There has been much written about Office of Personnel Management Director John Berry’s comments this weekend about Ninth Circuit Judge Alex Kozinski’s order relating to a same-sex couple’s health benefits. What’s not being written about is the other Ninth Circuit judge considering a similar dispute, Judge Stephen Reinhardt.
Looking at both of their actions should help disentangle this debate, much of which has been over-inflated and devoid of careful analysis of what is actually going on with the dispute.
This is not an anti-LGBT move by the Administration. It’s a separation of powers fight arising in the form of a rather intricate debate over statutory interpretation.
First, the statutory interpretation dispute.
Ninth Circuit Chief Judge Kozinski’s argument is that federal benefits, under current law, can be provided to the same-sex spouses of employees. The Office of Personnel Management’s long-held view is that this is not permitted under the Federal Employee Health Benefits Act following the passage of the Defense of Marriage Act. Even Professor Arthur Leonard, critical of OPM’s actions here, notes that Kozinski’s opinion only came about “by engaging in some creative interpretation of the statute governing federal employee benefits, finding that it was feasible to interpret it to allow benefits for the same-sex spouse of a court employee.”
In fact, this argument is being made by Gay & Lesbian Advocates & Defenders in its Gill challenge as an alternative argument to striking down Section 3 of DOMA, a point I discussed earlier.
OPM’s position is that the law needs to be changed in order to allow for this coverage. It is for that reason that President Obama’s earlier action to provide benefits to same-sex couples did not include health care benefits and that Rep. Baldwin’s Domestic Partner Benefits and Obligations Act is being pushed forward in the House.
Interestingly, fellow Ninth Circuit Judge Stephen Reinhardt, hearing a similar complaint, reached the same conclusion as OPM. He wrote in February:
I must reluctantly disagree with the view that the FEHBA is ambiguous. I believe instead that the only reasonable reading of that statute is that it does not permit coverage of persons falling outside its definition of family member.
He went on to find, though, that equal benefits should be afforded to the employee in question because DOMA places unconstitutional limitations on the provision of those benefits.
In other words, the judge traditionally thought of as a “liberal” concurs with OPM’s view that the benefit law does not allow for equal benefits to be granted unless the law is changed or DOMA is struck down as unconstitutional. The judge traditionally thought of as a “conservative” has found an interpretation that would allow him to grant the benefits without striking down DOMA.
For some, however, this turns Kozinski into a hero and allows for another attack against the Obama Administration. In doing so, no analysis is complete without noting that liberal legend Stephen Reinhardt has taken the same position as OPM that Kozinski’s interpretation is wrong.
Also, this is not a traditional case, as it is resulting from the employment dispute resolution plan in place in the Ninth Circuit, and Kozinski’s order is issued as the head of the court. Judge Kozinski is is the Chief Judge of the Ninth Circuit and, as such, is responsible for hearing appeals about employee benefit disputes, such as this one, brought by Karen Golinski. Judge Reinhardt came to hear his dispute because he had been serving as the chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders. The person, Brad Levenson, seeking benefits for his husband works for the Federal Public Defender within the Ninth Circuit.
And this is where the separation-of-powers question arises. This dispute really is the inter-branch version of the Secretary of an Executive Department telling OPM to grant benefits to an employee and OPM responding that such benefits are not permitted under federal policy. In an intra-branch dispute, the matter would be over.
Kozinski is acting on behalf of a separate, coordinate branch of government, though, and is of the view that OPM cannot determine the rules for judicial branch employees. From Leonard:
Kozinski asserted that OPM “may not disregard a coordinate branch’s construction of the laws applying to its employees. No less than the other branches of government, the Judiciary is dependent on people to carry out its mission. Barring us from determining, within reasonable bounds, the rights and duties of our personnel under the laws providing for their employment would make us a ‘handmaiden of the Executive.’ The power both to interpret and execute a law is the power to control those governed by it.” He drove home this point by citing to The Federalist Papers.
Reinhardt, seeking to avoid the inter-branch dispute, responded differently. Reinhardt issued “an order that [the employee] be compensated for the expense of providing comparable insurance for his partner.”
In other words, as to the two issues: (1) Kozinski found a statutory interpretation that avoided the constitutional question about DOMA but (2) Reinhardt found a remedy that avoided the constitutional inter-branch dispute.
So, it is entirely possible here to think that Kozinski’s view of the FEHBA statutory interpretation is correct and that the judicial branch is correct in the inter-branch dispute. Both of those positions are reasonable, if in dispute.
But to turn Kozinski’s dispute with OPM into some anti-LGBT action by the Administration stretches the bounds of reality.
And, also important to note is that Reinhardt actually resolved the dispute. Levenson is being compensated. Kozinski’s actions have left Golinski’s dispute unresolved.
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