Friday, November 20, 2009

DOMA Unconstitional?

An article in the LA Times reports that Judge Stephen Reinhardt of the Ninth Circuit US Court of Appeals issued an Order in the Matter of Brad Levenson that seems to declare unconstitutional that part of the 1996 Defense of Marriage Act (DOMA) that declares that a same-sex marriage cannot be a marriage under federal law or for purposes of granting federal benefits. The plaintiff in the case is a deputy federal public defender who has had a same-sex partner for 15 years. After legally marrying in California in 2008 prior to passage of Proposition 8, the plaintiff tried to add his spouse to his health insurance, but was turned down by his employer, the Office of the Federal Public Defender, citing DOMA. The plaintiff then took the matter up for resolution by a circuit judge.

In an earlier ruling, Judge Reinhardt concluded that the plaintiff and his spouse were entitled to their benefits, but the federal government still refused. Judge Reinhardt’s recent Order awards the plaintiff money to compensate him for the cost of the additional insurance. The Order, in dicta, states that marriage, traditionally regulated by state law, is a fundamental right and for the case at hand, the judge “need determine only whether same-sex spouses who have been legally married under the laws of the relevant state may, because of the sex or sexual orientation of the couple, be denied federal benefits that are afforded to other spouses legally married under such laws.” The conclusion on page 16 of the order speaks in broad terms:
In sum, to the extent that the application of DOMA serves to preclude the provision of health insurance coverage to a same-sex spouse of a legally married federal employee because of the employee’s and his or her spouse’s sex or sexual orientation, DOMA, as applied, contravenes the Fifth Amendment to the United States Constitution and is therefore unconstitutional.
In addition, the Ninth Circuits Chief Judge Alex Kozinski entered a similar Order in the Matter of Karen Golinski on behalf of another federal employee who had legally married her same-sex partner but denied benefits given to opposite-sex married couples. He also ordered published his previous Order, from January 2009, which initially ordered that her spouse be granted federal benefits.

In New York, the Court of Appeals on Thursday dismissed a complaint in Godfrey v. Spano by taxpayer plaintiffs challenging directives by county officials that recognized out-of-state same-sex marriages for purposes of public employee health insurance coverage stating on page 4 of the opinion "Although the federal Defense of Marriage Act (DOMA) authorizes the states to pass so-called "mini-DOMAs" . . . New York has not, and the Legislature has enacted no other law expressly forbidding the recognition of same-sex marriages performed in other jurisdictions or expressing any legislative intent that such marriages be voided."

The Brooklyn Law School Library has a number of related items in its collection. See What's the Harm?: Does Legalizing Same-Sex Marriage Really Harm Individuals, Families, or Society? edited by Lynn D. Wardle (Call # KF539 .W53 2008).

See also Same-sex marriage and the Constitution by Evan Gerstmann (Call # KF539 .G47 2008) with chapters that include Reason and prejudice: is the heterosexual monopoly on marriage rational? -- Looking for stricter scrutiny: sexism, heterosexism, and class-based equal protection -- The fundamental right to marry -- Same-sex marriage and the fundamental right to marry -- Should courts create new rights?

See also Same Sex, Different States: When Same-Sex Marriages Cross State Lines by Andrew Koppelman (Call # KF539 .K67 2006) including these chapters: Marriage, choice of law, and public policy -- Miscegenation in the conflict of laws -- Against blanket nonrecognition -- Choice of law rules: the options -- When to (and when not to) recognize same-sex marriages -- The irrelevance of full faith and credit and the Defense of Marriage Act -- The difference the mini-DOMAs make.

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