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.
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.
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.