Metropolitan News-Enterprise


Thursday, May 24, 2012


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Ninth Circuit Slates Argument Over Same-Sex Spouse Benefits


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has slated arguments the week of Sept. 10 as to whether the federal government may deny health benefits to the same-sex spouse of a court employee.

In a brief order issued late Tuesday, Judge Sidney Thomas—acting as the court’s en banc coordinator—said the arguments would be heard in San Francisco by a three-judge panel, because none of the court’s judges had asked for a vote on a petition to hear the case en banc in the first instance.

The Bipartisan Legal Advisory Group of the U.S. House of Representatives—which intervened in the case after the Obama administration said it would no longer defend the Defense of Marriage Act, which it says is unconstitutional—is appealing a ruling by Judge Jeffrey White of the Northern District of California.  White said that DOMA, which bars federal recognition of same-sex marriages, violates Karen Golinski’s right to equal protection of the laws.

Golinski, a staff attorney for the Ninth U.S. Circuit Court of Appeals, based in San Francisco, has been challenging the constitutionality of DOMA, as applied to her situation, for more than four years.

Golinski has been married to Amy Cunninghus since August 2008. They were lawfully married during the interval between the California Supreme Court ruling that the state’s statutory ban on same-sex marriage was unconstitutional, and the passage of Proposition 8.

Proposition 8

The latter measure, which itself has been held unconstitutional by a three-judge panel of the Ninth Circuit, wrote a same-sex marriage ban into the state Constitution. But the state high court held that marriages like Golinski’s, which occurred before Proposition 8 passed, are valid under state law.

Golinski originally sought an administrative ruling on her claim, and obtained it from Ninth Circuit Chief Judge Alex Kozinski. But the government’s Office of Personnel Management initially refused to honor the determination, so Golinski sued OPM.

OPM said it would still treat DOMA as effective law unless and until repealed by Congress or declared unconstitutional in a final court decision, even after President  Obama and Attorney General Eric Holder said they would no longer defend DOMA in the courts. But OPM reversed course in March of this year, informing the insurance carrier for Ninth Circuit employees that the agency “hereby withdraws any outstanding directive regarding the enrollment of Ms. Golinski’s wife, Amy C. Cunninghis, in her family health benefits plan” and that the carrier should “implement an expeditious enrollment of Ms. Cunninghis.”

Golinski’s attorney, Tara Borelli, was quoted following  OPM’s reversal as saying she would press forward with the appeal in order to secure the same rights for other employees.

Impermissible Animus

White, in his ruling for the district court, said DOMA is steeped in impermissible animus against gays as a vulnerable group. While gays have achieved a small measure of political success, White said, “the basic inability to bring about an end to discrimination and pervasive prejudice, to secure desired policy outcomes and to prevent undesirable outcomes on fundamental matters that directly impact their lives, is evidence of the relative political powerlessness of gay and lesbian individuals.”

Statements by members of Congress during the DOMA debate, the judge said, clearly showed that opponents of the gay lifestyle were taking advantage of that powerlessness to deny gays and lesbians the basic dignity to which they are entitled under the Constitution.

The case is Golinski v. United States Office of Personnel Management, 12-15388.


Copyright 2012, Metropolitan News Company