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9th Signals Future Marriage Equality Holdings in Back Pay Order

By William Peacock, Esq. on November 27, 2013 | Last updated on March 21, 2019

This is an interesting, and confusing, order by the Ninth Circuit.

Margaret Fonberg is a former clerk for the United States District Court for the District of Oregon. In 2009, she filed for benefits for her same-sex domestic partner. The couple has a civil union under Oregon law, which provides the same benefits of marriage, without the same title, thanks to a state constitutional provision defining marriage as between one man and one woman. Her request was denied, as benefits were only available for those who were legally married.

She filed an Employment Dispute Resolution (EDR) claim with the Office of Personnel Management (OPM), alleging sex discrimination, and in 2011, a district court agreed with her, and ordered back pay to compensate for the wrongly-denied benefits. Oddly enough, two years later, the same judge rescinded the order "[b]ecause no legal method for reimbursement is currently available ... [and] the law affords Fonberg no remedy in this matter." Basically, the court ruled that there was a wrong, but no remedy.

In 2012, long after Fonberg filed her claim, the District of Oregon added sexual orientation to the list of protected groups.

And then the case gets even more confusing. Earlier this week, the Ninth Circuit reversed, and ordered back pay:

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.

Lets treat this piece-by-piece.

Was Fonberg discriminated against? Obviously.

Does it violate the District of Oregon's EDR Plan? It does now, but it didn't at the time the case was filed.

Does Windsor mandate this remedy? Good question, but it doesn't seem that it would. In Windsor, the court struck down the federal heterosexist definition of marriage, stating that it was the state's place to define marriage traditionally, and that the federal government had no interest in discriminating against different types of state-recognized legal marriages. It didn't, however, hold that states must recognize same-sex marriages, nor did it hold that the federal government had to treat civil unions the same as marriages.

The court seems to be bending over backwards to reach a result that many of us agree with: federal benefits shouldn't be denied to same-sex married or "civil union" couples. The problem is, Windsor was a baby step and the law doesn't seem to be where we'd like it to be (yet).

On a related note, an optimistic reader might notice that this order was signed on to by Chief Judge Kozinski, as well as Circuit Court Judge Clifton, and the sentiment of the opinion bodes well for the pending marriage equality case out of Nevada.

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