No mention of Prop 8. As Arthur Leonard notes, both cases involve California couples, and both judges silently assume the present validity of their marriages.
Curiously, neither opinion mentions Prop 8 and the controversy over whether it retroactively invalidates the marriages performed during the window of opportunity. Even more curiously, in light of Kozinski's desire to avoid the constitutional question, he doesn't take advantage of Prop 8 to either put off deciding the grievance until after the California Supreme Court rules on Prop 8's validity..., or even to say that although the marriage in his case may have been valid when the grievance was filed, it is no longer valid so the case is moot.Reinhardt's decision. Considering whether the exclusion of same-sex spouses from benefits violated the court's Equal Employment Opportunity plan, Reinhardt quotes at length from the California Supreme Court's Marriage Cases decision: exclusion of same-sex spouses is facial discrimination. This, he says, brings us to DOMA. He says that in view of Witt, it is likely that some form of heightened scrutiny applies, but he doesn't go there because the law fails rational basis review. He concludes that the application of DOMA to federal benefits is blatant discrimination without any rational basis, on much the same grounds as the state-court marriage decisions.
Kozinski's decision. While Reinhardt thought the federal benefits statute clearly limited benefits to spouses recognized under DOMA, Kozinski took the view that the law allows agencies to provide benefits for other unspecified family members, including same-sex spouses. He favored this interpretation in part because it allowed him to avoid the constitutional question. Kozinski does discuss the constitutional implications of the case, but as conservative gay law prof Dale Carpenter put it, his comments are "intriguing without committing him to anything." Kozinski wrote:
...If I were to interpret the [federal benefits law] as excluding same-sex spouses, I would first have to decide whether such an exclusion furthers a legitimate governmental end. Because mere moral disapproval of homosexual conduct isn't such an end, the answer to this question is at least doubtful....So Kozinski recognizes that there are multiple plausible bases for challenging DOMA, and that justifications typically advanced for it are far from slam-dunks.
Whether DOMA's sweeping classification has a proper legislative end, or whether it reflects no more than an invidious design to stigmatize and disadvantage same-sex couples, is a hard question. The inquiry conducted by the Court in [a leading precedent involving a housing law designed to disadvantage Blacks] into the history and context of the California law was searching and careful, and to conduct a similar inquiry of DOMA would be a delicate and difficult task.
A separate line of authority would also require me to determine whether DOMA impermissibly punishes homosexuality. ...Though [the] facts [of Lawrence v. Texas] are narrow, its reasoning and the potential scope of its holding are broad....The effects of Lawrence and Witt on a discriminatory benefits law are far from clear.
The decisions are terse, as befits their nature as resolutions of internal disputes. We could expect much more searching analysis from both these judges in the context of actual litigation. Nevertheless, here we clearly have two federal judges, a notorious Carter-appointed liberal and a prominent Reagan-appointed conservative, both of whom have serious concerns about DOMA.
Hopefully, we will continue to see an absence of federal lawsuits challenging DOMA - whatever the 9th Circuir might say, I don't think I want the current Supreme Court deciding these issues. Instead, I hope these decisions encourage federal agencies to employ an expansive interpretation of eligibility for federal benefits, until such time as DOMA is repealed.