The Ninth Circuit Judicial Council, an administrative body that reviews decisions of the court’s chief judge, recently weighed in on an issue involving same-sex domestic partner health benefits in the post-Windsor world.  The decision is interesting insofar as it relies at least partially on the Windsor decision in awarding “spousal” benefits to an unmarried same-sex couple, even though Windsor only addressed the rights of same-sex married couples.


In In re Fonberg, 2013 U.S. App. LEXIS 23826 (9th Cir. Nov. 25, 2013), the Judicial Council ordered a federal district court in Oregon to reinstate a back pay award to its former employee (a law clerk at the court) to account for the cost of health benefits for her same-sex domestic partner.   In 2009, the law clerk had requested (and was denied) enrollment of her partner in the health coverage provided by the district court.  The coverage was denied because the district court only provided health benefits for spouses, not domestic partners.  The law clerk and her partner were unable to marry in their state of residence (Oregon) due to the state’s constitutional ban on same-sex marriage.  However, under Oregon law, they were able to (and did) register as domestic partners and, under that law, domestic partnerships are conferred rights “on equivalent terms” to marriage.   


After the clerk’s request for domestic partner health coverage was denied by the Office of Personnel Management (the entity that administers benefit programs for employees of the federal government, including the district court), the clerk filed a discrimination complaint under Oregon law, which at the time prohibited discrimination based on sex and later was amended to include sexual orientation as a protected category.  Although the clerk initially was awarded an allowance for the cost of providing her partner with health coverage, that directive was subsequently rescinded by the chief judge.   


On appeal, the Judicial Council held that the denial of benefits violated Oregon’s nondiscrimination law because the clerk and her partner were being treated differently from opposite sex partners who could marry and receive spousal health benefits from the federal government.  The Council found that, while “Oregon’s statutory scheme purports to confer upon same-sex domestic partners the same rights and legal status as those conferred on married partners,” in actuality it does not, since those partners are denied benefits provided to married couples.  Citing Windsor, the Council further concluded that the distinction drawn by the Office of Personnel Management based on the sex of the partners constitutes a deprivation of the clerk’s due process and equal protection rights. 


The Fonberg decision has far-reaching consequences inasmuch as it appears to require federal government employers to provide health benefits to unmarried same-sex domestic partners who reside in states that provide them with rights equivalent to marriage, even though Windsor only conferred rights on married partners (and has been interpreted as not applying to couples in domestic partnerships and civil unions.)  As with other issues flowing from the Windsor decision, stay tuned for how this will play out.