Here’s another adventure, courtesy of Ninth Circuit Judge Stephen Reinhardt.
Awhile back, in an administrative order, Reinhardt found that a federal public defender was unconstitutionally denied health insurance benefits for his same-sex spouse. Today, the judge decreed that the FPD, Brad Levenson, receive back pay. But in an interesting little wrinkle, this latest missive (.pdf), was issued “for publication.”
According to Ninth Circuit rule 36-5: “An order may be specially designated for publication… and when so published may be used for any purpose for which an opinion may be used.” Clearly, Reinhardt is trying to lay some friendly precedential groundwork for the federal challenge to Prop 8, which is currently before Northern District Chief Judge Vaughn Walker. In his ruling, Reinhardt calls the federal Defense Of Marriage Act — which court administrators had cited to deny Levenson benefits — a violation of due process. Same-sex individuals deserve some form of heightened scrutiny, Reinhardt wrote.
Early X-Mas gift for the gay-marryin' types, after the jump ...
Moreover: “The denial of benefits here cannot survive even rational basis review, the least searching form of constitutional scrutiny.”
Reinhardt does offer a bit of covering language, writing that the state’s right to deny an individual the fundamental right of marriage to be “beyond the scope” of this opinion. But then, check out this bit.
“Discouraging gay marriage serves only to force gay couples to live in a ‘state of sin’ rather than in a lawfully-recognized ‘state of connubial bliss’ that encourages a long-enduring permanent relationship that, in turn, serves as the basis of a state-recognized family,” Reinhardt wrote. “Thus, rather than encouraging morality, the denial of fair and equal treatment to gay and lesbian couples encourages immorality, at least to the extent that it can be said to have any effect at all on decisions about whether and whom to marry.”
Ball’s in your court, Chief Judge Walker!
— Dan Levine