Lambda Case Takes on DOMA

Oral arguments begin on Friday in a U.S. district court in San Francisco concerning a health benefits case challenging the constitutionality of the Defense of Marriage Act.

Lambda Legal is arguing Golinski v. U.S. Office of Personnel Management, which seeks to have health benefits extended to the wife of Karen Golinski, a San Francisco employee of the U.S. ninth circuit court of appeals. Back in January 2009, ninth circuit chief judge Alex Kozinski ruled it was illegal for Golinski to be denied spousal benefits, since the ninth circuit has a rule banning discrimination based on sexual orientation. The federal government's human resources department (the Office of Personnel Management) told Golinski's carrier, Blue Cross/Blue Shield, to not enforce the judge's order and the insurance company complied.

Judge Kozinski said in November 2009 that he had authority to interpret laws governing the rights of judicial employees and that not offering the benefits violated the ninth circuit court's guarantee of equal employment opportunity. Kozinski also argued that same-sex spouses were entitled to benefits under the Federal Employees Health Benefits Plan. But the next month, OPM said it would not offer benefits to Golinski's spouse, Amy Cunninghis, because Judge Kozinski was presiding over an administrative proceeding; OPM argued that he was not serving in his official capacity as a ninth circuit judge when he ordered the benefits be provided, but was presiding over an employee dispute. OPM, headed by gay Obama appointee John Berry, said it had final say in the matter and that it could not offer benefits to Cunninghis because of DOMA, which forbids federal recognition of state-sanctioned gay marriages.

Part of Lambda's argument against OPM in this case is that DOMA is unconstitutional, specifically because it discriminates based on sex and sexual orientation and it infringes on the right to privacy. Lambda is arguing that the U.S. Supreme Court's decision in Lawrence v. Texas, which in 2003 overturned laws against sodomy, set a precedent for the federal government respecting one's familial relationships.

Lambda Legal also plans to tell district court judge Jeffrey White that he need not find DOMA unconstitutional to rule that Golinski's spouse is entitled to health insurance. "OPM, under the authority of President Obama, is part of the Executive Branch of the federal government, and lacks authority to override internal personnel decisions made by the Judicial Branch as it works to end discrimination against lesbian and gay court employees," says a press release from Lambda Legal.

"Different branches of government have different machinery for hiring and firing and the terms of employment," says Jennifer Pizer, Lambda Legal's senior counsel, who emphasized that OPM's maneuvering contradicted the ninth circuit's nondiscrimination policies. "One of the questions [of this case] is whether DOMA is unconstitutional or not, but the other existential question is whether we have one unitary federal government, or do we have separate entities?"