Metropolitan News-Enterprise


Tuesday, November 26, 2013


Page 1


Law Clerk’s Domestic Partner Entitled to Health Benefits—Panel


By JUSTIN LEVINE, Staff Writer


A law clerk for the U.S. district court for the District of Oregon is entitled to enroll her female domestic partner in health benefits with the United States Office of Personnel Management, the Executive Committee of the Ninth Circuit Judicial Council ruled yesterday.

In a published order, the committee said Margaret Fonberg was denied due process and equal protection when her application for benefits was rejected.

Fonberg served as a clerk in the district for approximately four years beginning in May 2009. She and her same-sex partner are registered as domestic partners in Oregon.

The state has offered domestic partnerships since 2008, but does not allow same-sex marriages.

The state attorney general said last month that same-sex marriages performed in other states would be recognized. A petition drive to amend the state Constitution to allow same-sex couples to marry in Oregon has been underway, and supporters last week said they had nearly enough signatures to place the measure on the ballot.

OPM Denial

The year she began her clerkship, Fonberg attempted to enroll her partner in her employer-offered family health plan. The United States Office of Personnel Management denied her request, prompting Fonberg to file a complaint under the District of Oregon’s Employment Dispute Resolution Plan alleging sex discrimination.

The district’s EDR Plan policy prohibits discrimination based on sex. In 2012, after Fonberg’s complaint was filed, it was amended to also prohibit discrimination based on sexual orientation.

District of Oregon Chief Judge Ann Aiken originally held that the denial of health benefits to Fonberg’s partner violated the EDR Plan and ordered that she be reimbursed the costs of providing her partner with health insurance coverage. Aiken later reversed her directive, ruling that because Fonberg and her partner were not married, she had no authority to order such reimbursements.

Windsor Cited

The Executive Committee of the Ninth Circuit Judicial Council, comprised of Chief Judge Alex Kozinski, Circuit Judge Richard Clifton and Chief District Judge Ralph Beistline of the District of Alaska, reversed. It held that Aiken’s final ruling constituted sex discrimination under the District of Oregon’s EDR Plan and denial of due process and equal protection under the recent Supreme Court decision of United States v. Windsor (2013) 133 S.Ct. 2675.

The committee said that Oregon law purports to confer on domestic partners “the same rights and legal status” as married couples and that such partnerships should not be denied equal access to federal benefits merely because the state fails to use the “marriage” label.  

The committee wrote:

“Fonberg and her partner are treated differently in two ways. First, they are treated differently from opposite-sex partners who are allowed to marry and thereby gain spousal benefits under federal law. This is plainly discrimination based on sexual orientation, which the District of Oregon’s EDR Plan prohibits. They are also treated unequally vis-à-vis same-sex couples in other states in the circuit, who may marry and thus gain benefits under Windsor. This violates the principle that federal employees must not be treated unequally in the entitlements and benefits of federal employment based on the vagaries of state law. Here, Oregon law suffers from precisely the same deficiency that the Supreme Court identified in Windsor with respect to the Defense of Marriage Act. Both these forms of discrimination are prohibited under the Oregon EDR Plan.”

The committee ordered the district’s court clerk to reimburse Fonberg $6,190.90 plus interest.

The committee’s order is labeled In Re Fonberg, 13-002.


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