A federal judge in California has ordered the Obama Administration to explain how it can justify continued enforcement of the federal ban on benefits for same-sex couples who are legally married even while contending that the ban is unconstitutional.  In a “show cause” order issued Wednesday night, U.S. District Judge Jeffrey S. White of San Francisco sought a response in writing by next Monday, to be filed in a hard-fought case over the claim of a federal court employee to federal health insurance for her same-sex spouse; the couple is legally married under California law.

For more than two years, the federal courts have been embroiled in a dispute with officials of the federal government’s personnel office over the eligibility of Karen Golinski, a staff attorney for the Ninth Circuit Court in San Francisco, to have her wife, Amy Cunninghis, enrolled in family plan coverage under the federal employee health benefit program, through Blue Cross/Blue Shield.  Relying on the federal Defense of Marriage Act of 1996, government officials have refused.  DOMA provides that only a marriage of a man and a woman qualifies for federal benefits, such as health care coverage.

For a time, that controversy was between federal personnel officials and the chief judge of the Ninth Circuit Court, Alex Kozinski.  Officials refused to obey a direct order by Kozinski to arrange coverage for Golinski’s wife.  The couple has a six-year-old son.  (Golinski and Cunninghis were married in August 2008, at a time when same-sex couples could marry in California.  That right has since been taken away by the state’s voters, under so-called Proposition 8. The constitutionality of Proposition 8 is now under review in the Ninth Circuit, in a case not directly related to Golinski’s health insurance case.)

After officials refused to comply with the Kozinski order, Golinski filed a lawsuit in District Court in San Francisco to try to force the U.S. Office of Personnel Management to comply with the judge’s order.  That case ultimately wound up before Judge White (Golinski v. OPM, District Court docket 10-257).  When the judge held a hearing on the case Dec. 17, the Obama Administration’s lawyers were still arguing what was then the government’s official legal position: they thought DOMA’s ban was unconstitutional and should be repealed by Congress, but it nevertheless was still valid under Ninth Circuit precedent as a “rational” exercise of Congress’s powers to maintain the “status quo” against same-sex marriage, while the states experimented with the issue.  They also had argued earlier that Kozinski had no power to issue orders to OPM to compel it to arrange health coverage for a judicial employee.

That position, however, changed abruptly on Wednesday, when the Administration notified Congress that it would no longer defend DOMA’s ban in the federal courts, that the ban should be judged by a tougher constitutional standard than mere rationality (“heightened scrutiny” was said to be the proper test), and that DOMA could not pass that more rigorous test.  (Justice Department lawyers have since begun formally notifying the courts of the new stance; on Thursday, for example, the First Circuit Court in Boston was notified by letter that the government lawyers would not defend DOMA in two pending cases in that court.)

Before the end of the day on Wednesday, Golinski’s lawyers had filed a copy of the new Administration position with Judge White.  The judge reacted swiftly that night, issuing his order calling for responses to several questions, with the Justice Department to provide answers by Monday and Golinski’s lawyers to reply by March 7.  The judge noted that the government position was now that “DOMA is unconstitutional” but also that “the Executive Branch intends to enforce the law.”

These are the questions Judge White wants answered, with the answers to focus on the new policy position “and its potential effect on the outcome of this matter”:

“(1) Does the Office of Personnel Management (‘OPM’) intend to reassess its position on its original instruction to [Golinski's] insurer to decline to extend benefits to her same-sex spouse?

“(2) How does the Executive reconcile the position that it intends to enforce a statute that it has affirmatively declared to be unconstitutional and deemed inappropriate to defend?

“(3) Should the Court remand this matter to the Ninth Circuit’s administrative process for proper adjudication of [Golinski's] access to benefits for her wife?

“(4) On what basis can OPM defend its position to decline to extend benefits in a case in which such declination was based on the defense of unconstitutional legislation.?”

When Circuit Judge Kozinski ordered OPM to arrange health coverage for the couple, he did not make a ruling on the constitutionality of DOMA’s ban on benefits for same-sex couples.  Instead, he ruled that another federal law, governing health care benefits for federal workers, allowed such coverage.  Kozinski initially ordered the Administrative Office of U.S. Courts, the “staff” agency for the federal courts, to arrange coverage, and it agreed to do so, through OPM.  But OPM then decided that Blue Cross/Blue Shield could not be ordered to provide the coverage, because that would violate the ban in DOMA.  It did not comply with a direct order by Kozinski to order the coverage, and that led to Golinski’s lawsuit.

The Obama Administration, in extensive filings in the court case, has urged Judge White to dismiss Golinski’s legal complaint, and has argued that the court has no authority to order OPM — in an administrative proceeding in which it was not even a party — to act.  While Judge Kozinski’s had relied on separation-of-powers arguments to justify his mandate that coverage be provided, OPM has also used separation-of-powers arguments to resist a judicial command to arrange the coverage.

It is unclear, before the Administration responds to Judge White’s questions, whether it would abandon its argument that the courts have no authority to dictate personnel policy for court employees to OPM, which administers federal insurance programs for all U.S. government workers, including those employed by the courts.

Posted in Cases in the Pipeline

Recommended Citation: Lyle Denniston, Justification asked for DOMA plan, SCOTUSblog (Feb. 25, 2011, 3:29 PM), http://www.scotusblog.com/2011/02/justification-asked-for-doma-plan/