                  FOR PUBLICATION
              JUDICIAL COUNCIL
            OF THE NINTH CIRCUIT

                                      
                                      
IN THE MATTER   OF   BRAD LEVENSON

                                              ORDER

                     Filed February 2, 2009

         Before: Stephen Reinhardt, Circuit Judge.


                           ORDER

REINHARDT, Circuit Judge:

                           Overview

   Brad Levenson, a deputy federal public defender in the
Office of the Federal Public Defender for the Central District
of California (“FPD”), married Tony Sears on July 12, 2008,
in accordance with California law. Three days later, Levenson
requested that Sears be made a family member beneficiary of
his federal health, dental, and vision benefits (hereinafter
“federal benefits”). Levenson’s request was denied on the
ground that his spouse is male and the federal Defense of
Marriage Act (“DOMA”), 1 U.S.C. § 7, prohibits the provi-
sion of federal benefits to same-sex spouses. Levenson filed
a complaint with the FPD, alleging that the denial of benefits
violates the Ninth Circuit’s Employment Dispute Resolution
Plan for Federal Public Defenders and Staff (“EDR Plan”),
which expressly prohibits discrimination on the basis of sex
and sexual orientation, as well as the United States Constitu-
tion. For the reasons explained below, I agree, and direct the
Director of the Administrative Office of the United States
Courts to submit Levenson’s Health Benefits Election form

                               1
2                    IN THE MATTER    OF   LEVENSON
2809 to the appropriate health insurance carrier, and to pro-
cess his request for FEDVIP coverage.

                                 Facts

   Brad Levenson has been a deputy federal public defender
in the FPD since July 11, 2005. He and Tony Sears have been
partners for 15 years. They registered their domestic partner-
ship on March 16, 2000, and were married in California on
July 12, 2008. On July 15, 2008, Levenson requested that his
husband be added as a family member beneficiary of his fed-
eral benefits. That request was denied on the basis of a memo-
randum prepared by the Office of the Circuit Executive
stating that the provision of benefits to same-sex spouses is
prohibited by DOMA. According to the memorandum:

        [T]he federal government does not recognize a
        same-sex union as marriage for any purpose, even if
        the state law recognizes such unions as marriages.

           Judicial Branch employees work for the federal
        government. The federal law defines a federal
        employee’s rights to health benefits, and those bene-
        fits are delivered through the Federal Employee
        Health Benefits (FEHB) program. For this reason,
        we can not [sic] extend any health benefits beyond
        those prescribed by federal law.

Levenson alleges that this denial violates the EDR Plan, as
well as the Constitution.

  The EDR Plan was adopted by the Ninth Circuit Judicial
Council “to provide rights and protections to employees of the
Federal Public Defender Offices . . . which are comparable to
those provided to legislative branch employees under the
Congressional Accountability Act of 1995.”1 EDR Plan at
    1
   The Congressional Accountability Act of 1995 “extended to [Con-
gress’s] employees the protections of eleven labor laws generally applica-
                     IN THE MATTER     OF   LEVENSON                     3
A-1. The Plan prohibits discrimination on numerous grounds,
including both sex and sexual orientation. Id. at A-2. The
availability of health, dental, and vision insurance for oneself
and one’s family is a valuable benefit of employment,2 and
denial of such a benefit on account of sex or sexual orienta-
tion would violate the terms of the EDR plan.

   As required by the EDR Plan, see id. at A-6-A-9, Levenson
requested counseling, which failed, and mediation, which also
failed. He then filed the pending complaint. Id. at A-10. In my
role as Chair of the Ninth Circuit’s Standing Committee on
Federal Public Defenders at the time of the complaint’s filing,
and presently as designee of the current Chair of the Standing
Committee, I am charged with hearing and ruling upon
Levenson’s complaint. Id.

                                Analysis

I.    Levenson’s Rights under the EDR Plan Were Violated

     There is no doubt that the denial of Levenson’s request that

ble to other public and private employees, including the protections
against discrimination provided in Title VII . . . .” Dotson v. Griesa, 398
F.3d 156, 173 (2d Cir. 2005). “In enacting the CAA, Congress initially
considered extending the statute’s coverage to employees of the judicial
branch but, mindful of the importance of judicial autonomy, ultimately
decided against such action.” Id. Thus, the EDR Plan, rather than Title VII
or any other federal labor law, provides Levenson’s exclusive remedy for
his claim of employment discrimination.
   2
     FPD employees and their family members have the right to these bene-
fits pursuant to the Federal Employee Health Benefits Act, 5 U.S.C.
§§ 8901-8914 (“FEHBA”), and FEDVIP, the federal employee dental and
vision insurance program, see 5 U.S.C. §§ 8951-62, 8981-92; 5 C.F.R.
§§ 894.101 et seq. Before Levenson joined the FPD, he was employed in
the California Attorney General’s Office, which provided Sears with full
medical, dental, and vision benefits. Since Levenson joined the FPD, he
and Sears have paid $277 per month to provide Sears with health insur-
ance, and have also paid the full cost of Sears’s dental and vision care.
4                 IN THE MATTER   OF   LEVENSON
Sears be made a beneficiary of his federal benefits violated
the EDR Plan’s prohibition on discrimination based on sex or
sexual orientation. Levenson was unable to make his spouse
a beneficiary of his federal benefits due solely to his spouse’s
sex. If Sears were female, or if Levenson himself were
female, Levenson would be able to add Sears as a beneficiary.
Thus, the denial of benefits at issue here was sex-based and
can be understood as a violation of the EDR Plan’s prohibi-
tion of sex discrimination. Alternatively, the denial of benefits
can be understood as discrimination on the basis of sexual ori-
entation. As the California Supreme Court recently explained,
the differential treatment of opposite-sex and same-sex cou-
ples

    cannot be understood as having merely a disparate
    impact on gay persons, but instead properly must be
    viewed as directly classifying and prescribing dis-
    tinct treatment on the basis of sexual orientation. By
    limiting [benefits] to opposite-sex couples, the [ ]
    statutes, realistically viewed, operate clearly and
    directly to impose different treatment on gay individ-
    uals because of their sexual orientation. By defini-
    tion, gay individuals are persons who are sexually
    attracted to persons of the same sex and thus, if
    inclined to enter into a marriage relationship, would
    choose to marry a person of their own sex or gender.
    A statute that limits [benefits] to a union of persons
    of opposite sexes, thereby placing [those benefits]
    outside the reach of couples of the same sex, unques-
    tionably imposes different treatment on the basis of
    sexual orientation. In our view, it is sophistic to sug-
    gest that this conclusion is avoidable by reason of
    the circumstance that the marriage statutes permit a
    gay man or a lesbian to marry someone of the oppo-
    site sex, because making such a choice would
    require the negation of the person’s sexual orienta-
    tion.
                 IN THE MATTER   OF   LEVENSON               5
In re Marriage Cases, 43 Cal. 4th 757, 839-40 (2008).

  Because the EDR Plan prohibits discrimination based on
both sex and sexual orientation, it is not necessary to deter-
mine which form of discrimination is at issue in the present
proceeding in order to find a violation of the EDR Plan.
Regardless of whether Levenson experienced discrimination
due to his sex or due to his sexual orientation, the denial of
benefits violated the EDR Plan.

II.   What Is the Remedy, if Any?

   Levenson’s rights under the EDR Plan were violated. It is
therefore necessary to determine the appropriate remedy, if
any. Before doing so, however, I must consider the effect of
DOMA, which, as applied to the FEHBA and FEDVIP, pre-
cludes an award of federal benefits to Levenson’s spouse.
Ultimately, I conclude that, to provide for the equal treatment
of all judicial branch employees within the Ninth Circuit, and
because any other directive would be unconstitutional, the
appropriate remedy in this case is an order requiring the pro-
vision of FEHBA and FEDVIP benefits to Levenson’s
spouse.

   Federal employees, including employees of the FPD,
receive health benefits pursuant to the FEHBA. The FEHBA
permits federal employees to elect coverage “either as an indi-
vidual or for self and family,” 5 U.S.C. § 8905(a), and defines
“member of family” as “the spouse of an employee or annui-
tant” or “an unmarried dependent child under 22 years of age
. . . .” 5 U.S.C. § 8901(5). FEDVIP likewise defines “family
member” as “a spouse . . . and/or unmarried dependent
child(ren).” 5 C.F.R. § 894.101. These definitions of family
member are limited, however, by DOMA, which provides
that, “[i]n 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
6                    IN THE MATTER     OF   LEVENSON
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 a wife.” 1 U.S.C. § 7. Accordingly, the FEHBA and FED-
VIP provisions defining family members to include spouses
must be interpreted, pursuant to DOMA, to include only
opposite-sex spouses.

   DOMA on its face “does not purport to preclude Congress
or anyone else in the federal system from extending benefits
to those who are not included within [its] definition [of mar-
riage],” Smelt v. County of Orange, 447 F.3d 673, 683 (9th
Cir. 2006). DOMA simply limits the definition of “spouse”
under federal law. It is the FEHBA, when read in light of the
subsequently enacted DOMA, which appears to have that
effect.3 For two reasons, however, I conclude that, DOMA
and the FEHBA notwithstanding, it is both necessary and
appropriate to direct that Levenson’s husband receive the fed-
eral benefits requested by Levenson.

   First, in a recent decision resolving an identical complaint
by a member of the central staff of the Ninth Circuit Court of
Appeals, Chief Judge Kozinski, as hearing officer under the
EDR Plan for Ninth Circuit employees, ordered the provision
of FEHBA benefits to her same-sex spouse. According to that
decision, the legal significance of the definition of “member
of family” at 5 U.S.C. § 8901(5) is ambiguous, because the
FEHBA does not expressly state whether FEHBA coverage
can be afforded only to those family members falling within
the definition provided by § 8901(5), or whether benefits may
be provided to others as well. According to the ruling in that
proceeding, under the doctrine of constitutional avoidance,
see I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001), this ambiguity
    3
    The statutes that establish FEDVIP incorporate the definition of family
member in the FEHBA, 5 U.S.C. §§ 8951, 8981, and have the same struc-
ture as the FEHBA. For the sake of simplicity, I will conduct the subse-
quent discussion solely in terms of the FEHBA. However, the arguments
apply in full to both the FEHBA and FEDVIP.
                 IN THE MATTER   OF   LEVENSON               7
must be resolved in favor of providing the coverage to same-
sex spouses even though they do not fall within the statutory
definition of “member of family,” because a contrary con-
struction of the FEHBA as limited by DOMA would raise sig-
nificant constitutional questions.

   Although Chief Judge Kozinski’s order was issued under
the EDR Plan applicable to Ninth Circuit employees, rather
than the EDR plan applicable to FPD employees, both plans
were prepared and approved by the Judicial Council of the
Ninth Circuit, and their anti-discrimination provisions are
identical. The plans thus reflect the Judicial Council’s intent
to treat FPD employees and other judicial branch employees
equally in matters pertaining to their right to be protected
from workplace discrimination. Although I am not bound by
Chief Judge Kozinski’s decision, in order to ensure that the
rights of FPD employees under the FPD EDR Plan are the
same as those of other judicial branch employees in the Ninth
Circuit, the remedy chosen by the Chief Judge should be
adopted here unless I conclude that I am compelled to dis-
agree with his choice of remedy as a matter of law. Because
I do not disagree with the Chief Judge’s ultimate holding, I
direct that the same-sex spouses of FPD employees be granted
the same benefits as same-sex spouses of other judicial branch
employees, specifically, that in this case, Levenson’s spouse
be provided with FEHBA and FEDVIP benefits.

   Although I adopt the same remedy as the Chief Judge, I
reach that conclusion in a somewhat different manner. I must
reluctantly disagree with the view that the FEHBA is ambigu-
ous. 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. Accordingly, I
believe that I am compelled to reach the constitutional issue.
Doing so, I conclude that the application of DOMA to
FEHBA so as to deny Levenson’s request that his same-sex
spouse receive federal benefits violates the Due Process
Clause of the Fifth Amendment.
8                    IN THE MATTER      OF   LEVENSON
   In reaching that conclusion, I believe it likely that some
form of heightened constitutional scrutiny applies to Leven-
son’s claims. See, e.g., Witt v. Dep’t of Air Force, 527 F.3d
806, 818-21 (9th Cir. 2008) (applying heightened scrutiny on
an “as applied” basis to a discharged service member’s chal-
lenge to the military’s “Don’t Ask, Don’t Tell” policy); id. at
823-26 (Canby, J., concurring in part and dissenting in part)
arguing that discrimination based on sexual orientation is sub-
ject to strict scrutiny); see also Baehr v. Lewin, 852 P.2d 44,
67, 68 (Haw. 1993) (finding distinction between opposite-sex
couples and same-sex couples to be a sex-based classification
subject to heightened scrutiny). However, the denial of bene-
fits here cannot survive even rational basis review, the least
searching form of constitutional scrutiny. Accordingly, it is
not necessary to determine whether heightened scrutiny is
applicable to this claim. Because there is no rational basis for
denying benefits to the same-sex spouses of FPD employees
while granting them to the opposite-sex spouses of FPD
employees, I conclude that the application of DOMA to the
FEHBA so as to reach that result is unconstitutional.

   Any government action resting on a distinction between
discrete classes “must be rationally related to a legitimate
governmental purpose.” City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 446 (1985). Under this standard, “[t]he
State may not rely on a classification whose relationship to an
asserted goal is so attenuated as to render the distinction arbi-
trary or irrational. Furthermore, some objectives — such as a
bare desire to harm a politically unpopular group — are not
legitimate state interests.” Id. at 446-47 (citations omitted).
Applying this standard to the present case, the challenged
denial of benefits is constitutional only if there is a rational
basis for the government to provide FEHBA and FEDVIP
coverage to the opposite-sex spouses of FPD employees while
denying those benefits to the same-sex spouses of FPD
employees. No such basis exists.4
    4
   I should note that marriage is a status traditionally established and reg-
ulated by state law. It is also a fundamental right. Loving v. Virginia, 388
                     IN THE MATTER      OF   LEVENSON                      9
   The denial of federal benefits to same-sex spouses cannot
be justified simply by a distaste for or disapproval of same-
sex marriage or a desire to deprive same-sex spouses of bene-
fits available to other spouses in order to discourage them
from exercising a legal right afforded them by a state. As City
of Cleburne made clear, “a bare desire to harm a politically
unpopular group” cannot provide a rational basis for govern-
mental discrimination. Id. at 447. In Romer v. Evans, 517 U.S.
620 (1996), the Supreme Court applied that rule in the spe-
cific context of a law that discriminated against gay people
and held that the state constitutional amendment at issue,
which raised “the inevitable inference that the disadvantage
imposed [was] born of animosity” toward gay people as a
class, was unconstitutional. Id. at 634-36. Thus, the denial of
federal benefits to same-sex spouses cannot be justified as an
expression of the government’s disapproval of homosexuality,
preference for heterosexuality, or desire to discourage gay
marriage. Romer makes clear that the differential treatment of
gay people is not, in and of itself, a proper justification for
government actions. Discrimination against gay people, or
same-sex couples, must, at the very least, serve some more
substantive and lawful function.

   The House report on DOMA identified three interests
advanced by the statute: “the government’s interest in defend-
ing and nurturing the institution of traditional, heterosexual
marriage;” “the government’s interest in defending traditional
notions of morality;” and “the government’s interest in pre-
serving scarce government resources.” H.R. Rep. No. 104-
664, at *12-*18. The first interest is largely irrelevant to the
rational basis analysis here because the same-sex couple here

U.S. 1, 12 (1967). Whether a state may deny such status to same-sex cou-
ples is beyond the scope of this decision. Here, I need determine only
whether same-sex couples who have been legally married under the laws
of the relevant state may, because of the sex or sexual orientation of the
couple, be denied federal benefits that are afforded to other couples legally
married under such laws.
10                IN THE MATTER   OF   LEVENSON
is already married. Gay people will not be encouraged to enter
into marriages with members of the opposite sex by the gov-
ernment’s denial of benefits to same-sex spouses, and the
denial will not discourage same-sex couples from entering
into same-sex marriages; so, the denial cannot be said to “nur-
ture” or “defend” the institution of heterosexual marriage. As
to the second “interest,” if the denial is designed to “defend”
traditional notions of morality by discouraging same-sex mar-
riage, it does so only by punishing same-sex couples who
exercise their rights under state law, and thus exhibits the
“bare desire to harm” same-sex couples that is prohibited
under City of Cleburne and Romer. In addition, denying mar-
ried same-sex spouses health coverage is far too attenuated a
means of achieving the objective of “defending traditional
notions of morality,” as it also is with respect to achieving the
objective of “defending and nurturing the institution of tradi-
tional, heterosexual marriage.” More important, Romer and
Lawrence v. Texas, 539 U.S. 558 (2003), strongly suggest that
the government cannot justify discrimination against gay peo-
ple or same-sex couples based on “traditional notions of
morality” alone. See Lawrence, 539 U.S. at 571, 578 (finding
criminal law barring homosexual sodomy constitutionally
invalid despite “powerful voices” that “for centuries” have
“condemn[ed] homosexual conduct as immoral”); Romer, 517
U.S. at 644 (Scalia, J., dissenting) (noting that the Colorado
constitutional amendment held unconstitutional by the major-
ity expressed the “moral disapproval of homosexual conduct”
of Colorado’s citizens). For these reasons, neither of the first
two interests identified by Congress can provide a rational
basis for the denial of benefits at issue here.

   The third interest can be disposed of quickly. The denial of
health insurance to same-sex spouses may in a comparatively
few cases relieve the government of paying its portion of a
family coverage premium. However, that a government policy
incidentally saves the government an insignificant amount of
money does not provide a rational basis for that policy if the
policy is, as a cost-saving measure, drastically underinclusive,
                    IN THE MATTER     OF   LEVENSON                    11
let alone founded upon a prohibited or arbitrary ground. See
Lazy Y Ranch Ltd. v. Behrens, __ F.3d __, 2008 WL 4368216,
at *8 (9th Cir. Sept. 26, 2008). That rule applies here: There
is no rational relationship between the sex of an employee’s
spouse and the government’s desire to limit its employee
health insurance outlays; the government could save far more
money using other measures, such as by eliminating coverage
for all spouses; and the application of DOMA in this context
sometimes saves the government no money at all.5

   I can identify no other government interests that might be
served by denying Levenson’s request that Sears receive the
same federal benefits available to other spouses of FPD
employees. Excluding from health care coverage spouses of
employees who have entered into legally binding relation-
ships does not serve the government’s interest in promoting
long-term relationships. Likewise, it does not serve any gov-
ernmental interest in promoting a child-rearing environment,
because the children of same-sex couples are eligible for fed-
eral benefits and the denial of benefits to same-sex spouses
will not affect the decisions made by same-sex couples
regarding marriage or parenting. Aside from all else, the rela-
tionship of the denial of benefits to such potential objectives
is “so attenuated as to render the distinction arbitrary or irra-
tional.” City of Cleburne, 473 U.S. at 446. Accordingly, a
decision denying Levenson’s request that federal benefits be
extended to his same-sex spouse would have no rational basis.
In sum, to the extent that the application of DOMA serves to
preclude the provision of health insurance coverage to a
same-sex spouse of a legally married federal employee
because of the employee’s and his or her spouse’s sex or sex-
ual orientation, DOMA as applied contravenes the Fifth
  5
    The denial of coverage to same-sex spouses of FPD employees does
not save the government any money if an FPD employee already has fam-
ily coverage for a dependent, such as a child, because there is no cost to
the employee or to the government of adding an additional family member
to an existing family policy.
12                IN THE MATTER   OF   LEVENSON
Amendment to the Constitution and is therefore unconstitu-
tional.

   To ensure the equal treatment of judicial branch employees
in the Ninth Circuit and to preclude the unconstitutional
denial of benefits to Levenson’s spouse, the Director of the
Administrative Office of the United States Courts is ordered
to submit Levenson’s Health Benefits Election form 2809,
which he signed and submitted on July 15, 2008, to the appro-
priate health insurance carrier, and to process Levenson’s
request that Sears be added as a beneficiary of his FEDVIP
benefits. Any future beneficiary addition requests are also to
be processed without regard to the sex of a listed spouse.

   I retain jurisdiction over this matter so that I may issue any
further order that may be necessary to ensure that Levenson’s
spouse receives the benefits to which he is entitled.
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