Yet another Obama Administration anti-gay Friday news dump. Kerry Eleveld of the Advocate is reporting the Obama Administration is defying the order of the chief judge of the 9th Circuit Court of Appeals and his judicial order in the matter of the spousal benefits of 9th Circuit Court employee Karen Golinski and her legally wed spouse.
From Ms. Eleveld's report:
Because she is a federal employee, Golinski’s benefits are overseen by the Office of Personnel Management, which effectively serves as the human resources department for about 1.9 million federal workers nationwide. Golinski’s insurer, Blue Cross and Blue Shield, declined to provide health benefits for her legal spouse, Amy Cunninghis, but ninth circuit chief judge Alex Kozinski said that violated the court's guarantee of equal employment opportunity and that same-sex spouses were entitled to benefits under the Federal Employees Health Benefits Plan.
OPM attorneys consulted with the Department of Justice on this case, and the key to the case, according to the OPM official, was that Kozinski was presiding over an administrative proceeding that’s an internal employee grievance procedure — he was not serving in his official capacity as a ninth circuit judge.
“It’s important to understand that Judge Kozinski was acting as an administrative official in this matter, reacting to the concerns of an employee of the judiciary,” reads OPM’s statement official statement. “He was not acting as a federal judge in a court case.”
This is likely to spark a legal war between the Judicial and Executive Branches over separation of powers and the authority of each branch of government to make the rules that govern it for itself.
If you have not been following the story (see a prior DKos diary here), Karen Golinski applied for spousal benefits for her wife, whom she married while such marriages were being performed in California, and was denied the benefits. She then filed a grievance under the Court's employee dispute resolution procedures. Judge Kozinski, an ultra-conservative, but well respected Reagan appointee and Chief Judge for the 9th Circuit, ruled that the Federal law governing family benefits was not constrained by the D[enial] of Marriage Act in precluding benefits for Ms. Golinsnki's wife because even if her wife does not qualify under the FEHBP as Ms. Golinski's spouse, she would qualify as a family member recognized by the FEHBP. It was a ruling that harmonized DOMA with the FEHBP and made it unnecessary to consider the constitutionality of DOMA.
The ruling was made this past January before Obama took office, but Obama was in office when the Court office filed the application for Ms. Golinski's wife's benefits with the OPM. The Obama Administration ordered the OPM to deny the application. Ms. Golinski brought the matter before Judge Kozinski again, and he ruled for her again and put the OPM under court order to enroll Ms. Golinski's wife. Today the Obama administration gave Judge Kozinski the finger. Obama is basically paraphrasing Andrew Jackson's response to the Supreme Court's ruling (and its author Chief Justice John Marshall) against the removal of thousands of Cherokee from the south: "John Marshall has made his decision. Let him enforce it."
At this point, procedurally, the next step is for Judge Kozinski to either cite OPM Director John Berry, himself openly gay, for contempt or issuing a writ of mandamus, a more formal and much more serious order for a public official to perform a certain act. If Obama and the OPM were to defy such a writ, it would be sufficient cause in my opinion for an article of impeachment against the President.
For months now we've been hearing that it is the President's job to enforce the law. We have here the President shooting the finger at a Federal judge and a person charged with duties in administering the rules and regulation of the judicial branch claiming this judge apparently doesn't have the power that Article III of the Constitution undoubtedly gives him. Obama is usurping the power of the Judiciary to determine what the law is and the power of the Judiciary to govern its branch of the government as it sees fit, a power the Executive and Legislative branches regularly exercise.
This is yet another nail in the coffin of Obama's claim that he is a fierce advocate for the GLBT community. That notion died long ago and the action today means its time to finally completely bury it.