Friday, February 6, 2009

Analysis - Two 9th Circuit Judges Grapple With DOMA By Leonard Link

(H/T Leonard Link)

Thanks to a heads-up from a regular reader of this blog whose law firm represented one of the parties, I was alerted to two rulings on internal personnel grievances at the U.S. Court of Appeals for the 9th Circuit that were recently posted to the court's website, involving the conflict between the circuit's non-discrimination policy and the federal Defense of Marriage Act (DOMA). I have a rather crowded schedule today and am not sure how soon I will be able to get to write up a more detailed account, so for now I'll just summarize quickly.

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, employees covered by this system married same-sex partners in California during the window of opportunity prior to the passage of Prop 8, 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. In the course of his opinion, he acknowledges that in light of recent 9th Circuit precedent (to wit, Witt!), the application of DOMA in this case would raise a serious constitutional question that he was eager to avoid deciding. One suspects that Kozinski, who suggested in his dissent from denial of en banc review in Witt that the issue of the level of scrutiny to be accorded government policies adversely affecting homosexuals is a serious issue worthy of en banc review, believes it would be a bad idea for a single judge of the circuit, sitting on an internal grievance, to take on the complicated constitutional issues raised by this case.

But 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. 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. 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. He explains in detail why it flunks rational basis review. Clearly, if heightened scrutiny were to be applied -- as the Witt case suggests should be done -- the analysis would be even easier.

Curiously, neither opinion mentions Prop 8 and the controversy over whether it retroactively invalidates 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 Prop 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 his 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 engages 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, at least 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. 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.

(Leonard Link does reporting and commentary on law, music, film and current events by New York Law School Professor Arthur S. Leonard, with a special emphasis on Sexuality & the Law.)

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