This week, there was a new development in a California case where a federal judge on the U.S. Court of Appeals for the Ninth Circuit in February ruled the Defense of Marriage Act unconstitutional. The Los Angeles Times  reports the new development:
In a legal end-run around the 1996 Defense of Marriage Act, a federal judge Wednesday ordered compensation for [Brad Levenson,] a Los Angeles man denied federal employee benefits for his spouse because they are both men. ...
[In February, U.S. 9th Circuit Court of Appeals Judge Stephen] 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.
As reported on this blog back in February , this case is less than it might seem at first blush. DOMA remains the law of the land. Rather than being a traditional court case, this is an internal employee grievance procedure within the office of federal public defenders of the Ninth Circuit. As a result, the judge is not acting in his capacity as a judge. Instead, he is acting in his capacity as the designated administrative decision-maker for the Ninth Circuit's Standing Committee on Federal Public Defenders.
Since it's not a traditional court case, it imposes no binding precedent and is not going to be appealed to the Supreme Court.
Nevertheless, the new order  does add an important new element to the conversation over DOMA's constitutionality. And coming from a federal circuit court judge, its reasoning has resonance, even if it is not binding precedent.
In the new order, Judge Reinhardt repeats his February analysis of DOMA's constitutional infirmities, rejecting various arguments in its favor. He also addresses a new argument and determines that it, too, fails under the rational basis level of scrutiny, the easiest of standards to meet:
Recently, the government has advanced an additional argument in defense of DOMA: that the statute serves a legitimate governmental interest in maintaining a consistent definition of marriage at the federal level for purposes of distributing federal benefits while individual states consider how to resolve the issue of marriage equality for same-sex couples. ... Even under the more deferential rational basis review, however, this argument fails. DOMA did not preserve the status quo vis-à-vis the relationship between federal and state definitions of marriage; to the contrary, it disrupted the long-standing practice of the federal government deferring to each state's decisions as to the requirements for a valid marriage. ...
Congress thus sided with those states that would limit marriage to opposite-sex couples, and against those states that would recognize the marriages of same-sex couples. Taking that position did not further any government interest in neutrality, if indeed such an interest exists.
And just where did this additional argument come from? From Barack Obama's very own Justice Department.
Equality cannot wait. It's time to dump DOMA .