U.S. District Judge Jeffrey S. White of the Northern District of California (San Francisco) has invited Lambda Legal to file an amended complaint in Golinski v. U.S. Office of Personnel Management, challenging the constitutionality of Section 3 of the Defense of Marriage Act, the provision upon which the defendant is relying in its refusal to comply with an order by 9th Circuit Judge Alex Kozinski that Karen Golinski, a lawyer employed by the 9th Circuit, be allowed to enroll her wife in the health benefits program provided for Circuit employees.
Noting the recent announcement by the Obama Administration that President Obama and Attorney General Holder have agreed that Section 3 (which provides that the federal government will not recognize marriages of same-sex couples for any purpose) is unconstitutional, Judge White wrote, "The Court would, if it could, address the constitutionality of both the legislative decision to enact Section 3 of DOMA to unfairly restrict benefits and privileges to state-sanctioned same-sex marriages or address the conflict regarding the Executive's decision not to defend the constitutionality of a law it has determined appropriate to enforce. However, the Court is not able to reach these constitutional issues due to the unique procedural posture of this matter."
Unique, indeed. This case is an offshoot from the brief period during 2008 when same-sex marriages could be contracted in California. During that brief span, Karen Golinski married her long-time same-sex partner, and then applied to have her wife covered by her employer's health insurance plan. Her employer, the 9th Circuit, has adopted its own internal non-discrimination policy that includes sex and sexual orientation. When the insurance administrators rejected Golinski's application, she appealed within the Circuit's internal grievance procedure, represented by Lambda Legal. Her appeal landed before Chief Judge Kozinski, sitting in his capacity as an administrator rather than an Article III judge.
In that capacity, Judge Kozinski ruled that it was possible to construe the applicable insurance provisions in light of the Circuit's non-discrimination policy to allow Golinski's wife to enroll in the plan, and he issued an order to the insurance administrator to that effect. But the Office of Personnel Management (OPM), which contracts with Blue Cross to provide the benefits, instructed Blue Cross to reject the application, taking the position that Section 3 of DOMA applies and so Golinski's spouse cannot be treated as her spouse for any purpose of federal law.
In the DOJ announcement issued last month, the point was made that although DOJ considers Section 3 unconstitutional, nonetheless all federal agencies are still bound to enforce it unless Congress repeals it or it is finally declared unconstitutional by the federal courts. Although at least one federal trial judge, Joseph Tauro of the U.S. District Court in Massachusetts, has declared it unconstitutional, that case is on appeal to the 1st Circuit. Another 9th Circuit judge, Stephen Reinhardt, also sitting as a grievance adminstrator on a parallel benefits claim brought by another gay lawyer employed by the federal courts in the 9th Circuit, ruled, unlike Judge Kozinski, that Section 3 was unconstitutional, but also indicated that the applicant would have to vindicate his claim in federal court.
Judge White, granting a motion to dismiss by the government, pointed out that Judge Kozinski had not ruled on the constitutionality of Section 3, and concluded (after ten months of pondering on the government's motion to dismiss) that Judge Kozinski, when sitting as an administrator within the 9th Circuit, did not have the authority to order the Office of Personnel Management to disregard its obligation to enforce DOMA.
Technically, Golinski was seeking a writ of manadamus, a device by which the court would order a government official to take or refrain from taking an action. White noted that the standards for issuing such a writ are extremely high, requiring that it be very clear that the plaintiff is entitled to what she is seeking and that the government actor's resistance is clearly improper. In this case, until DOMA is actually declared unconstitutional in a controlling appellate ruling, White found, it was not within Judge Kozinski's power to order OPM to disregard it or fail to enforce it.
And, since Golinski sought a writ to enforce Kozinski's order rather than a determination by Judge White as to the constitutionality of Section 3, that issue was not properly before him.
White did not hide his own views about Section 3, however. "The Court has a responsibility to be clear and resolute in its condemnation of a discriminatory rule of law," he wrote, "while maintaining its circumscribed, and therefore legitimate, authority. Both parties agree that Section 3 of DOMA as applied to legally married same-sex couples fails to meet the heightened standard of scrutiny required to adjudicate laws targeting minority groups with a history of discrimination and is therefore unconstitutional. However, the constitutionality of the application of Section 3 of DOMA to the decision by the OPM to restrict the provision of health insurance benefits to Plaintiff's wife is not directly challenged in this case." Thus, a conclusion about constitutionality could not determine the outcome of the government's motion to dismiss, or the outcome of Golinski's pending motion for a preliminary injunction against OPM, which White also denied as part of this decision.
However, White concluded, if Golinski would file an amended complaint raising the constitutionality issue, he could get to the merits and acting as an Article III judge he would then have the authority to make a determination on the merits of Golinski's claim as to her wife's benefit entitlement and award appropriate relief. "Because the Court cannot find as a matter of law that amendment would be futile," he wrote, "the Court grants Plaintiff leave to amend to attempt to plead a claim that the Court may legitimately address." White gave Lambda until April 15 to get the amended complaint on file, and indicated that the government would then have 20 days to respond. The ball is back in Golinski's court, as White concluded that if an amendment is not filed by then, this case is over.
In light of White's comments, it appears that Golinski's amended complaint would receive prompt consideration and most likely a favorable disposition.
Lambda Legal's Jennifer C. Pizer and Morrison & Foerster's Rita Lin, James McGuire, Gregory Dresser and Aaron Jones represent Golinski.