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 provision 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 Constitution. 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
2809 to the appropriate health insurance carrier, and to process 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 partnership 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 federal benefits. That request was denied on the basis of a memorandum 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 benefits 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

1The Congressional Accountability Act of 1995 “extended to [Congress’s] employees the protections of eleven labor laws generally applica2 IN THE MATTER OF LEVENSON
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 orientation 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. 

2FPD employees and their family members have the right to these benefits 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 insurance, and have also paid the full cost of Sears’s dental and vision care. 

IN THE MATTER OF LEVENSON 3
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 prohibition of sex discrimination. Alternatively, the denial of benefits

can be understood as discrimination on the basis of sexual orientation. As the California Supreme Court recently explained,

the differential treatment of opposite-sex and same-sex couples 

cannot be understood as having merely a disparate

impact on gay persons, but instead properly must be

viewed as directly classifying and prescribing distinct 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 individuals because of their sexual orientation. By definition, 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, unquestionably imposes different treatment on the basis of

sexual orientation. In our view, it is sophistic to suggest 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 opposite sex, because making such a choice would

require the negation of the person’s sexual orientation. 

4 IN THE MATTER OF LEVENSON
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 determine 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, precludes 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 provision 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 individual or for self and family,” 5 U.S.C. § 8905(a), and defines

“member of family” as “the spouse of an employee or annuitant” 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

IN THE MATTER OF LEVENSON 5
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 FEDVIP 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 marriage],” 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 federal 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

3The statutes that establish FEDVIP incorporate the definition of family

member in the FEHBA, 5 U.S.C. §§ 8951, 8981, and have the same structure as the FEHBA. For the sake of simplicity, I will conduct the subsequent discussion solely in terms of the FEHBA. However, the arguments

apply in full to both the FEHBA and FEDVIP. 

6 IN THE MATTER OF LEVENSON
must be resolved in favor of providing the coverage to samesex spouses even though they do not fall within the statutory

definition of “member of family,” because a contrary construction of the FEHBA as limited by DOMA would raise significant 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 disagree 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 ambiguous. 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. 

IN THE MATTER OF LEVENSON 7
In reaching that conclusion, I believe it likely that some

form of heightened constitutional scrutiny applies to Levenson’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 challenge 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 subject 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 benefits 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 arbitrary 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 regulated by state law. It is also a fundamental right. Loving v. Virginia, 388

8 IN THE MATTER OF LEVENSON
The denial of federal benefits to same-sex spouses cannot

be justified simply by a distaste for or disapproval of samesex marriage or a desire to deprive same-sex spouses of benefits 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 governmental discrimination. Id. at 447. In Romer v. Evans, 517 U.S.

620 (1996), the Supreme Court applied that rule in the specific 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 defending and nurturing the institution of traditional, heterosexual

marriage;” “the government’s interest in defending traditional

notions of morality;” and “the government’s interest in preserving 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 couples 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. 

IN THE MATTER OF LEVENSON 9
is already married. Gay people will not be encouraged to enter

into marriages with members of the opposite sex by the government’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 “nurture” 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 marriage, 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 married 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 traditional, heterosexual marriage.” More important, Romer and

Lawrence v. Texas, 539 U.S. 558 (2003), strongly suggest that

the government cannot justify discrimination against gay people 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 majority 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,

10 IN THE MATTER OF LEVENSON
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 relationships does not serve the government’s interest in promoting

long-term relationships. Likewise, it does not serve any governmental interest in promoting a child-rearing environment,

because the children of same-sex couples are eligible for federal 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 relationship of the denial of benefits to such potential objectives

is “so attenuated as to render the distinction arbitrary or irrational.” 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 sexual orientation, DOMA as applied contravenes the Fifth

5The denial of coverage to same-sex spouses of FPD employees does

not save the government any money if an FPD employee already has family 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. 

IN THE MATTER OF LEVENSON 11
Amendment to the Constitution and is therefore unconstitutional.

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 appropriate 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.

12 IN THE MATTER OF LEVENSON
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