The Executive Committee of the Ninth Circuit Judicial Council has ruled that a federal law clerk in Oregon who was denied health benefits for her same-sex domestic partner was discriminated against and must be compensated. Margaret Fonberg will receive back pay to offset the discrimination she experienced for the years since she applied for the benefits in 2010.
The decision navigates the confusing conflict between how states and the federal government recognize same-sex relationships since the Supreme Court overturned the Defense of Marriage Act (United States v. Windsor). Oregon does not offer marriage, but does recognize and provide benefits to same-sex domestic partners. The federal government now recognizes same-sex marriages performed in states where they are legal, but the Office of Personnel Management (OPM) does not recognize civil unions or domestic partnerships. The ruling indicates that this conflict creates fault on both ends: Oregon is discriminating by not providing Fonberg with marriage and the federal government is discriminating by limiting what they’ll recognize to relationships called “marriages”:
Fonberg and her partner are treated different in two ways. First, they are treated differently from opposite-sex partners who are allowed to marry and thereby gain spousal benefits under federal law. This is plainly discrimination based on sexual orientation, which the District of Oregon’s EDR Plan prohibits. They are also treated unequally vis-à-vis same-sex couples in other states in the circuit, who may marry and thus gain benefits under Windsor. This violates the principle that federal employees must not be treated unequally in the entitlements and benefits of federal employment based on the vagaries of state law. Here, Oregon law suffers from precisely the same deficiency that the Supreme Court identified in Windsor with respect to the Defense of Marriage Act. Both these forms of discrimination are prohibited under the Oregon EDR Plan.
Unfortunately, this decision does not have have any clear implications for current ongoing litigation, but could impact future challenges that pit domestic partnerships or civil unions against marriage.
The Ninth Circuit previously issued a similar opinion for Karen Golinski, a California attorney for the Ninth Circuit Court of Appeals who applied for health benefits for her same-sex partner and was denied. Chief Judge Alex Kozinksi, who was also on the panel in Fonberg’s decision, ruled that Golinski was entitled to benefits and could sue OPM. That suit was ultimately dismissed after DOMA was overturned.