Wednesday, December 9, 2009

The 9th circuit and DOMA

As I told you previously, a justice of the 9th circuit has ordered the Federal Govt to give one of the court's employees benefits for her (same sex) spouse.

Of course, the Office of Personnel and Management had previously refused to obey. The irony now is that the head of OPM, John Berry, is gay. Will he do as told?

LawDork is on the case.
Ninth Circuit Chief Judge Kozinski’s argument is that federal benefits, under current law, can be provided to the same-sex spouses of employees. The Office of Personnel Management’s long-held view is that this is not permitted under the Federal Employee Health Benefits Act following the passage of the Defense of Marriage Act. ....

OPM’s position is that the law needs to be changed in order to allow for this coverage. It is for that reason that President Obama’s earlier action to provide benefits to same-sex couples did not include health care benefits and that Rep. Baldwin’s Domestic Partner Benefits and Obligations Act is being pushed forward in the House.

Interestingly, fellow Ninth Circuit Judge Stephen Reinhardt, hearing a similar complaint, reached the same conclusion as OPM.....

In other words, the judge traditionally thought of as a “liberal” concurs with OPM’s view that the benefit law does not allow for equal benefits to be granted unless the law is changed or DOMA is struck down as unconstitutional. The judge traditionally thought of as a “conservative” has found an interpretation that would allow him to grant the benefits without striking down DOMA....

Reinhardt issued “an order that [the employee] be compensated for the expense of providing comparable insurance for his partner.”,,,,

Reinhardt actually resolved the dispute. Levenson is being compensated. Kozinski’s actions have left Golinski’s dispute unresolved.

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