DOMA case to be appealed

The recent DOMA case  was resoundingly decided in the favor of the plaintiff, Karen Golinski, a Californian who sought health benefits for her legal spouse. As the WaPo remarks,

[Judge] White ... looked at DOMA’s legislative history, noting its “expressed animus against gay men and lesbians,” and found no important governmental objective. Congress listed four governmental interests supposedly protected by DOMA and White demolished them point by point.
●“Responsible procreation and child-rearing.” White cited more than 30 years of research that have “overwhelmingly demonstrated that children raised by same-sex parents are as likely to be as emotionally healthy and educationally and socially successful as those raised by opposite-sex parents.”
●“Nuturing the institution of traditional, opposite-sex marriage.” White said “DOMA does nothing to encourage same-sex married individuals to marry members of the opposite sex . . . . Nor does the denial of benefits to same-sex couples do anything to encourage opposite-sex couples to get married.”
●“Defending traditional notions of morality.” White was succinct: “Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny.”
●“Preserving scarce government resources.” There is “no evidence,” White wrote, “to demonstrate that the provision of federal benefits to same-sex married couples would adversely affect the government fisc. In addition, the preservation of government resources cannot, as a matter of law, justify barring some arbitrarily chosen group from a government program.”

So,  predictably, the "Bipartisan" (not) legislative group BLAG--really, the Congressional Republicans-- will be spending your taxdollars to appeal this ruling.  It will be interesting to see how they will try to argue with Judge White's findings.

And still my marriage, like Karen Golinski's, remains unrecognized.

Breaking: Another court finds DOMA unconstitutional

In the case Golinski vs OPM, DOMA has been found unconstitutional in another district court.  In this case, legally married Californian Karen Golinski sought medical benefits for her spouse.  This will probably go on appeal to the 9th circuit.  Interestingly both Judge Tauro (in MA, in Gill) and Judge White (in Golinski) are Republican appointees.  More background here.

This isn't the first time.  DOMA (the defense of marriage act) was previously found unconstitutional in district court in the cases consolidated as Gill v OPM, and that is under appeal in the 1st circuit.   So (as with Prop8), despite opinions against it, we still endure it.

From  Poliglot, quoting the decision

The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

It's hard to get excited since it was over a year ago that Judge Tauro had similar findings.  There are at least 8 DOMA cases at various stages of litigation.  And still my marriage is not federally recognized.

Hearing today on DOMA

Today, there will be oral arguments on one of the many DOMA cases working their way through the federal courts: the Golinski case, in which a legally married California woman, Karen Golinski, was denied health coverage for her spouse. (The kicker here is that she works for the federal courts). Frankly, I would much rather see this go to the Supremes than Prop8, right now--I don't trust the Supremes on Prop8, but the DOMA clause 3  issue is a slam dunk failure of equal protection big enough for Antonin Scalia to see.  Legally married couples are treated differently by the federal government for no reason but their gender.

This case is a big deal,because the Department of Justice will actually be arguing against DOMA, which will be defended by the expensive lawyer bought by the Republicans in Congress (called BLAG). From The Advocate:

Tony West, assistant attorney general of the Justice Department’s civil division, told The Advocate that his Friday arguments in federal district court will center on why Section 3 of DOMA, which bars federal recognition of same-sex marriages, should be subject to heightened judicial scrutiny — in part given the long history of discrimination against gays and lesbians in the United States.

“This issue is really about whether the federal government, in distributing health insurance benefits, can pick and choose on the basis of sexual orientation when deciding whom to confer benefits,” West said. “Here is a married couple who, for all intents and purposes, is the same as anyone else, with one distinguishing characteristic, and that is sexual orientation.”

The Advocate also tells us about some of the specific questions the judge hearing the case has put forth for the attorneys:

Earlier this week, U.S. district judge Jeffrey S. White issued a two-page list of questions to attorneys on DOMA’s constitutionality and whether the law should be subjected to heightened scrutiny. Among them to be addressed Friday in court: 

• How does treating some state sanctioned marriages different from others promote consistency or maintain the status quo? 
• How does the withholding of federal benefits to children of families with same-sex parents encourage responsible parenting and child-rearing?
• Is the [Bipartisan Legal Advisory Group] actually bipartisan? Does BLAG have the support – and funding for the increasing cost of defending DOMA – from a majority of Congress or just from the House of Representatives?
• How does BLAG distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?

DOMA case moves forward

The San Jose Mercury News reports that the Golinski case will be heard in December.

This is the one where an employee of the 9th circuit tried to put her wife on her benefits, but was denied because of DOMA, even though the 9th circuit judges agreed with her. It is one of several cases on DOMA moving through the federal courts in different districts.

DOMA treats legally married couples, like me, differently depending on their gender. It is under assault not just in the judicial system, but also there is now movement legislatively towards repeal. That won't go anywhere, as the Republicans make anti-gay policies a plank in their platform, but it's a start.

Many legal observers think that DOMA is much more vulnerable at the Supreme Court level than Prop8. It's probably a better case to move up there. Golinski's might be just the one.

Big news on DOMA

I've been behind in posting here due to work and travel commitments. There is big news in the DOMA front. Recall up to this point that the Dept of Justice is not defending DOMA in court, although it is still enforcing it.

And recall the Golinski case, in which a married California woman (ironically an employee of the 9th circuit federal court) is suing for health benefits for her wife. The government's defense is from attorney Paul Clement, hired by the Republicans in Congress since the DoJ won't defend.

Not only won't the DoJ defend, however, they are actively supporting Golinski AND challenging DOMA, in a newly filed brief. From Chris Geidner:

DOJ lawyers today made an expansive case in a 31-page filing that DOMA is unconstitutional. ... In describing why heightened scrutiny applies to classifications based on sexual orientation, for example, the DOJ's lawyers -- in describing how "gays and lesbians have been subject to a history of discrimination" -- write, "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals."...

Today's filing does more than acknowledge the federal government's role in discrimination, going on to detail specific instances of anti-gay and anti-lesbian discrimination, including the 1950 Senate resolution seeking an "investigation" into "homosexuals and other sexual perverts" in government employement and President Dwight Eisenhower's executive order adding "sexual perversion" as a ground for "possible dismissal from government service," in the brief's words. It also details the role of the Federal Bureau of Investigation and the U.S. Postal Service in investigations seeking information about government employees suspected of such "perversion."

The brief goes on to describe anti-gay and anti-lesbian state and local discrimination, as well as private discrimination, before discussing other considerations made by courts when deciding what level of scrutiny should be applied to laws classifying groups -- including immutability; political powerlessness; and whether the classification bears any relation to, as the brief puts it, "legitimate policy objectives or ability to perform or contribute to society."

DOJ's lawyers conclude that heightened scrutiny applies and argue how, under that heightened scrutiny, Section 3 of DOMA should be found to be unconstitutional. ...

the brief concludes, "[T]he official legislative record makes plain that DOMA Section 3 was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3. Section 3 of DOMA is therefore unconstitutional."

The brief is here.

DOMA defense update

Chris Geidner fills us in on the recent motion filed in the first DOMA case to be defended by the Congressional Republican caucus.

Background: the Obama Administration has decided that the Dept of Justice cannot defend DOMA, the defense of marriage act that renders my legal marriage federally invisible, because they believe it is unconstitutional. However, the law remains on the books and is still in force. Congressional Republicans have decided to spend your dollars on a private attorney to defend the indefensibly hate-filled DOMA. (Meanwhile, a repeal bill entitled the Respect for Marriage Act is moving slowly through Congress).

This particular DOMA case is of a legally married California woman, Karen Golinski, who has sought health insurance benefits for her wife from her employer, ironically the 9th Circuit Federal Court. The Court has actually supported Golinski but the Administration's Office of Personnel Management has refused to comply based on DOMA.

Now the case is a lawsuit, and Paul Clement, the attorney hired by the Republicans, will vigorously defend DOMA and attack same sex couples.

Treating us as second class, according to Clement, is justifiable because (1) gay marriage is new, (2) the whole procreation thing (he goes into Gallagher territory) and (3)

Finally, it bears emphasizing that DOMA’s effect is limited. DOMA only defines marriage for purposes of benefits—and burdens—, created by other federal laws. … Congress "did not penalize" same sex couples; it "decided not to offer them a special inducement."

I also find it interesting that he throws in a line about "political power" of gay rights supporters. You may recall that in the Prop8 trial, the relative powerlessness of LGBT people was contested.

Here's the ultimate test of power: do we have enough power to protect ourselves politically without the courts? do we have enough power to ensure our EQUAL TREATMENT under the law? DOMA and Prop8 prove that we so not.

There is no justification for DOMA and the deliberate harming of legally married same sex couples. None, except religiously-inspired bigotry, ignorance, hate and fear.

All of which will no doubt be given a glossy paint job by Attorney Paul Clement.

Golinski DOMA challenge: setback, or new chance?

Karen Golinski, an employee of the 9th Circuit Federal COurt, has been trying to get spousal benefits for her legal wife. The latest is a setback. The SFGate tells us,

A...Karen Golinski, won a ruling in 2009 from another judge, Alex Kozinski of the Ninth U.S. Circuit Court of Appeals, where Golinski has worked for nearly two decades.

Kozinski, acting as administrator of the court's benefits system, said its coverage extends to all employees' legally married spouses, including Amy Cunninghis, whom Golinski wed in 2008 before California voters banned same-sex marriage.

But the Obama administration's Office of Personnel Management refused to comply, saying it was bound by the Defense of Marriage Act, the 1996 law denying federal benefits to same-sex couples....

Golinski sued the government to enforce Kozinski's order, but U.S. District Judge Jeffrey White of San Francisco ruled against her Wednesday. White said Kozinski was not acting as a judge and had no power to overrule the government's personnel office, which oversees health care for federal employees.

White, an appointee of President George W. Bush, said the Defense of Marriage Act includes a requirement to "unfairly restrict benefits." But he said he was ruling only on a question of judicial authority and not on the constitutionality of the law.

He gave Golinski until April 15 to recast her suit in a way that might overcome the procedural obstacles. Her lawyer, Jenny Pizer of the gay rights group Lambda Legal, said she would refile the case as a challenge to the 1996 law.

"This may, in the long run, enable Karen and Amy to have equal treatment sooner and hold onto it when they get it," Pizer said.

A new DOMA case

On Friday, a new DOMA case began: Golinski v OPM. I've told you previously about the ongoing effort of Karen Golinski, an employee of the Ninth Circuit court of appeals, to get medical coverage for her wife. (The Ninth Circuit is hearing the Prop8 appeal.)

Chief Judge Kozinski, who heard Golinski's employee grievance, agreed, because the Ninth does not allow discrimination on the basis of orientation. But the Office of Personnel Management refused to comply because of DOMA. (It's a great irony that OPM is headed by John Berry, the highest ranking gay appointed by President Obama.)

Now, Ms Golinski is suing OPM in US District Court. The Advocate reports,

Part of Lambda's argument against OPM in this case is that DOMA is unconstitutional, specifically because it discriminates based on sex and sexual orientation and it infringes on the right to privacy. Lambda is arguing that the U.S. Supreme Court's decision in Lawrence v. Texas, which in 2003 overturned laws against sodomy, set a precedent for the federal government respecting one's familial relationships.

Lambda Legal also plans to tell district court judge Jeffrey White that he need not find DOMA unconstitutional to rule that Golinski's spouse is entitled to health insurance. "OPM, under the authority of President Obama, is part of the Executive Branch of the federal government, and lacks authority to override internal personnel decisions made by the Judicial Branch as it works to end discrimination against lesbian and gay court employees," says a press release from Lambda Legal.

It's worth reminding you that OPM has already been sued twice on DOMA: First in Gill v OPM. In this case, a legally married Massachusetts resident sued for a federal work benefit for her wife. Federal Judge Joseph Tauro found that the clause of DOMA that prevents federal recognition of legal same sex marriages was unconstitutional. Obama's Department of Justice is appealing the ruling. (The appeal is necessary if it is to extend beyond Massachusetts--it has to get into the Circuit courts of appeal and up to the SCOTUS).

The second case, currently pending, is Pederson v OPM, which challenges state and private entities that rely on DOMA to deny benefits to married same sex couples.

Now we can add Golinski v. OPM. As always, I will follow these here..

Picture from the Advocate

Another DOMA related case

There's another couple of cases we've talked about previously, that come from employment hearing of (ironically) the 9th circuit court (background here). Two same sex court employees asks for equal employment benefits, and the court employment tribunals agree. One judge says that one employee should get extra compensation to cover for the loss of benefits. The other judge says, just provide the darn benefits. But the Obama Administration is blocking the provision of those benefits, and Lambda Legal is on the case.

Karen Golinski is an employee of the U.S. Ninth Circuit Court of Appeals. She is suing the Obama administration’s Office of Personnel Management (OPM) and its openly gay Director, John Berry, to secure spousal health insurance benefits for her wife, Amy Cunninghis – the same benefits afforded spouses of the court’s heterosexual employees

Earlier this year, Ninth Circuit Chief Judge Alex Kozinski agreed with Lambda that refusing Golinski those benefits for her spouse violate the court’s own employment discrimination policy. He ordered Blue Cross/Blue Shield to enroll Cunninghis in the court’s plan. But OPM told Blue Cross/Blue Shield not to. Lambda is seeking an injunction against OPM – again, a department run by an openly gay man – to stop interfering with Kozinski’s orders.

Lambda says the brief filed yesterday is in response to questions raised Oct. 15th by federal District Judge Jeffrey S. White. Among the questions he asked was whether DOMA violates the U.S. Constitution. Lambda told White that he doesn’t have to decide the whole enchilada – whether DOMA itself is unconstitutional – only that Golinski’s case shows that DOMA’s application in blocking equal employment benefits is unconstitutional. The brief explains that DOMA is discriminatory because of “congressional disapproval” of how same sex couples exercise their fundamental rights of intimacy and marriage.

The 9th circuit and DOMA

As I told you previously, a justice of the 9th circuit has ordered the Federal Govt to give one of the court's employees benefits for her (same sex) spouse.

Of course, the Office of Personnel and Management had previously refused to obey. The irony now is that the head of OPM, John Berry, is gay. Will he do as told?

LawDork is on the case.

Ninth Circuit Chief Judge Kozinski’s argument is that federal benefits, under current law, can be provided to the same-sex spouses of employees. The Office of Personnel Management’s long-held view is that this is not permitted under the Federal Employee Health Benefits Act following the passage of the Defense of Marriage Act. ....

OPM’s position is that the law needs to be changed in order to allow for this coverage. It is for that reason that President Obama’s earlier action to provide benefits to same-sex couples did not include health care benefits and that Rep. Baldwin’s Domestic Partner Benefits and Obligations Act is being pushed forward in the House.

Interestingly, fellow Ninth Circuit Judge Stephen Reinhardt, hearing a similar complaint, reached the same conclusion as OPM.....

In other words, the judge traditionally thought of as a “liberal” concurs with OPM’s view that the benefit law does not allow for equal benefits to be granted unless the law is changed or DOMA is struck down as unconstitutional. The judge traditionally thought of as a “conservative” has found an interpretation that would allow him to grant the benefits without striking down DOMA....

Reinhardt issued “an order that [the employee] be compensated for the expense of providing comparable insurance for his partner.”,,,,

Reinhardt actually resolved the dispute. Levenson is being compensated. Kozinski’s actions have left Golinski’s dispute unresolved.

Benefits for married gays ? the Ninth Circuit speaks

As reported in the LA TImes

A federal judge today ordered compensation for a Los Angeles couple denied spousal benefits by the federal government because they are gay men.

U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt deemed the denial of healthcare and other benefits to the spouse of federal public defender Brad Levenson to be a violation of the Constitution's guarantee of due process and discrimination on the basis of sexual orientation, which is prohibited by California state law......

Two same sex couples, employees of the Federal Courts, had each married during the Californian Interregnum. Each filed a complaint when they weren't allowed to insure their spouse. By law, such complaints are adjucated by the court, and in each case, the responsible judge ordered that these legally married spouses should have benefits.

But the Federal Government Office of Personnel and Management (OPM) balked, because of DOMA. They told the insurance company not to process the benefits.

So Judge Reinhardt has ruled that if Mr Levenson and his husband can't get benefits, they need to get compensation equivalent to the value of the coverage that was denied. The judge is Not Happy that the Fed disobeyed his order.

The judge's order is expected to resolve the injustice Reinhardt has cited in previous orders in Levenson's case. But it also recognizes the status quo of federal government rejection of gay marriage under the Defense of Marriage Act. Several other challenges by those denied federal benefits, like filing joint tax returns, are making their way slowly through the federal courts.

(That would be Gill et al which we've discussed. More on that next week).

Now, something very interesting here is that another Judge on the Ninth Circuit, Chief Kozinski, had similarly found for HIS staffer, and like Judge Reinhardt, ordered her to be given benefits. He is quite annoyed that the order was ignored, or rather, that OPM interfered. He has now come back with a new order (PDF) too. In fact, he's gone further than Judge Reinhardt, and rather than simply ordered compensation, he's taking on the executive.

OPM's actions implicate an even more fundamental concern: the autonomy and independence of the Judiciary as a co-equal branch of government. In effect, OPM has claimed that its interpretations of the rights and benefits of judicial employees are entitled to supremacy over those of the Judiciary. That's incorrect, and the Executive must henceforth respect the Judiciary's interpration of the laws applicable to judicial employees. ....

He goes on to scold OPM and the executive in no uncertain terms about interfering in the equal branch of the judiciary. And he makes it very clear and unambiguous:

I have determined that, even as limited by DOMA, the FEHBP permits judical employees to provide health insurance coverage to their same-sex spouses....

Hat-tip Dr Primrose, a commenter on Friends of Jake.