A single Ninth Circuit judge, in his capacity as chair of the Circuit’s Standing Committee on Federal Public Defenders (“the Standing Committee”), recently ruled in the unpublished decision of In the Matter of Alison Clark that the federal Defense of Marriage Act (“DOMA”) and Oregon’s Measure 36 violate the United States and Oregon Constitutions by unlawfully discriminating against same-sex couples.
Alison Clark, a federal public defender in Oregon, married Anna Campbell in Canada in 2012. Clark’s marriage was not recognized in Oregon, due to Measure 36, a ballot initiative passed in 2004 that defined marriage as between only a man and a woman. In addition, the federal government did not recognize Clark’s marriage, as DOMA similarly defines marriage as a legal union between one man and one woman.
Shortly after her marriage, Clark applied for benefits for Campbell under the Federal Employees Health Care Benefits (“FEHB”) program. After Clark’s application was denied, Clark filed suit, alleging discrimination on the basis of her sexual orientation.
The Standing Committee ruled that Clark was entitled to receive benefits for Campbell under FEHB. First, the Standing Committee found that Clark’s rights under the Employment Dispute Resolution Plan for federal public defenders were violated, because the Plan prohibits discrimination against employees based on sexual orientation. Second, the Standing Committee held that Measure 36 violates the Equal Protection and Due Process Clauses of the Oregon Constitution, concluding that Oregon’s prohibition of same-sex marriage bears no rational relation to any legitimate governmental purpose. Finally, the Standing Committee held that DOMA violates the U.S. Constitution for similar reasons. The Standing Committee rejected proffered justifications for Measure 36 and DOMA such as “encourag[ing] responsible procreation,” “ensur[ing] that children will be raised in stable and enduring families,” and “defending heterosexual marriage,” stating “I can see no objective that is rationally related to banning same-sex marriages, other than the objective of denigrating homosexual relationships. This objective amounts to a desire to harm a minority group and is therefore impermissible . . ..” While this unpublished decision of the Standing Committee does not have precedential value, its reasoning is particularly interesting in light of the U.S. Supreme Court’s current consideration of the constitutionality of DOMA. The decision may also signal movement in the federal courts towards greater recognition of issues associated with sexual orientation in the workplace.