A U.S. Ninth Circuit Court of Appeals judge has ruled that the federal judiciary discriminated against an assistant federal public defender in Portland by not recognizing her same-sex marriage from Canada, and that Oregon's ban against same-sex marriage violates the U.S. Constitution.
WW has obtained a personnel ruling issued Wednesday, April 24, that says the court system discriminated against Alison "Tex" Clark, a public defender for the District of Oregon, by rejecting her request for health benefits for her spouse, Anna Campbell.
Clark married Campbell in British Columbia last June, and applied for health benefits a few weeks later.
"I'm glad that this ruling came up as it did," Clark tells WW, "because it sucks to be discriminated against."
"Under rational basis review, Measure 36 does not pass constitutional muster," Pregerson writes. "While other possible objectives for Measure 36 exist, I can see no objective that is rationally related to banning same-sex marriages, other than the objective of denigrating homosexual relationships."
Lewis & Clark Law School professor William Funk, who teaches constitutional law, says Pregerson's ruling is highly unusual, and limited to federal employees at best.
"It's not a decision of the Ninth Circuit Court of Appeals," Funk says. "It's written by one judge. This appears to be some kind of internal mechanism for the court."
Funk tells WW that the ruling's wider legal precedent is "zero, none.""He reaches out to strike down anything he wants to," Funk says. "Boy, I do not know what to make of this."
In his ruling, Pregerson says Measure 36 demonstrates no compelling state interest that would override the Equal Protection Clause.
"The first possible objective of Measure 36 is to encourage responsible procreation," Pregerson writes. "Preventing same-sex couples from marrying, however, will have no effect on the procreation of opposite-sex couples in Oregon. Further, same-sex couples can and do procreate—through adoptions, surrogates, and artificial insemination. Denying same-sex couples the status of marriage will not discourage their procreation. Instead, it will lead to children being born out of wedlock to these couples. Thus, excluding same-sex couples from the institution of marriage is not rationally related to the promotion of responsible procreation."
Pregerson directs the federal court's administrative office to give Clark and Campbell their health benefits, and awards Clark back pay if the court doesn't comply.
Clark says she's grateful to see the judge rule so strongly.
"It was surprising, how much it hurt to see Anna's name and my name on top of a letter from the federal government saying we're not going to be treated the same," Clark tells WW.