Last week Judge Alex Kozinski of the Ninth Circuit of the U.S. Court of Appeals threw down a major challenge to the Obama administration over equal rights for same-sex couples, fast on the heels of another federal judge doing the same thing. Kozinski ordered the White House Office of Personnel Management to stop interfering with a Ninth Circuit employee's efforts to secure health insurance coverage for her wife. His order comes after a similar move by Ninth Circuit Judge Stephen Reinhardt. Kozinski's challenge in particular is seen by many as putting the Obama administration in a tough spot as it continues to uphold the Defense of Marriage Act (DOMA) while claiming to support GLBT equality, with one legal observer telling Time magazine that Kozinski's order is a "bombshell" for Obama.
Judge Kozinki's order involves Karen Golinski, a lawyer employed by the Ninth Circuit, and the woman she married under California law last year. Ten months ago, Judge Kozinski, acting in his capacity as administrator in an employee dispute resolution, determined that the federal Administrative Office of the U.S. Courts (AO) had erred in rejecting Golinski's inclusion of her wife on her health insurance election form. Kozinski based his decision not on a challenge of DOMA, but rather by arguing that the Federal Health Benefits Act says that health coverage must be provided for an employee's family, including a spouse.
While the (Obama) administration interpreted that as meaning the coverage could only be provided for couples whose marriages are recognized under federal law, Kozinski reasoned that the law should be seen as setting a minimum standard for coverage, and that policies could include grandparents living at home, children until they are 25 or, as in Golinski's case, a woman with whom she is raising a child and is married to under state law.
"When a statute admits two constructions, one of which requires a decision on a hard question of constitutional law, it has long been our practice to prefer the alternative," Kozinski wrote in the January order. "The discussion above illustrates the constitutional thicket into which the discriminatory construction drags us. I therefore construe the Federal Employee Health Benefits Act to permit the coverage of same-sex spouses."
As Time magazine reports, Kozinski's order was not published and garnered little or no notice at the time. The AO moved to comply with the judge's ruling, submitting Golinski's insurance form to Blue Cross Blue Shield. Time notes that the case "would have probably gone away" — had the Obama administration not stepped in to fight Kozinksi's order. The White House, through the Office of Personnel Management (headed, ironically, by openly gay appointee John Berry) instructed Blue Cross to not process Golinski's insurance form to provide coverage for her wife.
Last week Judge Kozinski ordered the Office of Personnel Management to "cease at once its interference with the jurisdiction of this tribunal," and gave the administration 30 days to permit Golinski to include her wife on her family health insurance plan. Kozinski argued that the courts should have final jurisdiction over decisions involving its own employees:
"Some branch must have the final say on a law's meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise."
University of California law professor Rory Little, a former Justice Department prosecutor and chief of appeals, called the order a "bombshell" for the White House:
"This is like exposing the tip of a huge iceberg that nobody knew even existed," he told TIME. "It's a fascinating question: Do the courts even have the power to do this? Where does it leave things procedurally? Where can the Administration appeal? I think there are five or six lawyers in the [Solicitor General's] office scurrying around right now trying to figure out what to do with this."
The administration is now faced with having to appeal the decision to the Judicial Council of the Ninth Circuit, or alternatively, roll over on its belly and make a critical exception to the Defense of Marriage Act.
Kozinski's order follows an order last week by his fellow judge on the appeals court, Judge Stephen Reinhardt, who also did an end run around DOMA. Reinhardt ruled that Brad Levenson, a public defender working for the federal courts, was entitled to back pay to cover the costs of buying separate insurance policies for Tony Sears, whom he married under California law before Prop 8 passed.
Reinhardt had previously ruled that the denial of benefits for Sears was discrimination on the basis of sexual orientation, a violation of state law and an unconstitutional denial of due process (unlike Kozinski, Reinhardt challenged the constitutionality of DOMA). He ordered the AO to process Levenson's application for spousal benefits, but once again Obama's Office of Personnel Management stepped in to derail the enrollment, again citing DOMA. So Reinhardt responded with his order for financial compensation for Levenson.
The Obama administration's latest action, in the Golinski case, to fight against equal rights for same-sex couples has further fueled the growing outrage against the administration among many advocates for GLBT rights. John Aravosis at Americablog calls the move "something George Bush's administration would do." And Michelangelo Signorile writes:
And of course, another bombshell here is that the Office of Personnel Management was ordered by the White House to refuse to give a lesbian federal employees (sic) her court-ordered rights. John Berry, as head of that office, was thus apparently forced as an openly gay man to deny another gay person, and the LGBT movement itself, of rights, even in the face (of) a court order. Is this how openly gay appointees must operate within the Obama administration -- not as advocates on behalf of civil rights but rather as lackeys charged with blocking equal rights for their own kind? That, if true, is enormously troubling.
Ann Rostow perhaps sums it up best, noting that the recent rulings by Kozinski and Reinhardt are likely signs of more to come in terms of presenting serious legal challenges to DOMA, and in terms of putting the Obama administration in an increasingly difficult situation - politically and legally:
So, you may ask, why is all this so significant? Because a federal appellate court judge is just one step lower than a justice of the U.S. Supreme Court. And here we have two of them ordering the federal government to take its Defense of Marriage Act and stuff it where the sun don’t shine.
If Levenson’s remedy is picked up by other married staff of the federal judiciary, we’ll see a raft of cash settlements. And keep in mind that the cash reflects the cost to Levenson of out of pocket insurance, which is presumably much higher than the cost of simply adding his husband to the federal pool.
If Kozinski’s argument is upheld or unchallenged, we’ll watch the U.S. government add Karen Golinski’s wife to her benefit plan, creating a deep fissure in the Defense of Marriage Act.
Either way, the developments in the Ninth Circuit are the most concrete attacks yet on the federal bulwark that isolates our legal marriages from everyone else’s; the Defense of Marriage Act.
My two cents: When federal judges are ordering you to stop interfering with their efforts to provide full equality to their GLBT employees, you start to appear being a fierce advocate not for GLBT equality but for anti-GLBT laws. I understand that the Obama administration has to uphold existing laws, but I don't think it needs to defend DOMA with so much zeal and gusto - to the point where federal judges are telling you to back off.