9th Circuit Undermines DOMA, Asks for Federal Benefits of Same Sex Spouses

Written by Arthur S. Leonard Thursday, 05 February 2009 18:16

This is the first time that a federal appellate judge has ruled that DOMA is unconstitutional in a particular application.

In two opinions posted to the website of the U.S. Court of Appeals for the 9^th Circuit on February 4, judges of the court ruling on internal grievances filed by employees of the judicial branch within the 9^th Circuit ordered the court administrators to process requests that same-sex spouses of the employees be included in the federal benefits plan governing their employment. The decisions are not official 9^th Circuit court opinions, but provide unusual insight into what at least these two circuit court judges think about the federal Defense of Marriage Act (DOMA) and its relationship to the constitutional rights of LGBT public employees.

The circuit has its own non-discrimination policy, which covers sex and sexual orientation, among other things, and applies to the terms and conditions of employment of its staff, and an internal dispute resolution policy that culminates in an appeal to a single member of the court. The same system, in parallel, applies to employees of the federal public defenders offices in the 9th Circuit. In these two cases, In the Matter of Karen Golinski and In the Matter of Brad Levenson, employees covered by this system married same-sex partners in California during the window of opportunity prior to the passage of Proposition 8 (which amended the California Constitution to provide that only different-sex marriages were valid or recognized in California), and each sought to have their partner included under their employee benefits plans as spouses. The benefits administrators in both cases took the position that because of DOMA, which includes a provision forbidding the recognition of same-sex partners for purposes of federal law, these spouses could not be considered "spouses" as the term is used in the statute authorizing employee benefits for federal court personnel.

The first case, brought by Karen Golinski, a staff attorney for the appeals court in San Francisco, culminated in a January 13 ruling by Chief Judge Alex Kozinski. Kozinski concluded that the statute was ambiguous enough that he could construe it to authorize the benefits, through a verbal sleight of hand employed specifically to avoid the DOMA question. The statute, part of the Federal Employee Health Benefits Act, 5 U.S.C. sec. 8903(1), authorizes the Office of Personnel Management to enter into contracts with insurers to provide coverage for "employees, annuitants [and] members of their families." In 5 U.S.C. sec. 8901(5), the statute defines "member of family" as an employee’s spouse and children. The court administrator took the position that "spouse" in this context means a legal spouse, and that under DOMA a legal spouse may not be of the same sex as the employee.

Kozinski insisted, "But this isn’t the only plausible reading of the FEBHA. Another way of construing these statutory provisions is as a set of general guidelines for medical benefit plans, as well as a number of minimum requirements that such plans must satisfy." Thus, according to Kozinski, the statute sets a floor, so OPM would not be allowed to contract for insurance that did not extend to spouses and offspring of employees, but would be free to provide benefits to members of an employee’s "family" other than spouse and children. Thus, he suggests, OPM could decide to provide "‘family’ benefits for individuals who do not qualify as spouses under federal law, but who are considered spouses under state law." And, pointing out the well-established practice of avoiding difficult constitutional questions if it is possible to do so through statutory construction, Kozinski opts to avoid the tough constitutional issue.

He seeks to justify his construction of the statute by arguing that it "harmonizes" the statute with the Circuit’s equal employment opportunity plan, which specifically prohibits sex and sexual orientation discrimination, and there is no doubt that refusing the benefits in this case would discriminate on one or both of those grounds.

What is more significant, coming from Chief Judge Kozinski, is his brief discussing pointing out why this would be a "difficult" constitutional issue. "If I were to interpret the FEHBA as excluding same-sex spouses, I would first have to decide whether such an exclusion furthers a legitimate governmental end. Because mere moral disapproval of homosexual conduct isn’t such an end, the answer to this question is at least doubtful." He briefly discusses Romer v. Evans, 517 U.S. 620 (1996), in which the Supreme Court struck down Colorado Amendment 2, for the proposition that "disapproval of homosexuality isn’t itself a proper legislative end," and notes the earlier decision in Reitman v. Mulkey, 387 U.S. 369 (1967), in which the court struck down a facially neutral housing law that the Court found had the "design and intent" of weakening laws against housing discrimination, for the proposition that even a facially neutral law might be unconstitutional if enacted with discriminatory intent.

"Whether DOMA’s sweeping classification has a proper legislative end, or whether it reflects no more than an invidious design to stigmatize and disadvantage same-sex couples, is a hard question," continued Kozinski. "The inquiry conducted by the Court in Reitman into the history and context of the California law was searching and careful, and to conduct a similar inquiry of DOMA would be a delicate and difficult task."

I think, with all due respect, that Judge Kozinski slightly overstates the difficulty of the task. One need only look at the context of DOMA. The Hawaii Supreme Court had suggested that same-sex couples might be entitled to marry, and sent the case for trial. The trial was scheduled to occur in the fall of 1996, a national presidential and congressional election year. Some incautious gay rights supporters had fueled reports in the media that if Hawaii allowed same-sex marriages, couples could flock there to marry and then compel recognition of the marriages in their home states by using the Full Faith and Credit Clause of the Constitution (by the way, a dubious contention if one studies marriage recognition doctrine in the U.S.). The Republicans seized upon this as a "wedge issue" to exploit in the national election campaign, and Senator Dole, the putative Republican presidential candidate, introduced DOMA in Congress. Seeking to neutralize the issue, President Clinton, standing for re-election, announced his support for DOMA. The whole thing was intensely political and did not reflect any sort of deliberative legislative process demonstrating any kind of objective need for such a law. Indeed, at the brief hearings held on the matter, one of the pre-eminent constitutional law scholars in the country, Prof. Lawrence Tribe of Harvard Law School, testified that the Full Faith and Credit Clause would not mandate recognition of same-sex marriages across state lines, so that part of the proposed bill was irrelevant and unnecessary. At the time DOMA was enacted (and signed into law in the middle of the night with no ceremony by President Clinton), there was no jurisdiction IN THE WORLD that authorized same-sex marriages, so a federal statute forbidding their recognition for any purpose of federal law was a solution in search of a problem. Although the Hawaii trial judge did rule in favor of same-sex marriage, the state legislature responded by swiftly proposing a constitutional amendment to overrule the court, which was overwhelmingly adopted by the people of Hawaii the following year while the state supreme court cooperatively stalled in scheduling a hearing on the state’s appeal of the decision. And, in fact, same-sex marriages did not become available, as a practical matter, anywhere until after the turn of the century. So at the time of its enactment, DOMA was entirely symbolic – it was entirely about sending a message of heteronormativity and supremacy and moral disapproval of gay people.

In the course of his opinion, Judge Kozinski acknowledges that in light of Lawrence v. Texas, 539 U.S. 558 (2003), and of recent 9th Circuit precedent (to wit, Witt v. Dep’t of Air Force, 527 F.3d 806 [2008]), there would be a serious question of whether the exclusion of a same-sex spouse from federal employee benefits eligibility could be sustained. "The effect of Lawrence and Witt on a discriminatory benefits law are far from clear," he said. "I would have to consider, for example, the relative magnitude of the state sanction here: Lawrence involved a criminal penalty, but that penalty was only a small fine. Golinski pays out of pocket to purchas additional health insurance for her spouse, and her expenses each month exceed the total fine imposed in Lawrence. I would need to apply Witt’s multi-pronged balancing test or fashion my own interpretation of Lawrence’s requirements – in either case, a major decision of constitutional law."

Since federal courts avoid making a "major decision of constitutional law" if they don’t have to, Kozinski chose the safer path of construing the state to permit coverage of same-sex spouses, and then ordering the administrators to process Golinski’s health benefits election form as submitted. "Any future health benefits forms are also to be processed without regard to the sex of a listed spouse," he concluded. This is the chief judge of the Circuit speaking, of course. Kozinski signed the opinion on January 12, and filed it on January 13, but it was only posted to the court’s website on February 4, together with the other opinion discussed below.

Circuit Judge Stephen Reinhardt did not feel similarly constrained in his February 2 ruling on the internal grievance brought by Brad Levenson, a federal public defender in the Central District of California, under the separate but parallel non-discrimination policy governing employees of the federal defenders office. As far as Reinhardt is concerned, the statute is not ambiguous, only a legal spouse can be enrolled in the benefit plan, and the DOMA question must be confronted. After briefly reviewing the statutory language, he concluded that the "provisions defining family members to include spouses must be interpreted, pursuant to DOMA, to include only opposite-sex spouses." Reinhardt points out that DOMA would not limit Congress from providing that family members other than spouses may be included in the federal employee benefits program, but DOMA would preclude including same-sex spouses within the definition of spouse.

Not surprisingly, given the views he's expressed elsewhere, Reinhardt believes that the provision in DOMA barring federal recognition of same-sex marriages, when applied to this case, is unconstitutional. "Although I adopt the same remedy as the Chief Judge, I reach that conclusion in a somewhat different manner. I must reluctantly disagree with the view the FEHBA is ambiguous. I believe instead that the only reasonable reading of that statute is that it does not permit coverage of families falling outside its definition of family member. Accordingly, I believe that I am compelled to reach the constitutional issue. Doing so, I conclude that the application of DOMA to FEHBA so as to deny Levenson’s request that his same-sex spouse receive federal benefits violates the Due Process Clause of the Fifth Amendment."

Chills ran down my spine when I read that sentence for the first time last night. I believe that this may be the first time that a federal appellate judge has ruled – albeit in an informal, non-precedential proceeding – that DOMA is unconstitutional in a particular application.

Reinhardt suggested that some kind of heightened scrutiny was likely applicable to Levenson’s claim, noting Witt, but didn’t need to go there, since he concluded that "the denial of benefits here cannot survive even rational basis review, the least searching form of constitutional scrutiny." He asserted that "no such basis exists." He pointed out that cases such as City of Cleburne and Romer made clear that "a distaste for or disapproval of same-sex marriage or a desire to deprice same-sex spouses of benefits available to other spouses in order to discourage them from exercising a legal right afforded them by a state" could not justify this application of DOMA.

DOMA does not itself recite policy justifications, but Reinhardt focused on the House committee report on the bill, which identified three interests it was purportedly to serve: "the government’s interest in defending and nurturing the institution of traditional, heterosexual marriage;" "the government’s interest in defending traditional notions of morality;" and "the government’s interest in preserving scarce government resources." Reinhardt observed that the first interest was irrelevant in this case, because Levenson was "already married," and "Gay people will not be encouraged to enter into marriages with members of the opposite sex by the government’s denial of benefits to same-sex spouses, and the denial will not discourage same-sex couples from entering into same-sex marriages," he opined, "so, the denial cannot be said to ‘nurture’ or ‘defend’ the institution of heterosexual marriage."

The second interest, he asserted, violated the "bare desire to harm" prohibition of Romer and Cleburne. "In addition," he wrote, "denying married same-sex spouses health coverage is far too attenuated a means of achieving the objective of ‘defending traditional notions of morality,’ as it also is with respect to achieving the objective of ‘defending and nurturing the institution of traditional, heterosexual marriage.’" He also noted that Romer and Lawrence rejected justifying anti-gay discrimination based on "traditional notions of morality."

He found the third articulated interest no more persuasive. "The denial of health insurance to same-sex spouses may in a comparatively few cases relieve the government of paying its portion of a family coverage premium. However, that a government policy incidentally saves the government an insignificant amount of money does not provide a rational basis for that policy if the policy is, as a cost-saving measure, drastically underinclusive, let alone founded upon a prohibited or arbitrary ground." Finding no other identifiable government interests that could justify refusing the coverage, and finding as well that denying the coverage "does not serve the government’s interest in promoting long-term relationships" and if anything undermines an interest in promoting a child-rearing environment, Reinhardt concluded there was no rational basis for distinguishing between different-sex and same-sex spouses in providing the benefits.

Reinhardt concluded by ordering the administrators to process Levenson’s request, and added, "Any future beneficiary addition requests are also to be processed without regard to the sex of a listed spouse." Reinhardt retained jurisdiction of the case "so that I may issue any further order that may be necessary to ensure that Levenson’s spouse receives the benefits to which he is entitled."

Curiously, neither opinion mentions Proposition 8 and the controversy over whether it retroactively invalidated the marriages performed during the window of opportunity. Even more curiously, in light of Kozinski's desire to avoid the constitutional question, he doesn't take advantage of Proposition 8 to either put off deciding the grievance until after the California Supreme Court rules on Prop 8's validity (a ruling that will occur on or before June 5, three months after the scheduled oral argument on March 5), or even to say that although the marriage in Golinski’s case may have been valid when the grievance was filed, it is no longer valid so the case is moot. He could have taken that route, I think, to avoid deciding the question, but instead engaged in a species of statutory construction that is implausible, at least in Judge Reinhardt's view.

So, we now have a federal Circuit judge who has said on the record that the non-recognition provision in DOMA is unconstitutional as applied to the employee benefits entitlements of federal court employees, and another who has acknowledged that it raises a serious constitutional issue. Unfortunately, these are just internal grievance rulings, posted to the 9th Circuit website, not formal opinions of the court that will be published and can be cited as precedent.

On the other hand, these two opinions show that intellectually honest federal appeals judges have doubts about the constitutionality of DOMA - at least the non-recognition part, as applied to federal employee benefit entitlements. Kozinski, a Reagan appointee who is politically conservative but libertarian and intellectually honest in his approach to politically charged legal issues, raises serious questions about the constitutionality of DOMA while shying away from deciding the issue on his own. That's an important sign for the future. Although President Obama’s gay rights agenda, as noted on the White House website, includes getting rid of DOMA and extending federal employee benefits to same-sex spouses, civil union partners, and domestic partners, it is hard to tell when that will surface as a legislative priority in light of the current economic situation. In the meantime, Judge Reinhardt’s opinion provides a roadmap for federal employees who validly married to their same-sex partners to bring forth similar claims. While his opinion is not a binding precedent, it is certainly a persuasive one.

Read the original article at Leonard Link