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Federal judge rules denial of health coverage to same-sex spouse unconstitutional

February 5, 2009 | 10:54 am

A federal judge has deemed unconstitutional the government’s denial of healthcare coverage and other benefits to the same-sex spouse of a Los Angeles public defender, calling into question the validity of the 1996 Defense of Marriage Act.

9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt said the federal government’s refusal to grant spousal benefits to Tony Sears, the husband of deputy federal public defender Brad Levenson, amounted to unlawful discrimination on the basis of sex and sexual orientation.

“Because there is no rational basis for denying benefits to the same-sex spouses of [Federal Public Defender] employees while granting them to the opposite-sex spouses of FPD employees, I conclude that the application of [federal statutes] so as to reach that result is unconstitutional,” Reinhardt wrote in an order to the U.S. Courts administration to submit Levenson’s benefits election form. The ruling was issued Monday and published Wednesday.

“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,” Reinhardt wrote.

Neither Reinhardt’s ruling nor one in a similar case involving a 9th Circuit employee issued by appeals court Chief Judge Alex Kozinski establishes precedent that would have to be followed by courts hearing other challenges to the Defense of Marriage Act or the Federal Employee Health Benefits Act, which seek to deny federal benefits to same-sex spouses.

Reinhardt and Kozinski handled the respective complaints from Levenson and from 9th Circuit staff lawyer Karen Golinski in their capacity as dispute resolution officials within the federal judiciary, whose employees are prohibited from suing in federal court. Other federal employees denied benefits for same-sex spouses could sue under Title VII and other anti-discrimination statutes.

With same-sex marriage legal or recognized in only a handful of states and on hold in California since the passage of Proposition 8 in November, the number of cases similar to Levenson’s is probably small. Reinhardt said he didn’t know whether similar appeals had been raised by federal employees elsewhere in the judicial system. Still, legal scholars see Reinhardt’s reading of the Defense of Marriage Act as a bellwether on the constitutionality of that law and potentially others that seek to discourage or discriminate against homosexual partnerships.

“I think that this is a very important case in terms of the application of the Constitution to sexual orientation discrimination, especially with regard to partners,” said Erwin Chemerinsky, dean of the UC  Irvine law school.

While noting that Reinhardt’s ruling doesn’t directly affect the issue of gay marriage, Chemerinsky said he considered it “a key case toward creating a constitutional right for benefits for same-sex partners.”

Levenson, who married Sears on July 12 during last year’s five-month window when gay marriage was legal in California, applied for spousal benefits three days later but was denied by the 9th Circuit Executive Office on grounds that the Defense of Marriage Act and the Federal Employee Health Benefits Act prohibit extending benefits to same-sex spouses.

Levenson appealed to the 9th Circuit’s Standing Committee on Federal Public Defenders, which Reinhardt chairs, with the argument that his office’s dispute resolution plan expressly prohibits discrimination on the basis of sex and sexual orientation. The Defense of Marriage Act was passed by the Republican-controlled Congress 13 years ago and signed into law by President Clinton. The act identified three objectives: defending and nurturing the institution of traditional, heterosexual marriage; defending traditional notions of morality; and preserving scarce government resources.

In his 15-page ruling, Reinhardt debunked the first two objectives, stating that “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.” On the cost-saving objective, Reinhardt deemed the potential savings from discriminating against gays “insignificant” and “founded upon a prohibited or arbitrary ground.”

-- Carol J. Williams