9th circuit orders on benefits for same-sex spouses

Courtesy of How Appealing, here and here are the two orders that Tom mentioned the other day.

I am not sure of the precedential weight of these orders, although the orders seem limited to the operation of the benefit plans for federal employees in the Ninth Circuit. I don't think Chief Judge Kozinski's statutory ambiguity argument is very persuasive. I agree with Judge Reinhardt that federal law doesn't permit coverage of the same-sex spouses and that the constitutional issue is unavoidable.

Judge Reinhardt's constitutional conclusion is questionable, although I suppose it should be no surprise that people might disagree about the meaning of Justice Kennedy's opaque opinion in Lawrence. Is it really true that DOMA fails the rational basis test? I suppose that is true if Lawrence applied the rational basis test but that doesn't seem the most persuasive reading of Lawrence. Justice Kennedy was surely applying a form of heightened scrutiny although he didn't go to the trouble of telling us exactly what level of scrutiny he applied. Judge Reinhardt takes the view that promoting traditional morality isn't enough of a reason although that seems only true if a form of heightened scrutiny is being applied.

Perhaps these orders indicate again that there is a need for the Court to clarify the meaning of Lawrence.

Richard M.