In an adventuresome administrative ruling, the three-judge Judicial Council of the Ninth Circuit Executive Committee has concluded that an unmarried court employee with a same-sex domestic partner was entitled to federal marital benefits. This, alas, is not the first time that Ninth Circuit chief judge Alex Kozinski has exercised his non-judicial administrative authority to carry out a sneak attack on marriage.
Here’s the relevant background:
After the federal Office of Personnel Management denied Fonberg’s attempt to enroll her domestic partner in her health plan, she filed a complaint under the District of Oregon’s employment dispute-resolution plan. Acting in her administrative capacity, the chief judge of the District of Oregon ultimately ruled that Fonberg was not entitled to relief.
Fonberg sought review of that adverse ruling before the Judicial Council of the Ninth Circuit Executive Committee, consisting of Kozinski, Ninth Circuit judge Richard Clifton, and federal district judge Ralph Beistline. In a four-page unsigned administrative order, those three judges (all Republican appointees) held that Fonberg is entitled to be reimbursed for back pay (measured, I gather, by the value of the spousal benefits not received).
1. The panel determines that Fonberg has been discriminated against on the basis of sexual orientation in two ways. First, she and her partner “are treated differently from opposite-sex partners who are allowed to marry and thereby gain spousal benefits under federal law.” Second, they “are also treated unequally vis-à-vis same-sex couples in other states in the circuit, who may marry and thus gain benefits under Windsor” (the Supreme Court’s decision invalidating the Defense of Marriage Act). “This violates the principle that federal employees must not be treated unequally in the entitlements and benefits of federal employments based on the vagaries of state law.”
a. The panel asserts that Fonberg and her partner “are treated differently from opposite-sex partners who are allowed to marry.” But that assertion is sloppy. Fonberg and her partner are treated differently from opposite-sex partners who are married. That differential treatment is based on marital status, not on sexual orientation, as unmarried opposite-sex partners also don’t receive federal marital benefits.
Further, the panel’s ruling merely creates another form of differential treatment: between same-sex partners (who can’t marry under state law but who are entitled to benefits whether or not they would want to marry) and opposite-sex partners (who aren’t entitled to benefits). Can an unmarried employee now complain of workplace discrimination in not receiving health benefits for her opposite-sex partner? Or are same-sex partners somehow entitled to invoke a presumption that they would marry if they could? (As the panel notes, there is no indication that Fonberg and her partner “are married in any other jurisdiction.”)
b. The panel’s second ground so dramatically extends Windsor that it defies Windsor. Recall that it’s far from clear (as I discuss in point 3 here) that Windsor’s rationale would require that a person who enters into a same-sex “marriage” in one state be deemed married for purposes of federal law when he lives in a state that retains the traditional definition of marriage. But under the panel’s reasoning, a person who is merely registered as a same-sex domestic partner is entitled to federal marital benefits.
Justice Kennedy’s majority opinion in Windsor objects to the failure of federal law to treat as marriages those relationships that a state has “found it proper to acknowledge and protect” as marriages. Kennedy complains that DOMA “undermines both the public and private significance of state-sanctioned same-sex marriages.” (Emphasis added.) How does treating as marriages those relationships that a state has not “found it proper to acknowledge and protect” as marriages respect Windsor?
Further, the panel’s logic would seem to mean that in a state that doesn’t have a domestic-partnership regime any person in a same-sex relationship would be entitled to federal marital benefits. Any other conclusion would “violate the [supposed] principle that federal employees must not be treated unequally in the entitlements and benefits of federal employments based on the vagaries of state law.”
(Oddly, while the panel notes that the District of Oregon’s plan didn’t bar sexual-orientation discrimination at the time Fonberg filed her complaint, it doesn’t bother to explain why the plan’s later amendment should be applied retroactively.)
2. On the separate question of discrimination on the basis of sex: The panel declares, in a single sentence, that OPM’s position that employees in same-sex domestic partnerships are not entitled to federal marital benefits draws a distinction “based on the sex of the participants in the union” and thus “amounts to discrimination on the basis of sex … and, under Windsor, constitutes a deprivation of due process and equal protection.”
But this makes no sense. OPM doesn’t draw a distinction “based on the sex of the participants in the union.” OPM denies federal marital benefits to unmarried persons, whether they are in same-sex relationships or opposite-sex relationships.
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As I understand it, OPM is not obligated to comply with the Judicial Council’s administrative ruling, either on Fonberg’s complaint or as a more general practice. (Fonberg’s recourse would instead be to sue OPM in federal court.) Let’s hope that OPM rejects this latest Ninth Circuit hijinx.