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Anti-DOMA Ruling Exposes Reinhardt’s Anti-Prop 8 Opinion



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One good thing that can be said about a federal district-court ruling last week against the Defense of Marriage Act is that the ruling explodes Judge Stephen Reinhardt’s (already implausible) claim that his anti-Prop 8 opinion this past February in Perry v. Brown rests “on narrow grounds.”

In Dragovich v. United States Department of the Treasury, Judge Claudia Wilken of the Northern District of California granted summary judgment to same-sex spouses and registered domestic partners who challenged their exclusion from a long-term care insurance plan that the state of California established for state employees. California made these exclusions in order to qualify the plan for favorable federal tax treatment for participants.

In her ruling, Judge Wilken, purporting to apply rational-basis review, ruled that (1) section 3 of the Defense of Marriage Act, which maintains the traditional definition of “spouse” for purposes of provisions of federal law, “violates the equal-protection rights of Plaintiff same-sex spouses,” and (2) the provision of the Internal Revenue Code (26 U.S.C. § 7702B(f)(2)(C)) that establishes the criteria for plans that qualify for favorable federal tax treatment “violates the equal protection rights of Plaintiff [same-sex] registered domestic partners.” Specifically, Wilken declares that “both provisions are constitutionally invalid to the extent that they exclude Plaintiff same-sex spouses and registered domestic partners from enrollment in the [state] long-term care plan.”

Some observations:

1. Judge Wilken relies heavily on Reinhardt’s Perry opinion. Most notably, she cites it in support of the proposition that “there is no principled distinction between anti-gay animus and a conception of civil marriage that cannot tolerate equally committed  same-sex couples” (p. 23)—the proposition that is central to her conclusion that section 3 of DOMA cannot survive rational-basis review. Her reliance confirms what any careful reading of Perry ought to make clear—that Reinhardt’s reasoning, if accepted, would compel the invention of a federal constitutional right to same-sex marriage.

All the more reason for the Ninth Circuit to grant review of the pending petition for en banc rehearing in Perry—and, failing that, for the Supreme Court to review Reinhardt’s ruling.

2. In ruling that the Internal Revenue Code provision violates the equal-protection rights of same-sex registered domestic partners, Wilken relies heavily on the daffy Ninth Circuit ruling last September in Diaz v. Brewer. The Ninth Circuit has already denied en banc rehearing of that ruling. Summary reversal by the Supreme Court would be in order.

3. Neither of the provisions that Wilken finds constitutionally invalid in fact bars the state of California from extending long-term care insurance to same-sex spouses and registered domestic partners of state employees. California could set up a plan that provides that coverage. That plan, to be sure, wouldn’t qualify for favorable federal tax treatment for its participants. But this point shows that what is really at issue is whether federal taxpayers—including the many taxpayers in states that retain traditional marriage laws—should be compelled to subsidize California’s provision of long-term care insurance to same-sex spouses and registered domestic partners.



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