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9th Cir Judge: DOMA, Ore. Gay Marriage Ban Unconstitutional

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By William Peacock, Esq. on April 29, 2013 4:17 PM

Most of us are waiting to hear the Supreme Court's thoughts on the Defense of Marriage Act (DOMA) and California's Prop. 8 ban on gay marriage. Judge Harry Pregerson, however, already has an opinion.

Judge Pregerson is the chair of the Ninth Circuit's Standing Committee on Federal Public Defenders. Last week, he issued an unpublished opinion addressing DOMA and a similar Oregon law, finding both laws unconstitutional and ordering that the Administrative Office of the U.S. Courts extend benefits to the spouse of Alison Clark, a Federal Public Defender in Portland, Oregon.

Clark married her partner, Anna Campbell, in British Columbia in June 2012. In her home state and country, her marriage is not recognized. Oregon passed Measure 36, which is a state Constitutional amendment defining marriage as between a man and a woman, in 2004. DOMA, of course, is the federal law that withholds federal benefits to same-sex spouses and also only recognizes heterosexual marriage.

Clark applied for benefits for Campbell under the Federal Employee Heath Care Benefits program. They were denied because the agency uses the DOMA definition of marriage. Judge Pregerson immediately took issue with the agency's decision, stating, "The denial of Clark's request for spousal FEHB benefits was based on Clark's sexual orientation, and thus violates the plan's prohibition of discrimination on the basis of sexual orientation."

His analysis didn't stop with the plan, however. He also opined that Measure 36 failed the rational basis test and stated, "I can see no objective that is rationally related to banning same-sex marriages, other than the objective of denigrating homosexual relationships. This amounts to a desire to harm a minority group and is therefore impermissible under Romer and Cleburne.

Note that this was not a direct challenge to Measure 36. According to the Statesman Journal, the measure has never faced a direct appeal in court. However, Judge Pregerson's analysis relied upon the existence of a valid marriage, which necessitated the consideration of Measure 36's constitutionality.

DOMA faced a similar fate in the opinion. Applying the rational basis test and citing the First Circuit's landmark decision on the matter, Pregerson also found DOMA unconstitutional under the Equal Protection and Due Process Clauses.

His order requires the Director of the Administrative Office of the U.S. Court to process Clark and Campbell's benefits as well as all future requests without regard to either the sex of the listed spouse or regard to whether a validly executed same-sex marriage is recognized by a state.

If such relief is blocked by the Office of Personal Management, Judge Pregerson ordered monetary damages for Clark based on denied "pay, allowances, or differentials" under the Back Pay Act.

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