Gay couple win ruling

In a legal end-run around the 1996 Defense of Marriage Act, a federal judge Wednesday ordered compensation for a Los Angeles man denied federal employee benefits for his spouse because they are both men.

Brad Levenson, a lawyer with the federal public defender’s office, had applied for and been denied healthcare coverage and other benefits for Tony Sears after their July 12, 2008, marriage. Same-sex marriage was legal in California for five months last year, until voters passed Proposition 8, which defines marriage as between one man and one woman.

U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt had previously ruled the denial of benefits for Sears to be discrimination on the basis of sexual orientation, a violation of state law and an unconstitutional denial of due process.

Reinhardt, who is responsible for resolving employee disputes for public defenders within the 9th Circuit, had ordered the Administrative Office of the U.S. Courts to process Levenson’s application for spousal benefits. But the federal Office of Personnel Management stepped in to derail the enrollment, citing the Defense of Marriage Act, which prohibits federal government recognition of same-sex marriage.

Levenson appealed, seeking either an independently contracted benefits package for Sears or compensation for the costs they incurred in the absence of coverage. Reinhardt ordered the latter, based on a back pay provision in the law governing federal defenders’ employment.

“Considering that the federal government won’t give Tony the equal benefits package of other spouses, we are very pleased with this decision,” Levenson said. “Is it equal treatment? No. Is it a good remedy? Yes. And we are appreciative of the judge’s order.”

Levenson said he and Sears have been keeping track of the costs of the benefits denial and they estimate the judge’s compensation order will amount to thousands of dollars each year.

Reinhardt’s ruling should resolve what he deemed an injustice in Levenson’s case. But it also recognizes the status quo of federal government rejection of gay and lesbian marriages.

Obama administration officials have spoken out against what they consider a discriminatory policy toward same-sex spouses of federal employees. But Atty. Gen. Eric Holder has said his office is obliged to abide by the Defense of Marriage Act as long as it remains law.

Several other challenges to the Defense of Marriage Act are making their way through the federal courts but will take years to reach the Supreme Court for a judgment on the law’s constitutionality.

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