DOJ's Position Benefits For Gays Unclear

SAN FRANCISCO — The U.S. Department of Justice has announced that it will continue to deny spousal health insurance benefits to a lesbian federal employee, in spite of last week’s announcement that Attorney General Eric Holder has determined that the so-called Defense of Marriage Act (DOMA) is unconstitutional and that DOJ therefore will no longer defend it against court challenges.

Government attorneys has filed answers to a series of questions posed by U.S. District Judge Jeffrey White in Golinski v. Office of Personnel Management. White had requested a clarification on how last week’s announcement may affect the government's defense in the case.

Lambda Legal and the law firm Morrison & Foerster LLP represent Karen Golinski, a 19-year employee of the U.S. Ninth Circuit Court of Appeals. Golinski seeks the same employee health benefits for her wife, Amy Cunninghis, that heterosexual court employees receive for their spouses. Ninth Circuit Chief Judge Alex Kozinski has issued several rulings in Golinski’s favor, which the federal Office of Personnel Management ignored – claiming, among other reasons, that DOMA prohibits the provision of equal health insurance benefits to Golinski’s wife. Lambda Legal’s case, Golinski v. U.S. Office of Personnel Management (OPM), requests an order directing OPM to stop interfering with Kozinski’s prior rulings.

“Today, the government has confirmed it has nothing further to say to justify its discrimination,” said Jennifer C. Pizer, National Marriage Project Director at Lambda Legal. “We’re hopeful that Judge White imminently will conclude, as we have, that the legally proper answer is even more obvious now than ever: DOMA is unconstitutional and the family insurance benefits to which Karen Golinski is entitled – the same as any of her married heterosexual coworkers – are long overdue.”

White issued the four questions within hours of last week’s announcement that President Obama and Attorney General Holder have concluded that DOMA is unconstitutional and inappropriate to defend. Government attorneys responded today that while the Executive Branch will no longer defend the constitutionality of Section 3 of DOMA, the President “has instructed agencies to continue to comply with Section 3 ‘consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the Judicial Branch renders a definitive verdict against the law’s constitutionality.’”

“It would have been unfair to suggest that Karen wait until Congress acts to receive the employer-provided benefits to which she’s been entitled since 2008, the same as any of her married heterosexual co-workers. The government had a chance to participate in the mandatory administrative proceedings which are her sole recourse. It declined and, instead, came before this district court and gave a full defense. There is no need for further legal briefs at this stage,” Pizer added.”

Lambda Legal’s Jennifer C. Pizer represents Golinski together with Rita Lin, James McGuire, Gregory Dresser and Aaron Jones of Morrison & Foerster LLP.

The case is Golinski v. United States Office of Personnel Management and John Berry, Director of the U.S. Office of Personnel Management, in his official capacity.