First cracks in the DoMA wall

by on February 10, 2009  •  In DoMA

In decisions concerning personnel matters for court employees in the Ninth Circuit (based in San Francisco), two individual judges of that court have ruled that, notwithstanding DoMA, benefits must be extended to the same sex spouses of the employees. In In re Golinski, Chief Judge Kozinski construed the Federal Employee Health Benefits Act in such a way that its definition of family members as a spouse and children set the floor for who can be included, but was not as an exhaustive list.  In other words, he ruled that extending benefits to a same-sex spouse was merely a permissible extension beyond the minimum requirement, not a violation of DoMA's command that federal agencies must define "spouse" only as heterosexual married partners. Hmm. It's a stretch, but it gets the job done.  Kozinski acknowledged that if he didn't construe it that way, he would have to consider whether DoMA is constitutional, which "is a hard question." To analyze its constitutionality, he writes, "I would first have to decide whether such an exclusion furthers a legitimate governmental end.  Because mere disapproval of homosexual conduct isnt' such an end, the answer to this question is at least doubtful."

In the other matter, In re Levenson, Judge Reinhardt declines to adopt Judge Kozinski's interpretation of the statute, and confronts head-on the question of whether DoMA is constitutional. His logic in finding its application to employee benefits to be unconstitutional is succinct: the primary rationales for its enactment – "the government's interest in defending and nurturing the institution of traditional heterosexual marriage"  and "defending traditional notions of morality" (quoting the House Report) – are not legitimate state interests. "If the denial is designed to 'defend' traditional notions of morality by discouraging same-sex marriage, it does so only by punishing same-sex couples who exercise their rights under state law, and thus exhibits the 'bare desire to harm' same-sex couples that is prohibited under City of Cleburne and Romer." In a move clearly designed to emulate Romer,  Reinhardt also notes that the denial of health benefits has too attenuated a connection to discouraging same-sex marriage to provide a rational basis for the action.

These rulings concern only the individual personnel matters, and do not constitute precedent. Inevitably, however, they will encourage other challenges to DoMA. In addition to the 18,000 same-sex couples who married in California before Prop 8, there is an ever increasing number of such couples in Massachusetts and Connecticut. It's only a matter of time….

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