Circuit Judge Dings DOMA and Oregon Marriage Amendment in Grievance Ruling on Benefits

Judge Harry Pregerson of the U.S. Court of Appeals for the 9th Circuit, sitting as Chair of the 9th Circuit’s Standing Committee on Federal Public Defenders, ruled that Alison Clark, an assistant federal public defender in the Office of the Federal Public Defender for the District of Oregon, is entitled to received coverage for her same-sex spouse under the Federal Employees Health Care Benefits Program.  In the Matter of Alison Clark, Case No. 13-80100 (9th Circuit, April 24, 2013) (unpublished).   In the course of reaching this decision, Judge Pregerson found that Oregon’s Measure 36, the 2004 ballot initiative that bans recognition of same-sex marriages in Oregon, violates the 14th Amendment, and he made a similar finding as to Section 3 of the federal Defense of Marriage Act.  Furthermore, he found that the federal government must recognize Clark’s same-sex marriage, contracted in Canada, even though she and her spouse live in a state where that marriage might not be recognized.

Clark married her same-sex partner, Anna Campbell, on June 23, 2012, in British Columbia, Canada.  A few weeks later, she applied for benefits under the Federal Employee Health Benefits Act, which applies to lawyers employed as federal public defenders.  The Act allows federal employees to elect family coverage, which can include their “spouse.”  The Administrative Office of the Federal Courts rejected the application, asserting that it was bound under Section 3 of DOMA to find that Campbell is not Clark’s spouse.  Furthermore, under Measure 36, Campbell and Clark are not recognized as spouses by their state of residence, either.  Clark filed a complaint under the Plan’s grievance system, arguing that the Benefit Plan’s own non-discrimination provision, which lists sexual orientation as a prohibited ground of discrimination, was violated, as well as the 5th Amendment equal protection and due process requirements.  Clark’s complaint ended up before the Committee, chaired by Judge Pregerson, and his opinion is consistent with rulings in two prior 9th Circuit cases presenting similar facts from federal court employees in California who had married in 2008 prior to the passage of Proposition 8, the main difference being that this marriage was contracted in Canada.

First Judge Pregerson found that this was an instance of sexual orientation discrimination, stating, “The only reason Clark was unable to make her spouse a beneficiary under the FEHB program was that, as a homosexual, she had a same-sex spouse.”  Thus, the Plan’s non-discrimination provision was violated.

Next, he addressed the issue of whether Oregon could refuse to recognize the marriage.  Before Measure 36 was passed, he observed, “Oregon law did not expressly limit marriage as between a man and a woman,” although the courts had construed the marriage law to be so limited.  Measure 36 amended the state constitution to provide: “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”  Pregerson opined that heightened scrutiny was the appropriate standard to evaluate Clark’s claim, but that it was unnecessary to reach that issue because “Measure 26 fails under rational basis review.”  He pointed out that under the Supreme Court’s 1996 decision, Romer v. Evans, 517 U.S. 620 (1996), “a classification treating homosexual individuals differently from heterosexual individuals cannot rationally be justified by the government’s animus towards homosexuality. . .  Here, Oregon does not state any reason for preventing same-sex couples from marrying.” 

Based on the arguments that had been made by proponents of California’s similarly-worded Prop 8 in Perry v. Schwarzenegger, Pregerson found that none of the purported state interests were “rationally related to prohibiting same-sex marriages.”  He made short work of the “responsible procreation,” “stable and enduring families for raising children,” and “proceed with caution in changing a basic social institution” arguments.   “While other possible objectives for Measure 36 exist,” he wrote, “I can see no objective that is rationallyr elated to banning same-sex marriages, other than the objective of denigrating homosexual relationships,” and such an objective would be impermissible under Romer.  Although he didn’t then go on to expressly  connect the dots, the implication was that Clark and Campbell’s marriage would be entitled to recognition in their state of residence, Oregon, as a matter of equal protection.

Having thus concluded, Pregerson did not need to address the alternative due process argument, but did so anyway.  He found that strict scrutiny should apply, because Supreme Court precedents supported the conclusion that the right to marry is a fundamental right.  However, again, he found that it wasn’t necessary to go this far, since Measure 36 flunked rational basis review, and thus, that Measure 36 “violates the due process rights of same-sex couples.”  “I next consider whether, given Clark and Campbell’s valid marriage, it is constitutionally permissible for the federal government to deny Clark’s request for spousal FEHB benefits.  I hold that it is not.”

Here, the barrier is Section 3 of DOMA.  Judge Pregerson found that “three rationales” for Section 3 listed in the House of Representatives report on DOMA to be insufficient under rational basis review.  He noted the Congressional Budget Office report, cited by the 1st Circuit in Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 14 (1st Cir. 2012), to the effect that DOMA did not save the federal government money, because the net effect of repealing Section 3 would be to save money for the government, cost savings from recognizing same-sex families outweighing possible tax revenue losses.  Furthermore, he wrote, “there is no rational basis for distinguishing between same-sex couples and opposite-sex couples if the government’s objective is to cut costs.”  He concludes that Section 3 is unconstitutional under both the equal protection and due process requirements of the 5th Amendment.

The Obama Administration’s stance since February 2011 has been that Section 3 is unconstitutional but will be enforced until it is repealed or definitely invalidated by the courts.  The Supreme Court heard oral argument in March in United States v. Windsor, whose resolution may determine whether Section 3 is constitutional.  But Judge Pregerson is apparently not inclined to wait for that ruling.  Having held that denial of Clark’s application violates the Plan and the Constitution, provided a remedy.  “I therefore order the Director of the Administrative Office of the United States Court to submit Clark’s FEHB Health Benefit Election form, which she signed and submitted on July 12, 2012, to the appropriate health insurance carrier.”  He also affirmatively orders that the Office process future “beneficiary addition requests without regard to (1) the sex of a listed spouse and (2) whether a validly executed same-sex marriage is recognized by a state.”   In case the federal Office of Personnel Management “blocks this relief,” he would alternatively order monetary relief, along the lines that the 9th Circuit has approved in the Levenson case from California, providing the funds necessary to compensate Clark for the cost of obtaining insurance coverage for her spouse.  This, of course, would cost the government more than including Clark’s spouse under the employee group insurance policy. 

Judge Pregerson’s ruling, which is non-precedential and only binds the parties, nonetheless takes on a question left hanging during the Windsor oral argument, of whether the constitution would require the federal government to recognize legally-contracted marriages, regardless where the married couple resides.  This is a significant question because state marriage laws generally do not have residency requirements, so many same-sex couples who live in states that do not authorize or recognize same-sex marriages have gone to other states (or countries, usually Canada) to get married, but are living in jurisdictions that don’t recognize their marriages.  When questioned about such situations during the Windsor argument, her counsel, Roberta Kaplan, stated that the plaintiff was only asking for federal recognition in states that recognized the marriages, but it is difficult to see how a federal constitutional right could be so cabined, and it would be unfortunate if the Supreme Court were to hold Section 3 invalid without addressing this question of broader application.

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