Benefits for married gays ? the Ninth Circuit speaks

As reported in the LA TImes

A federal judge today ordered compensation for a Los Angeles couple denied spousal benefits by the federal government because they are gay men.

U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt deemed the denial of healthcare and other benefits to the spouse of federal public defender Brad Levenson to be a violation of the Constitution's guarantee of due process and discrimination on the basis of sexual orientation, which is prohibited by California state law......

Two same sex couples, employees of the Federal Courts, had each married during the Californian Interregnum. Each filed a complaint when they weren't allowed to insure their spouse. By law, such complaints are adjucated by the court, and in each case, the responsible judge ordered that these legally married spouses should have benefits.

But the Federal Government Office of Personnel and Management (OPM) balked, because of DOMA. They told the insurance company not to process the benefits.

So Judge Reinhardt has ruled that if Mr Levenson and his husband can't get benefits, they need to get compensation equivalent to the value of the coverage that was denied. The judge is Not Happy that the Fed disobeyed his order.

The judge's order is expected to resolve the injustice Reinhardt has cited in previous orders in Levenson's case. But it also recognizes the status quo of federal government rejection of gay marriage under the Defense of Marriage Act. Several other challenges by those denied federal benefits, like filing joint tax returns, are making their way slowly through the federal courts.

(That would be Gill et al which we've discussed. More on that next week).

Now, something very interesting here is that another Judge on the Ninth Circuit, Chief Kozinski, had similarly found for HIS staffer, and like Judge Reinhardt, ordered her to be given benefits. He is quite annoyed that the order was ignored, or rather, that OPM interfered. He has now come back with a new order (PDF) too. In fact, he's gone further than Judge Reinhardt, and rather than simply ordered compensation, he's taking on the executive.

OPM's actions implicate an even more fundamental concern: 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, and the Executive must henceforth respect the Judiciary's interpration of the laws applicable to judicial employees. ....

He goes on to scold OPM and the executive in no uncertain terms about interfering in the equal branch of the judiciary. And he makes it very clear and unambiguous:

I have determined that, even as limited by DOMA, the FEHBP permits judical employees to provide health insurance coverage to their same-sex spouses....

Hat-tip Dr Primrose, a commenter on Friends of Jake.