as a legally married couple. Second and more important in the long term is it the first time a Federal Court of Appeals has found DOMA (well parts of it) unconstitutional. For those who are fighting for marriage equality in the Federal Courts this is huge win. The Supreme Court can overturn this order, if they hear the case. But if they don’t then there is a Federal precedent that states DOMA is unconstitutional based on 5th Amendment arguments. This will require the High Court to explain why, based on equal protection, gay marriage bans should be sustained. That makes it much harder for them to support the idea that citizens can be discriminated against if the voters are dumb enough to vote to do so.
Judge Reinhardt also puts his decision on the base of the Loving case. Loving is the case which ended the bans on interracial marriage. This another place where he is putting the Supreme Court in a trick bag. They will not only have to justify any support of gay marriage bans on the 5th Amendment, but they would have to either redefine Loving or overturn long settled law.
The end result is this case makes it much more likely the Supreme Court will have to hear marriage equality cases, and they will be far less able to fudge is and allow States to prevent some citizens from marrying just based on the sex of the couple who wants to marry.
All in all a good day for civil rights in America. If you are a legal nerd like I am you can read the whole decision here.
The floor is yours.
6 Comments
Great thanks for the report, this is a promising development. Eventually, family values will extend to all – even wingers – and rights to the status of family for partners will belong to everyone.
Good news! But am I wrong to be worried about this going to the Supreme Court right now, given the makeup of the panel?
Clinton wasn’t FORCED to sign anything! I’m tired of Dems giving him a pass on DOMA and DADT. He did it to try and save his own ass. He wasted 4 years with the Monica Lewinsky scandal. He’s still lying after all these years. Mr. Triangulator threw progressives under the bus, just like President Oboover is doing now. Maybe the courts can right this obscenity.
Yes and no. They will be conservative, of course, but there is less wiggle room than other cases since this is a binary set, either gay citizens have the same rights as everyone or they don’t. It would be a major departure from previous case law for them to find that a suspect class like gay citizens were not being unfairly discriminated against.
But this ruling helps keep them from making that departure, so it is good news all the way around.
Thanks Bill, you’re more knowledgeable about this stuff than I am.
This is a limited niche opinion that arises out of the EDR program set up for the Federal Public Defenders; it basically appears to make the 9th Circuit the referee for employee disputes with their plan and my guess is this opinion will not have much, if any, precedential value outside of future EDR cases similar to this one.
Secondly, the judges holdings are really quite a bit more restricted to the specific question and person involved in that case if you read closely.
This is not a standard Article III jurisdiction case, and best as I can tell, it is not reviewable. As far as actual binding precedent for real matters in controversy in Federal courts, it appears to have no value whatsoever.
Al that said, it is some very nice language and dicta and it sure seems clear how Reinhardt would view these matters with a ripe case in properly front of him (he would have to be on a panel of three, which is the contingent for standard appeals unless and until they are subsequently given en banc review) in the regular course of appellate business. In that regard it is very helpful in that at least one Circuit judge has the proper outlook on things.. Also ought to buck up Vaughn Walker in his current case in NSCA being argued by Boies and Olson I would say.
For the record, I agree with Bill Canby, another Ninth Circuit judge who is mentioned in the order in a citation to a different case, in that I think this decision ought to be governed by strict scrutiny rather than the middle road of elevated scrutiny as Reinhardt applied.