9th Circuit Appeals Court Judge Orders Equal Benefits for Same Sex Married Oregon Federal Public Defender: Calls Oregon Ban on Same Sex Marriage Irrational and Unconstitutional

In a clear and elegant order, 9th Circuit Court of Appeals Judge Harry Pregerson ruled today that assistant federal public defender Alison “Tex” Clark is entitled to employment benefits for her female spouse, Anna Campbell, equal to those employees who are married to a person with a different sex.  Clark and Campbell were married in Canada.

Judge Harry Pregerson ruled that the Federal Public Defender that would deny equal benefits to her and her same-sex spouse violates Clark’s rights under the Federal Employee Health Benefits Employee Dispute Resolution Plan because it discriminates against her on the basis of her sexual orientation.

Judge Pregerson also noted that Oregon, where Clark lives, has a constitutional ban on same sex marriage, the result of a state wide initiative Measure 36 from 2004.   Relying on Supreme Court precedent, Pregerson found that Oregon’s Measure 36 was an irrational law, with no reasonabe or legitimate governmental objective.

Judge Pregerson stripped any possible government interest that could be proffered:

1.  Responsible procreation.  “Denying same sex couples the status of marriage will not discourage their procreation.  Instead, it will lead to children being born out of wedlock to these couples.”

2.  Children are better off in stable and enduring families.  “Without same sex marriage, fewer couples can be married and hence, there are fewer couples who can provide a stable marital environment for their children.”

3.  We need to proceed with caution.  As with California’s Proposition 8, “the purpose and effect of [Measure 36] was to eliminate the right of same-sex couples to marry in [Oregon] – not to suspend or study that right.”

Judge Pregerson ruled that Oregon’s denial of Clark’s and Campbell’s validly executed Canadian marriage violates their substantive due process rights, as well as their equal protection rights.

Judge Pregerson ruled that government cannot rely on DOMA, either, in denying equal benefits to same-sex married couples.  Citing Loving v. Virginia, Pregerson reminds us that marriage is a fundamental right, and to discriminate against someone based on her marital status violates fundamental due process.

He further dismisses DOMA as being, like Oregon’s Measure 36, not rationally related to a legitimate government purpose.

While this is a victory for Ms. Clark, and for her spouse, Anna Campbell, Judge Pregerson’s decision is limited to Ms. Clark and her benefits because these rulings were made as a judge overseeing, and deciding, issues related to employee benefits within this government entity.  He was not acting in his capacity as an Article 3 judge and his opinion was not “published” as a case with precendential effect.  Therefore, his ruling does not invalidate Oregon’s discriminatory constitutional ban on same-sex marriage and it does not apply to other federal government agencies.  Nonetheless, his ruling provides a good read that can be cited as reasoning in other cases.

Congratulations to Alison “TEX” Clark and to Anna Campbell for advancing equality!

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