Judge rules same-sex couple must be repaid after denial of benefits

Posted at 12:00 AM on Thursday, Nov. 19, 2009

A judge ruled Wednesday an assistant federal public defender's spouse must be compensated for health care benefits withheld since July 2008 because the couple are gay.

Stephen Reinhardt, a member of the 9th U.S. Circuit Court of Appeals, also reminded the bureaucracy that he decreed nine months ago in the same case that withholding benefits based on sexual orientation violates the U.S. Constitution's due process guarantee and the circuit's employment dispute resolution plan for federal public defenders and their staffs.

In that Feb. 2 order, Reinhardt directed the Administrative Office of the U.S. Courts to process Assistant Federal Defender Brad Levenson's request to include his husband, Tony Sears, on his medical, dental and vision coverage.

In the face of that order, the Office of Personnel Management intervened to prevent Sears' enrollment.

Levenson returned to Reinhardt asking that the government be ordered to provide Sears with comparable coverage by private insurers or fork over his spouse's costs under the federal Back Pay Act.

Reinhardt found in Wednesday's 25-page order that Sears was "wrongfully denied benefits … by an unjustified or unwarranted personnel action," and ordered the federal defender in Los Angeles, where Levenson works, to "compute the amount due to date" and secure reimbursement.

If the bureaucracy continues to block Sears' enrollment, the judge ordered the federal defender to decide whether future reimbursements "shall be paid on a monthly, quarterly, or other basis."

Benefits for Sears were originally denied by the Office of the (9th) Circuit Executive based on the federal Defense of Marriage Act of 1996. In his first order, Reinhardt found the act unconstitutional. Despite that, the Office of Personnel Management based its rejection on the same law.

The 1996 act provides that, with respect to all federal laws, rulings and regulations, or their interpretations by government bureaus and agencies, the word "marriage" means a legal union of a man and woman and the word "spouse" refers only to a person of the opposite sex who is a husband or wife.

There has never been a successful legal challenge to the act.

In his order Wednesday, Reinhardt wrote there is no rational basis for denying benefits to same-sex spouses of federal public defender employees while granting them to opposite-sex spouses of employees. "I conclude that the application of DOMA … to reach that result is unconstitutional."

Denial of Levenson's request "violates the due process clause of the Fifth Amendment," he declared.

Reinhardt was writing not in his capacity as a federal appellate judge but as an employer's representative in a grievance procedure. Consequently, the ruling applies only to Levenson and Sears.

Federal defenders are appointed by the circuits, and they and their staffs are judicial employees. Levenson and Sears, who have been partners for 15 years, were married July 12, 2008, at a time when same-sex marriage was legal in California.

Three days later, Levenson requested that Sears be added as a beneficiary of his health care plan.

Once he was thwarted, Levenson's only recourse was a grievance procedure set out in the employment dispute resolution plan adopted by the 9th Circuit for employees of the federal public defenders. That plan prohibits discrimination on numerous grounds, including both sex and sexual orientation.

Despite the narrow context of Reinhardt's findings, he based them on U.S. Supreme Court case law.

In 1985's Cleburne v. Cleburne Living Ctr., the high court said any government action resting on a distinction between discrete classes "must be rationally related to a legitimate governmental purpose. Furthermore, some objectives – such as a bare desire to harm a politically unpopular group – are not legitimate state interests."

Applying that standard to Levenson's case, "the challenged denial of benefits is constitutional only if there is a rational basis," Reinhardt wrote. "No such basis exists."

The judge also cited the 1996 decision in Romer v. Evans, in which the top court applied its Cleburne standard and found unconstitutional a law that discriminated against gays and lesbians.

"Thus," Reinhardt concluded, "the denial of federal benefits to same-sex spouses cannot be justified as an expression of the government's disapproval of homosexuality, preference for heterosexuality, or desire to discourage gay marriage."