SALEM, Ore. — A federal appellate judge ruled this week the judiciary must grant health care benefits to the same-sex spouse of a federal public defender in Portland.
Ninth U.S. Circuit Court of Appeals Judge Harry Pregerson said in a ruling Wednesday that the court's administrative office discriminated against Alison "Tex" Clark when it refused to add her spouse to Clark's benefit plan. Pregerson ruled that Oregon's same-sex marriage ban — Measure 36, enacted by voters in 2004 — and the federal Defense of Marriage Act are both unconstitutional.
His ruling, however, applied only to Clark because it was an internal administrative decision about a court employee and doesn't overturn Oregon's gay marriage ban. It's the latest in a string of decisions in favor of gay employees of the federal judiciary.
Clark said the ruling was exciting, especially because the judge so forcefully tore down Oregon's gay-marriage ban.
"We had to go to Canada to get married. We weren't allowed to get married in Oregon," Clark said Thursday. "We have to do this separate-but-equal thing and get domestic partnership here, but they get a different name because of Ballot Measure 36. Judge Pregerson says that doesn't meet any kind of rational basis."
Basic Rights Oregon, a gay-rights group, is collecting signatures for a new ballot measure that would repeal Measure 36. If they collect 116,000 valid signatures, it will be on the 2014 ballot.
"The most direct route to making Oregon a place that supports the freedom to marry is for Oregonians to affirm that value on the 2014 ballot," said Amy Ruiz, a spokeswoman for Basic Rights Oregon.
As an assistant federal public defender, Clark is an employee of the judicial branch. She married Amanda Campbell last June in British Columbia and three weeks later applied for federal-employee health benefits for her spouse.
The Administrative Office of the United States Courts denied her request, citing the Defense of Marriage Act, which prohibits federal recognition of same-sex marriages.
A challenge to DOMA is currently pending in the U.S. Supreme Court, along with a 9th Circuit employee's effort to secure spousal benefits for her same-sex partner.
The judge ordered the federal officials to grant Clark's request for benefits or grant her back pay for the cost of purchasing similar benefits. The agency could not be reached after business hours Thursday.
The judge issued his ruling in his capacity as chair of the 9th Circuit's Standing Committee on Federal Public Defenders, not as a federal appellate judge. The opinion is not officially published.
"This does not have the effect of a traditional decisions of the 9th Circuit, both because it was unpublished and because it was issued in an administrative capacity," said Tara Borelli, a lawyer for Lambda Legal, a gay-rights group.
The judge's ruling was first reported Thursday by Willamette Week.