Tuesday, February 10, 2009

9th Circuit Court Rejects DOMA

Two federal employees have utilized a federal court's administrative dispute process to seek spousal benefits that they have been denied based because of the Defense of Marriage Act (DOMA). In separate decisions, two 9th Circuit judges have found in favor of the employees and, while their decisions do not extend beyond these two cases, have cast doubt on the constitutionality of DOMA.

The first case was decided on 1/12/09 and the order can be found here. (PDF). All direct quotations below are taken from Chief Judge Alex Kosinski's order, In the Matter of Karen Golinski.

In 2008, California attorney Karen Golinski married a woman and applied to add her legal wife to her health insurance plan. She was denied because her spouse is female. Although the denial of this "valuable benefit" on the basis of sex and sexual orientation violated the Equal Employment Opportunity Plan that covers Golinski, her federal employer nonetheless refused to identify Golinski's wife as her legal spouse because he believed that doing so was barred by the Defense of Marriage Act (DOMA).

DOMA, as you will recall prohibits the federal government from recognizing same-sex relationships as marriage for any purpose, even if the same-sex marriage is recognized by a particular state. In Golinski's case, she was employed by the federal government. Thus, even though Golinski is legally married to her wife under California law, her federal employer believed himself to be barred from recognizing Golinski's marriage for purposes of providing federal spousal health insurance coverage.

In addition, her employer failed to certify Golinski for family coverage arguing that under the Federal Employee Health Benefits Act (FEHB), her wife is not considered a legal spouse under federal law and thus is not part of her "family" for purposes of the FEHB. Chief Judge Alex Kosinski, disagreed with this second argument and stated that the FEHB could be more broadly construed to allow an employer to contract "for 'family' benefits for individuals who do not qualify as spouses under federal law, but who are considered spouses under state law."

At the same time, while acknowledging Supreme Court precedent that "mere moral disapproval of homosexual conduct" does not justify treating similarly-situated gay and lesbian couples differently than heterosexual couples, the 9th Circuit declined to answer the "delicate and difficult question" of the constitutionality of DOMA. Courts are hesitant to decide broad constitutional issues if they do not have to. So, Kosinski broadly construed the FEHB to permit coverage of same-sex spouses so he would not have to decide the more broad question of DOMA's constitutionality.

While Kosinski, who is generally regarded as a conservative, declined the opportunity to decide a larger constitutional issue, this decision is a small victory that nicks away at the injustice of DOMA.

The second case involves Tony Sears, a federal public defender who also married his husband in 2008 and sought benefits for his spouse. Judge Stephen Reinhardt went further than Kosinski and found DOMA to be outright unconstitutional stating:

"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 afforded them by a state."

He went on to find DOMA to constitute unlawful discrimination.

In general, I think that these two cases will bring to light an oft-neglected issue in the marriage debate. Namely, that even if some states allow same-sex couples to legally marry, because of DOMA they still are not entitled to federal benefits and protections that heterosexual married couples can receive. I continue to maintain that the most logically consistent position for those who oppose marriage yet who also support reciprocal beneficiary laws for same-sex couples is to join us in seeking to overturn DOMA. With DOMA in place, even same-sex couples who are "only" in domestic partnerships or civil unions cannot obtain many of the federal benefits and protections that married couples can receive.

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