There's nothing like being on the wrong side of history -- all the while playing whack-a-mole. Just as soon as the Obama administration thinks one story's coverage has died down (their latest brief defending DOMA in Gill v Office of Personal Management) another one pops up.
In a victory for gay rights advocates, a federal judge has ruled that state employees in California can sue for discrimination over the federal government's exclusion of their same-sex spouses from a long-term health care program.
U.S. District Judge Claudia Wilken of Oakland denied an Obama administration request to dismiss the suit Tuesday and signaled that she is likely to overturn provisions of the 1996 Defense of Marriage Act, which denies federal benefits to same-sex couples.
The case will proceed to trial.
Late last night the press reported on a case that had until now escaped the notice of most, if not all, LGBT civil rights mavens. A federal judge will allow Dragovich v. US Department of Treasury to go forward against the US Treasury, the IRS and CALPERS (the California Public Employees Retirement System).
From an ABC affliate in Sacramento, News 10:
OAKLAND, CA - Three married gay and lesbian couples in which one partner is a state employee have won an important step in their fight for the equal right to buy long-term care insurance from the state's pension system.
In a ruling issued on Tuesday, U.S. District Judge Claudia Wilken of Oakland said the couples can proceed with a lawsuit they filed in April against the U.S. Treasury Department and the California Public Employees' Retirement System, known as CalPERS.
Wilken said that two federal laws used to deny the same-sex spouses the right to buy long-term care insurance "do not bear a rational relationship to a legitimate government interest."
The case is specifically about long-term health care insurance benefits:
Plaintiffs bring a constitutional challenge to section three of the Defense of Marriage Act (DOMA), 1 U.S.C. 7, and section 7702B(f) of the Internal Revenue Code (I.R.C.), 26 U.S.C.7702B(f), which interfere with their ability to participate in a state-maintained plan providing long-term care insurance.
Long-term care insurance provides coverage when a person needs assistance with basic activities of living due to injury, old age,or severe impairments related to chronic illnesses, such asAlzheimer's disease. Enacted on August 21, 1996, as part of the Health Insurance Portability and Accountability Act (HIPAA), section 7702B(f) provides favorable federal tax treatment to qualified state-maintained long-term care insurance plans for state employees. 26 U.S.C. Section 7702B(f) disqualifies a state-maintained plan from this favorable tax treatment if it provides coverage to individuals other than certain specified relatives of state employees and former employees. § 7702B(f)(2). The provision's list of eligible relatives does not include registered domestic partners, but does include spouses.
One month later, section three of the DOMA amended the United States Code to define,for federal law purposes, the term "spouse" to mean solely " a person of the opposite sex who is a husband or wife," and "marriage" to mean only "a legal union between one man and onewoman as husband and wife.: 1 U.S.C 7
CALPERs has refused to allow same-sex spouses, legally married in California before Proposition 8 took effect, to sign up because of DOMA and IRS code forbidding same-sex spouses from receiving favorable tax treatment for insurance plans.
The judge did not buy it. U.S. District Judge Claudia Wilken of Oakland didn't strike down DOMA, but declined the Department of Justice request to dismiss the case, saying, the two laws "do not bear a rational relationship to a legitimate government interest."
Judge Wilken has not only allowed the case to proceed, but has given clear indications of what she thinks about the constitutionality of DOMA:
Wilken said the 1996 law actually changed the status quo by "robbing states of the power to allow same-sex civil marriages that will be recognized under federal law."
She also rejected arguments that the law's sponsors put forth in 1996, that the legislation was necessary to promote procreation and preserve heterosexual marriage.
"Marriage has never been contingent on having children," Wilken said, and denying federal benefits to same-sex couples "does not encourage heterosexual marriage."
She said sponsors' "moral rejection of homosexuality" had been obvious in congressional debate. The U.S. Supreme Court has found that bias against gays is an unconstitutional justification for passing a law, Wilken noted.
Court cases proceed slowly. This is just the 0th step (we haven't even gotten to a trial yet!) on the possible road to the Supreme Court for this case. It is likely that other cases such as Gill will make it there first and render this case moot. And there are presumably no lack of Department of Justice lawyers ready to defend bigotry no matter how many similar cases are initiated.
And Lord knows how many Wall Street investigations could be launched on the DOJ man-hours billed to defending DOMA. It's spending more time in court than Lindsey Lohan these days. Here's a brief scorecard:
- Gay and Lesbian Advocates and Defenders (GLAD) is challenging DOMA with Pedersen v. O.P.M. specifically addresses married couples in Connecticut, Vermont, and New Hampshire. The multi-plaintiff lawsuit is filed on behalf of six couples. It is waiting trial.
- GLAD also is behind Gill, et al. v. Office of Personnel Management, et al. Another multi-plaintiff lawsuit which challenged Section 3. It was decided favorably for the plaintiffs in District Court in July 2010, with Judge Taurro finding DOMA violated equal protection principles in the Fifth amendment. Attorney General Martha Coakley joined the challenged, representing the state of Massachusetts. Briefs were just filed, JPMassar provided an update.
- And the American Civil Liberties Union is challenging DOMA in New York in Windsor v. United States, on behalf of grieving widow, 81-year old Edie Windsor (pictured, right with late wife Thea Spyer) unfairly penalized by IRS inheritance taxes when her partner of 44 year, and legal wife, passed away. The case awaits trial.
- Lambda Legal has gotten involved in Golinski v. U.S. Office of Personnel Management. In January 2009, ninth circuit chief judge Alex Kozinski ruled it was illegal for OPM to deny Federal employee Karen Golinski to be denied spousal benefits and ordered the Obama administration's Office of Personnel Management to deliver them. OPM has refused to comply with the court order. The case was argued in District Court last month and is awaiting a decision.
Not so fun fact: Did you know LGBT Federal employees can now buy health insurance for their pets but not their wives and husbands? Gay Federal employees? The United State Government thinks more highly of your dog than your wife or husband.
You law geeks will appreciate that Adam B has helpfully provide a link to the opinion (pdf) a tease he may Front Page it later.
Update: In a related issue, SFbob has a diary up on new IRS regulations affecting LGBT couples.