20 November 2009

9th Circuit: Defense of Marriage Act Is Unconstitutional

From Bill Egnor at FDL:
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...
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.