As reported in the LA TImes
A federal judge today ordered compensation for a Los Angeles couple denied spousal benefits by the federal government because they are gay men.
U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt deemed the denial of healthcare and other benefits to the spouse of federal public defender Brad Levenson to be a violation of the Constitution's guarantee of due process and discrimination on the basis of sexual orientation, which is prohibited by California state law......
Two same sex couples, employees of the Federal Courts, had each married during the Californian Interregnum. Each filed a complaint when they weren't allowed to insure their spouse. By law, such complaints are adjucated by the court, and in each case, the responsible judge ordered that these legally married spouses should have benefits.
But the Federal Government Office of Personnel and Management (OPM) balked, because of DOMA. They told the insurance company not to process the benefits.
So Judge Reinhardt has ruled that if Mr Levenson and his husband can't get benefits, they need to get compensation equivalent to the value of the coverage that was denied. The judge is Not Happy that the Fed disobeyed his order.
The judge's order is expected to resolve the injustice Reinhardt has cited in previous orders in Levenson's case. But it also recognizes the status quo of federal government rejection of gay marriage under the Defense of Marriage Act. Several other challenges by those denied federal benefits, like filing joint tax returns, are making their way slowly through the federal courts.
(That would be Gill et al which we've discussed. More on that next week).
Now, something very interesting here is that another Judge on the Ninth Circuit, Chief Judge Kozinski, had similarly found for HIS staffer, and like Judge Reinhardt, ordered her to be given benefits. Judge Kozinski is also quite annoyed that his first order was ignored, or rather, that OPM interfered to block it. He has now come back with a new order (PDF) too. In fact, he's gone further than Judge Reinhardt, and rather than simply ordered compensation, he's taking on the executive. (Interestingly, he is a conservative).
OPM's actions implicate an even more fundamental concern: the autonomy and independence of the Judiciary as a co-equal branch of government. In effect, OPM has claimed that its interpretations of the rights and benefits of judicial employees are entitled to supremacy over those of the Judiciary. That's incorrect, and the Executive must henceforth respect the Judiciary's interpration of the laws applicable to judicial employees. ....
He goes on to scold OPM and the executive in no uncertain terms about interfering in the equal branch of the judiciary. And he makes it very clear and unambiguous:
I have determined that, even as limited by DOMA, the FEHBP permits judical employees to provide health insurance coverage to their same-sex spouses....
So, movement on marriage equality in the federal courts in three areas: first, these executive orders of two judges from the Ninth Circuit finding for their employees. Second, the continuing salvoes in Gill v. Office of Personnel Management et al. (that pesky OPM again), which is a case from Massachusetts that challenges DOMA on the grounds that it unjustly treats legally married Massachusetts citizens. The third federal case is Perry vs. Schwarzenegger , which does not challenge DOMA but challenges CA Prop 8 in Federal Court on grounds of equal protection.
Obligatory disclaimer: I am not a lawyer, and will update/correct as needed based on lawyerly comments!
Hat-tip Dr Primrose, a commenter on Friends of Jake.
Update: Kossack lysias writes that Reinhardt's order actually declares DOMA unconstitutional.