The Obama Administration told a federal judge in California on Monday that it will not arrange health care coverage for the same-sex spouse of an employee of the federal courts, even though it believes that the federal law banning such coverage is unconstitutional.   In a filing in San Francisco, the Administration held tightly to its view that it can continue to enforce the Defense of Marriage Act even as it refuses to defend its validity in court.

Two documents were filed with U.S. District Judge Jeffrey S. White.  The most significant was a statement of why the government is taking both positions at the same time.  Separately, the government attached a list of pending cases challenging DOMA that it is suggesting could be entered by members of Congress if they want to take up the cause of defending the Act’s constitutionality. (The second document is unavailable electronically.)

Judge White, noting last week that the Administration had switched positions so that it would no longer support the constitutionality of DOMA’s ban on all federal benefits for same-sex couples who are legally married under their own state’s law, had ordered government lawyers to tell him formally how they could justify both that position and continued opposition to benefits — especialy for a Ninth Circuit Court staff attorney, Karen Golinski.

In its reply, the government said that the federal courts had no authority to order the federal Office of Personnel Management to provide health insurance coverage for Golinski’s spouse, and that the OPM could not do so anyway because DOMA forbids any such coverage.

Besides offering again to Judge White its rationale for denying Golinski the benefit she has sought, the Administration’s new document said in response to another question by the judge that there would be no purpose in sending the dispute back to the Ninth Circuit: it still has no authority, it said, to compel coverage for Golinski’s spouse.

Posted in Cases in the Pipeline

Recommended Citation: Lyle Denniston, U.S. resists gay DOMA claim, SCOTUSblog (Feb. 28, 2011, 8:30 PM),