On November 18 and 19, two judges of the U.S. Court of Appeals for the 9th Circuit, sitting as part of the Employment Dispute Resolution (EDR) Plan for their court, responded to the impertinent move by the federal Office of Personnel Management (OPM) to interfere with the relief they had ordered earlier this year on behalf of gay employees of the federal courts within the Circuit who sought to enroll their spouses in the federal employee benefits plan program. In both cases, employees of the court had married their same-sex partners in California during the "window period" prior to the passage of Proposition 8, and their marriages are deemed valid in California pursuant to the more recent California Supreme Court decision construing the effect of Proposition 8 on previously-contracted marriages.
On November 18, Judge Stephen Reinhardt ordered that Brad Levenson, a deputy federal public defender for the Central District of California, be compensated for the expense of obtaining equivalent insurance for his partner, both restrospectively to the date he was denied benefits and on into the future until such time when he is allowed to enroll his husband. In the Matter of Brad Levenson, No. 09-80172 [2009 Westlaw 3878233].
On November 19, Chief Judge Alex Kozinski took things a step further and ordered that OPM drop its opposition to enrolling Karen Golinski's wife in the program and that the insurer, Blue Cross Blue Shield, enroll Golinski's wife. Kozinski also joined Reinhardt in ordering compensation dating back to the time when Golinski's initial application was denied. In the Matter of Karen Golinski, No. 09-80173 [2009 Westlaw 4043529].
What was most interesting about the orders, however, was how they took on the Executive Branch on behalf of the circuit's gay employees.
In the case of Judge Reinhardt, this involved not only repeating his earlier explanation of why the Defense of Marriage Act (DOMA) is unconstitutional to the extent that it would block this extension of benefits, but also demolishing the argument that the Justice Department has been making in the pending DOMA challenge brought by Gay & Lesbian Advocates & Defenders in the U.S. District Court in Boston. The DOJ, put in the position of defending a logically indefensible statute, concocted its "neutrality" argument. The argument goes this way. In 1996, in the wake of the Hawaii Supreme Court's same-sex marriage decision and the pending trial of that case, Congress could have enacted DOMA with the intention of keeping the federal government from getting embroiled in the controversial issue of same-sex marriage by preserving the "status quo" of one definition of marriage for all purposes of federal law - a definition that at that time matched the definition used in fact by all the states. DOJ argues that by adopting this uniform definition of marriage for federal law, Congress was being "neutral" in the midst of state-level controversy.
First, Reinhardt notes that this "post hoc justification would not survive the heightened scrutiny that . . . likely applies to Levenson's claim." (This refers to Reinhardt's frequently reiterated conclusion that this is an instance of sex discrimination, which invokes heightened scrutiny under existing precedent, and sexual orientation discrimination, which he argues should invoke heightened scrutiny.) "Even under the more deferential rational basis review, however, this argument fails," he continued. "DOMA did not preserve the status quo vis-a-vis the relationship between federal and state definitions of marriage; to the contrary, it disrupted the long-standing practice of the federal government deferring to each state's decisions as to the requirements for a valid marriage."
"Because state law governs marriage recognition," he continued, "the only consistent definition that could be employed at the federal level is the one that was in effect prior to DOMA. At that point, a marriage recognized as valid by the couple's state of domicile was also recognized as valid by the federal government. DOMA replaced that consistency with a marked inconsistency: under DOMA, a couple can be legally married in their state of domicile but not 'married' for purposes of receiving federal benefits."
"Moreover, even if Congress could be said to have an independent interest in remaining neutral with regard to a contentious social issue, that is not what Congress did here. By enacting DOMA, Congress affirmatively stepped into the fray, and took the position that same-sex partners should not have access to federal benefits no matter what legal status a state decides to accord their relationship. Congress thus sided with those states that would limit marriage to opposite-sex couples, and against those states that would recognize the marriages of same-sex couples. Taking that position did not further any governmental interest in neutrality, if indeed such an interest exists."
As to the remedy for Brad Levenson, Reinhardt said it would be inappropriate to grant Levenson's petition to order the Federal Public Defender program in the Central District of California to make a contract with an insurance company to provide coverage to Levenson and his husband, because the only agency authorized by law to make such contracts for coverage of federal employees is the Office of Personnel Management. The alternative relief Levenson sought, an order that he be compensated for the expense of providing comparable insurance for his partner, did strike Reinhardt as feasible, so that's what he ordered, remanding the case for the federal defender program and Levenson to agree on an amount of "back-pay" and a method for covering those costs going forward. Reinhardt indicated that he would retain jurisdiction of the case to resolve any disputes that might arise in implementing his order, even though he has rotated out of the chairmanship of the dispute panel that would normally hear future cases.
Unlike Reinhardt, who ruled that DOMA was unconstitutional in this context, Kozinski had resolved Karen Golinski's complaint by engaging in some creative interpretation of the statute governing federal employee benefits, finding that it was feasible to interpret it to allow benefits for the same-sex spouse of a court employee. Having ordered back-pay relief to compensate Golinski for the denial of benefits up to the present, Kozinski turned to the question of prospective relief, finding that there are three options: (1) reissue his earlier order that Golinski's wife be enrolled in the federal employee benefits program, (2) order that she be paid the amount necessary to secure comparable coverage for her wife going forward, or (3) do nothing, and let Golinski attempt to bill the government periodically for the continuing coverage, to be enforced by new grievances if the government refuses to pay. Kozinski concluded that the only option that would provide an appropriate remedy was the first.
He concluded that the circuit's employee dispute program had the authority to order OPM to cease interfering, as well as the authority to order that Golinski's wife be enrolled in the program. "For the discrimination she's suffered in the past, I can offer Ms. Golinski only money," he wrote. "The remedy that's 'appropriate' for the future, however, is enrollment of Ms. Golinski's wife into the same program an opposite-sex spouse would enjoy. I see no justification for giving Ms. Golinksi a lesser remedy at substantial taxpayer expense when she can have a full remedy at zero cost to the taxpayers." The reference to "zero cost" comes because Golinski already has her children enrolled, so she is already receiving family coverage. The group insurer that provides the benefits for federal employees in California would not charge the government any additional premium to add an employee's spouse to an existing family coverage enrollment.
Kozinski concluded that because Congress had estalished the system making the employee dispute resolution panels set up by the courts the exclusive way to resolve grievances by court employees, there must follow the power to award appropriate remedies, or "judicial employees who are victims of discrimination would have no remedy at all." He found that OPM's intervention to prevent the implementation of his previous order implicates "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," Kozinski insisted, "and the Executive must henceforth respect the Judiciary's interpretation of the laws applicable to judicial employees. Any other result would prevent the Judiciary from accomplishing its constitutionally assigned functions, by seriously undermining our autonomy over personnel matters."
Kozinski asserted that OPM "may not disregard a coordinate branch's construction of the laws applying to its employees. No less than the other branches of government, the Judiciary is dependent on people to carry out its mission. Barring us from determining, within reasonable bounds, the rights and duties of our personnel under the laws providing for their employment would make us a 'handmaiden of the Executive.' The power both to interpret and execute a law is the power to control those governed by it." He drove home this point by citing to The Federalist Papers.
Kozinski amplified this point by showing how the Judiciary is dependent on a variety of federal agencies to carry out its functions. Nobody would seriously argue that the Treasury Department could refuse to issue paychecks because it disagreed with the pay policies established by the courts for their personnel, so why should OPM be entitled to interfere with this decision about court employees' benefits? Kozinski stated that he did not believe that Congress intended to grant such authority to OPM. He found that the relevant statutes authorized the courts to set up their own workplace complaint resolution system "without interference by the Executive. I therefore conclude that an EDR tribunal's reasonable interpretation of a law applied to judicial employees must displace, for purposes of those employees, any contrary interpretation by an agency or officer of the Executive."
Thus, he concluded, because he had ruled, sitting as an EDR officer, that Golinski was entitled to enroll her wife in the federal employee benefits program, she was so entitled, despite DOMA. "OPM had, and has, no authority to conclude otherwise," he asserted.
So, Judge Kozinski has thrown down the gauntlet to the Executive Branch, and Judge Reinhardt has declared that the Justice Department's main defense of DOMA, advanced in the pending case in Boston, is wrong. The 9th Circuit is in rebellion against the Justice Department's continued obstinate defense of DOMA, a statute that the President has condemned as discriminatory and whose repeal he has advocated (if but faintly so far). In this connection, it is worth noting that Judge Kozinski was appointed to the 9th Circuit by Ronald Reagan and is generally seen as a conservative, but on matters of fairness to the employees of his court, he insists on equality and vindication of rights.
Levenson represents himself pro se. Golinski is represented by Lambda Legal and local cooperating attorneys. The Westlaw report of Kozinski's opinion lists Rita Lin & James R. McGuire of Morrison & Foerster as representing her in the case.
