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.
Levenson married his longtime partner, Tony Sears, on July 12, 2008, during the five-month period when same-sex marriage was legal in California. A ballot measure, Proposition 8, was passed a year ago defining marriage as between one man and one woman.
Reinhardt, who is the federal judge responsible for resolving employee disputes in the Federal Public Defenders office within the 9th Circuit, had earlier ordered the Administrative Office of the U.S. Courts to process Levenson's application for spousal benefits for Sears. The federal government's Office of Personnel Management stepped in to derail the enrollment, however, citing the 1996 Defense of Marriage Act that prohibits the recognition of same-sex marriage for the purpose of federal benefits or programs.
Levenson appealed, seeking either an independently contracted benefits package for his spouse or payment of the equivalent value of the coverage denied. Reinhardt ordered the latter, based on a "back pay" provision in the law covering federal defense lawyers' employment.
"Considering that the federal government won't give Tony the equal benefits package of other spouses, we are very pleased with this decision," said Levenson. "Is it equal treatment? No. Is it a good remedy? Yes. And we are appreciative of the judge's order."
Levenson said he and Sears have been keeping track of the costs of insuring Sears independently and estimate the back pay and future compensation will amount to thousands of dollars each year.
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.
The Obama administration has spoken out against what it sees as a discriminatory policy toward gay spouses of federal employees but Atty. Gen. Eric Holder has also said his office is obliged to defend the practice as long as the Defense of Marriage Act remains law.
As to Florida’s place in all this, I go back to the case I won and lost and won again in Broward County not too long ago. Suing for compensation for gay spouses, the Circuit Court (Judge Leroy Moe) ruled I could make a spousal rights claim based on the Domestic Partnership Law of Broward County.
The Defendant, the State of Florida, appealed to the DCA and the count for consortium was struck, at least in part, because of the state law which bars gay marriage, noting another DCA's adverse ruling on the issue. To that we have now added a neanderthal state constitutional amendment potentially restricting the right of municipalities to pass laws which treat gay couples as married couples. This threatens even domestic partnerships.
So once again Florida law is decades behind the more progressive states. Of course, this is the only state where gays and lesbians cannot adopt children. Anita Bryant’s legacy still lives in the Sunshine State of Sadness.
Most of this AP article should be sourced and credited to Carol J. Williams
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