In re Brad Levenson (9th Cir. filed Feb. 2, 2009)

In this unpublished opinion, the Ninth Circuit found that a federal employee's same-sex spouse was entitled to the employee's health benefits, notwithstanding the provisions of the federal Defense of Marriage Act (DOMA). When the employee sought to have his spouse added as a family member beneficiary of his federal benefits, the request was denied based on the employer's position that the federal government does not recognize same-sex marriages, even if state law recognizes them. However, the employer, the Federal Public Defender (FPD), had in place an Employment Dispute Resolution (EDR) Plan, which was approved and administered by the Ninth Circuit and that specifically prohibited discrimination against FPD employees on the basis of sexual orientation. Citing a violation of this plan, as well as the U.S. Constitution, the employee filed a discrimination complaint with the Ninth Circuit.

The presiding judge found that there was a clear violation of the EDR plan on the basis of both sex discrimination and sexual orientation discrimination. As a result, the employee was entitled to a remedy, but the judge had to reconcile the combined effect of DOMA and the Federal Employee Health Benefits Act (FEHBA) which, together, prohibited the awarding of employee benefits to same-sex spouses of federal employees. Ultimately, the judge found that the application of DOMA presents a Fifth Amendment Due Process Clause violation because there is no rational basis for denying benefits to same-sex spouses while granting them to opposite-sex spouses. According to the judge, "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."

Despite its lack of precedential weight, this ruling and its reasoning may be especially useful for HIV-positive people in same-sex relationships who need access to health care through their partner's federal benefits. It also illustrates the impact of sexual orientation bias on the ability of people with HIV to secure equal access to basic health care services.