Gay federal public defender wins compensation for spouse's health care benefits

11/18/09 Order In the Matter of Brad Levenson, by 9th Circuit Judge Stephen R. Reinhardt:

In February, two 9th Circuit judges issued administrative decisions to settle employee disputes in the 9th Circuit. Acting as adjudication officers, Judge Stephen Reinhardt ruled that the federal DOMA should not prevent the spouse of federal public defender Brad Levenson from receiving health care benefits, and Chief Judge Alexander Kozinski ruled that such benefits must be extended to the lesbian spouse of 9th Circuit staff attorney Karen Golinski. They reached their decisions on different grounds with respect to the federal DOMA. And they did not set binding precedents for district courts within the circuit or for the circuit court itself.

Nevetheless, the Office of Personnel Management rejected the spousal benefit claims of Levenson and Golinski. In today's administrative order, Judge Reinhardt ruled that Levenson is entitled to compensation for the benefits his spouse was denied. He ruled that the federal DOMA is unconstitutional under the Fifth Amendment's due process clause, because the federal government's discrimination against Levenson and his spouse bears no rational relationship to legitimate government purposes. Again, his administrative order has no binding precedent for other courts. Yet Dan Levine of the Cal Law Legal Pad asks whether the order will have an effect on Perry v. Schwarzenneger.