Bench Memos

Sneak Attack on Marriage

If you missed it, go and read William C. Duncan’s article posted at NRO yesterday, on the order of Judge Stephen Reinhardt (yes, he of the oft-rebuked Ninth Circuit) holding the Defense of Marriage Act unconstitutional.  Duncan does not link to Reinhardt’s February 2 opinion, though, nor mention the January 13 order of Judge Alex Kozinski, chief judge of the Ninth Circuit, similarly holding in favor of “spousal” benefits for an individual “married” to a circuit employee under the short-lived ruling of the California Supreme Court.  Judge Kozinski did not opine that DOMA is unconstitutional, but instead offered a (shall we say) creative reading of the Federal Employee Health Benefits Act to avoid DOMA’s application to FEHBA’s beneficiaries.  This, Judge Kozinski said, would enable him to avoid addressing the constitutionality of DOMA, which he called a “hard question” under precedents such as Romer v. Evans and Lawrence v. Texas.

I am not well-schooled in the arcana of federal court administration.  But these kinds of orders, addressing important matters of statutory interpretation and constitutional law, raise (for me anyway) some interesting questions:

1.  In their respective capacities as chief judge (Kozinski) in the case of a circuit court staff attorney, and as designee of the chair of the circuit’s Standing Committee on Federal Public Defenders (Reinhardt) in the other instance, these two judges are not really acting in a judicial capacity but instead in an administrative one.  Is it really appropriate in such a capacity to issue orders with constitutional implications, ruling on the interpretation and validity of acts of Congress, with all the trappings usually marking judicial reasoning, in instances where the judges act solo in their chambers, without referring such questions to their judicial colleagues?

2.  Granting that such orders are not treated as having precedential value for judicial purposes, they nonetheless represent holdings declaring the rights of individuals under federal law and the Constitution.  Is it appropriate for DOMA to apply everywhere in the federal workforce except in the special enclave of employment in the Ninth Circuit?

3.  Since these orders were issued in review of the decisions of human resource managers in the offices of the circuit, they did not arise on appeal from any federal district court in the circuit.  Hence they did not receive the full panoply of actual adjudication, with the concrete adversariness that occurs in courts of law, where a party contests the application of a federal law and the government gets to defend its policy, through its lawyers, in full-fledged written and oral argument before the judges.  These orders were the work of judges-as-supervisors-of-HR-managers, acting in the absence of all the process that marks the legitimate legal work of Article III courts and judges.  Does that seem right?

4.  Are these orders of Judges Kozinski and Reinhardt not then “advisory opinions” on the meaning and constitutionality of federal law, of just the sort that the courts have held since the 1790s to be inappropriate for judges to pronounce?

5.  And so what then, exactly, is the obligation of the Ninth Circuit’s HR managers to pay attention to what the judges have said here?

I’m just asking.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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