Ninth Circuit judge declares DOMA, Oregon’s marriage equality ban unconstitutional in administrative ruling
April 29, 2013
By Jacob Combs
A judge on the Ninth Circuit Court of Appeals held last week that the federal judiciary discriminated against an lesbian assistant federal public defender in Portland when it refused to recognize her Canadian marriage, the Williamette Week reported last Thursday. In his ruling, Judge Harry Pregerson held that both Oregon’s marriage equality ban and the federal Defense of Marriage Act violate the U.S. Constitution.
The assistant public defender, Alison Clark, married her partner, Anna Campbell, in British Columbia last June. She then applied for her wife to receive benefits under the Federal Employees Health Care Benefits (FEHB), which was denied because of DOMA, the federal law which prohibits the federal government from recognizing marriages between same-sex couples. Clark then filed a complaint in the courts’ Employment Dispute Resolution Plan alleging discrimination on the basis of sexual orientation.
In his decision, Pregerson wrote that heightened scrutiny should apply to Clark’s discrimination claim, but held that Oregon’s Measure 36 (the ballot measure which placed a marriage equality ban in the Oregon Constitution) fails even the most referential rational basis test. “Oregon does not state any reason for preventing same-sex couples from marrying,” he wrote.
Judge Pregerson analyzed three purported reasonings for marriage equality bans, specifically citing the similar justifications put forward for Proposition 8, California’s equal marriage prohibition. Restricting marriage to opposite-sex couples, he wrote, does not promote ‘responsible procreation,’ does nothing to ensure children will be raised in stable families, and does not ‘proceed with caution’ on the issue of marriages for same-sex couples. “I can see no objective that is rationally related to banning same-sex marriages,” Judge Pregerson wrote, “other than the objective of denigrating homosexual relationships.”
In his decision, Pregerson held that Oregon’s Measure 36 also violates Clark and Campbell’s due process rights as well as their equal protection rights, citing language from Loving v. Virginia that the right to marry is one “of fundamental importance for all individuals” as well as the Supreme Court’s landmark sodomy ruling in Lawrence v. Texas.
After declaring Measure 36 invalid, Judge Pregerson’s opinion also examined DOMA, again using rational basis review, and found that the law’s denial of benefits to same-sex couples violates both the equal protection and due process provisions of the U.S. Constitution. In his conclusion, Pregerson ordered the Administrative Office (AO) of the United States Court to accept Clark’s claim, and instructed the AO to process future benefits requests “without regard to (1) the sex of a listed spouse and (2) whether a validly executed same-sex marriage is recognized by state.” Absent that relief, Pregerson ordered the AO to grant Clark back pay to purchase the coverage on her own.
Pregerson’s ruling was not officially published, and was made in his capacity as chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders and not a Ninth Circuit judge. “This does not have the effect of a traditional decision[] of the Ninth Circuit,” Lambda Legal’s Tara Borelli told the AP, “both because it was unpublished and because it was issued in an administrative capacity.” Because of that, the decision will have no effect on the enforcement of Measure 36 or DOMA, and will hold no precedential weight in future litigation.
In February, the Portland-based gay rights group Basic Rights Oregon announced that it was launching a petition drive to place a constitutional amendment on the November 2014 ballot that would allow same-sex couples to marry in the state. If the measure is approved, Oregon voters would be the first in the nation to place a marriage equality ban in their state constitution by a popular vote and later repeal it by another vote. Earlier this month, BRO won a victory from Oregon’s Attorney General on the ballot measure’s language, which equal marriage opponents had sought to amend.
You can read Judge Pregerson’s full ruling here, courtesy of the Willamette Week.
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