Brad Levenson and Tony Sears spent Thursday fielding congratulatory calls from gay rights supporters around the nation for their success in getting a federal judge to call into question the legality of the 1996 Defense of Marriage Act.
Judge Stephen Reinhardt of the U.S. 9th Circuit Court of Appeals ruled earlier this week that Sears -- who married Levenson, a deputy federal public defender, last July -- is entitled to the same spousal benefits that heterosexual couples employed by the department receive.
But the Silver Lake couple aren't celebrating yet.
"I'm not convinced this is over," Levenson said of their long-running battle to be treated like a married couple. "But it pushes the conversation forward."
Reinhardt's ruling branded the Defense of Marriage Act unconstitutional. The 9th Circuit's chief judge, Alex Kozinski, also weighed in on the subject last month, granting benefits to the same-sex spouse of a staff attorney for the court. But he stopped short of basing that decision on constitutional grounds.
Despite the prominence of the two judges, the rulings are legally meaningless for all but the two couples because they came in the court's administrative dispute process, rather than in lawsuit judgments.
The 9th Circuit judges ruled in their capacity as dispute-resolution officials within the federal judiciary, whose employees are prohibited from suing in federal court.
Levenson and Sears see Reinhardt's order as a step along the road to equality.
But Levenson pointed out Thursday that his attempt to file a new benefits form was rejected by an office computer still programmed to exclude same-sex spouses from even applying.
Reinhardt and Kozinski heard arguments from the two lawyers denied coverage for their spouses, and both raised constitutional issues despite ruling on different grounds. Kozinski said the federal statute was vague about whether benefits could be extended to someone who wasn't a family member and ruled that 9th Circuit staff lawyer Karen Golinski's spouse should be covered.
Reinhardt, in ruling on Levenson's challenge, deemed the government's denial of benefits for Sears blatant discrimination.
"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 benefits available to other spouses in order to discourage them from exercising a legal right afforded them by a state," Reinhardt wrote in an order to the U.S. Courts administration to submit Levenson's benefits election form.
