For Tex Clark, a Federal Public defender, it’s really not that complicated an issue.
“I stood up, asserted myself, and said this is not right. It’s not fair.”
And a federal judge agrees with her.
Last June, Clark and her then-partner (now married partner), Anna Campbell, went to Vancouver, British Columbia where they got married. A couple of weeks later, they returned to Oregon and like all newly married couples, Clark went to HR to change her status on her benefits.
“I had gotten married and needed to change my status,” she remembers of her effort to get health benefits for Anna. “They were understanding and supportive.”
But, as Clark would quickly find out, it wouldn’t matter. The Defense of Marriage Act was – and still is – the law of the land.
“We got a letter saying the government didn’t recognize our marriage, that it wasn’t legitimate in their eyes,” she says.
She appealed the decision and this week, Judge Harry Pregerson of the US Court of Appeals for the Ninth Circuit not only ruled that the federal government had discriminated against her by denying benefits, he also ruled that Oregon’s Measure 36 – passed in 2004 and defining marriage as between a man and a woman – was unconstitutional.
“I can see no objective that is rationally related to banning same-sex marriages , other than the objective of denigrating homosexual relationships,” Judge Pregerson wrote. “This objective amounts to a desire to harm a minority group and is therefore impermissible.”
It’s the first time a federal judge has written that Measure 36 is unconstitutional.
“On a personal level, what he ruled has a lot of meaning to me, that we were not treated fairly,” says Clark. “But the ruling has a deeper meaning that is still hard to accept. It’s a judge saying that while I have rights, the fact is that there is still no remedy.”
Clark points out that there have been rulings that you can’t deny people pensions because of their sexual orientation; that you can’t deny people social security. But as along as DOMA is the law of the land, there is still no remedy to actually fix these problems.
“Judge Pregerson’s ruling is significant and it feels good to have someone agree with my assertion that I was not treated fairly. But it’s a long way from feeling vindicated. In fact, given all the other cases out there that have been brought in recent years, I feel a little late to the party.”
On very practical level, the judge’s ruling doesn’t change anything. While Clark has her federal benefits, Campbell – a photographer – has to buy her insurance on the open market.
“What that means is that she pays a lot more for what is basically inferior coverage,” says Clark. “And that creates anxiety. There’s a fear that we live with every day of what if something were to happen? How would we deal with that? I certainly would not be in the same situation as one of my colleagues if something were to happen to his or her husband or wife.
“That still needs to change. We need to get to the point where there is a remedy.”
Clark says the hope is that will come in June when the Supreme Court is expected to rule on two cases it heard earlier this year – on California’s ban on same-sex marriage and on the constitutionality of DOMA. If the Supreme Court strikes down DOMA, Clark will likely be able to add Campbell to her benefits.
In the meantime, they wait.
“One day the federal code will be rewritten so that all of these issues – taxes, owning real estate, benefits – will be applied the same way for everyone. And then there will be a sense of success, of vindication.”