The Los Angeles Times reports on a ruling in the U.S. 9th Circuit Court of Appeals that could lead to the invalidation of the Defense of Marriage Act. The Act, which I’ve written about previously, essentially allows states not to recognize same sex marriages performed in other states and also defines marriage for federal purposes as being only between heterosexual couples.
Judge Stephen Reinhardt of the U.S. 9th Circuit Court of Appeals ruled earlier this week that Sears — who married Levenson, a deputy federal public defender, last July — is entitled to the same spousal benefits that heterosexual couples employed by the department receive.
Reinhardt’s ruling branded the Defense of Marriage Act unconstitutional. The 9th Circuit’s chief judge, Alex Kozinski, also weighed in on the subject last month, granting benefits to the same-sex spouse of a staff attorney for the court. But he stopped short of basing that decision on constitutional grounds.
Despite the prominence of the two judges, the rulings are legally meaningless for all but the two couples because they came in the court’s administrative dispute process, rather than in lawsuit judgments.
The 9th Circuit judges ruled in their capacity as dispute-resolution officials within the federal judiciary, whose employees are prohibited from suing in federal court.
But legal analysts see the judges’ orders as an indication that the Defense of Marriage Act is unlikely to stand up to the constitutionality test if it reaches a federal court.
What this ends up meaning is unclear at this time. For instance federal law’s Title VII does not include sexual orientation as a protected class in labor discrimination — whereas NJ’s Law Against Discrimination does — and the federal courts have not seen fit to add that protection. But times change and so do court rulings (separate but equal was once the law of the land). Stay tuned.