Font Size: 
Gay Marriage Gets Boost From 9th Circuit
The Recorder
November 23, 2009
Not one to be left out of a constitutional thicket, 9th U.S. Circuit Court of Appeals Chief Judge Alex Kozinski granted health benefits Thursday to the same-sex partners of court employees.
Kozinski's order comes a day after his colleague, Judge Stephen Reinhardt, issued his own published directive that a federal public defender be awarded back pay because his same-sex partner's benefits had been denied.
Reinhardt found that the federal Defense of Marriage Act -- which specifies marriage as a heterosexual union -- violates constitutional due process protections. Kozinski sidestepped that issue; instead he excoriated Obama administration officials for countermanding Kozinski's earlier order granting benefits to the spouse of court staff attorney Karen Golinski. Earlier this year, the Office of Personnel Management told Blue Cross -- the court's carrier -- to ignore Kozinski's order. That executive branch action violated the separation of powers doctrine, Kozinski wrote Thursday.
"Some branch must have the final say on a law's meaning. At least as to laws governing judicial employees, that is entirely our duty and our province," Kozinski wrote. "We would not be a co-equal branch of government otherwise."
The Obama administration must now decide whether to appeal Kozinski's order. According to circuit benefits rules, the Judicial Council of the 9th Circuit would hear it, said James McGuire, the Morrison & Foerster partner representing Golinski.
That changes the dispute from a bout of intellectual jousting by Kozinski and Reinhardt (who are close friends), to a much broader political question over gay rights, said Rory Little, a Hastings College of the Law professor.
"When it's [Kozinski] versus Reinhardt, it's a competition. When it's the judiciary versus the executive branch, [they're] arm in arm," Little said. "This is like throwing a dead fish into the lap of the Obama administration."
The Justice Department said late Thursday afternoon that it was reviewing the order. McGuire said his client is "obviously very pleased."
Reinhardt and Kozinski heard both of the matters together earlier this year, McGuire said, after they issued their first unpublished orders. OPM did not participate, he said.
This week, both of the judges issued their orders for publication, meaning they can be cited in other cases -- including the federal challenge to Prop 8 currently under way in San Francisco district court. Even though the Kozinski opinion isn't directly on point, Little said this opinion makes it safe to assume he would vote in favor of gay marriage. As chief judge, Kozinski is included on all en banc panels.
In the Prop 8 case, a separate 9th Circuit panel Thursday declined to let an ultraconservative group intervene alongside the official Yes on 8 campaign. The ruling upheld an order from Northern District of California Chief Judge Vaughn Walker.
