BY Kerry Eleveld
December 18 2009 4:20 PM ET
The Office of Personnel Management has concluded that it does not have the legal authority to provide benefits to the spouse of Karen Golinski, a staff attorney who works at the U.S. court of appeals for the ninth circuit in San Francisco.
An OPM official briefed The Advocate on the decision, and the agency’s full statement is available at the end of this article. (Update: A statement from Lambda Legal follows OPM's statement).
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.”
Based on that distinction, DOJ concluded that Kozinski’s order was not legally binding. If it were legally binding, OPM would have been faced with either appealing the decision or complying with the order.
Since the procedure was not an official legal proceeding, the OPM official said the agency was bound by the Defense of Marriage Act, which precludes coverage of Golinski’s spouse.
“OPM must administer the FEHBP in a lawful manner, and the Department of Justice (DOJ) has advised OPM that providing those benefits would violate the so-called ‘Defense of Marriage Act,’” said the OPM statement.
The OPM official said the decision was not taken lightly within the agency, which is headed by John Berry, the highest-ranking LGBT official in the Obama administration. The official added that the predicament underscored the importance of repealing the Defense of Marriage Act.
Passage of the Domestic Partners Benefits and Obligations Act would also empower OPM to provide these benefits, said the official, and in fact would provide a broader remedy since it covers all domestic partners, not just those couples who happen to live in a state where they can legally marry.
DPBO has been approved by the committees of jurisdiction in both the House and the Senate, and many expect the legislation to be voted on in the early part of next year. The bill was added to the list of LGBT legislative priorities this spring when President Barack Obama endorsed it while signing a presidential memo that extended a very limited number of benefits to same-sex partners of federal workers.
OPM's official statement is available after the jump.