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Kozinski and Reinhardt on DOMA

By Jack M. Balkin

The Defense of Marriage Act of 1996 (DOMA) provides in pertinent part:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ?marriage? means only a legal union between one man and one woman as husband and wife and the word ?spouse? refers only to a person of the opposite sex who is a husband or wife.

DOMA is a pretty nasty law, depriving same-sex spouses of Social Security survivors? benefits and many other protections.

Last month, two prominent Ninth Circuit judges, Alex Kozinski and Stephen Reinhardt, each acting in their capacity as administrators of the courts, declared that DOMA does not preclude the extension of federal insurance benefits to the same-sex spouses of court employees. Kozinski avoided the constitutional issue, which he thought was a serious problem, by construing DOMA not to preclude the extension of benefits. Reinhardt wrote that, if DOMA blocks such benefits, it is unconstitutional. The opinions are here and here.

Both observed that DOMA is constitutionally infirm to the extent that it reflects a bare desire to harm a politically unpopular group, an interest deemed impermissible in Romer v. Evans, in which the Supreme Court struck down a law barring antidiscrimination protection for gay people. (I have been questioning DOMA?s constitutionality on this basis in several places.)

The decisions are significant because, while they are not binding judicial precedent, they are the first time that any federal judge has questioned the constitutionality of DOMA. Decisions by two such respected judges, widely separated on the political spectrum ? Kozinski, the Chief Judge of the Ninth Circuit, is a Reagan appointee who often speaks to the Federalist society, and Reinhardt has been called the most liberal judge on the liberal Ninth Circuit ? have powerful persuasive authority.

Full post as published by Balkinization on February 15, 2009 (boomark / email).