Responding to questions posed by U.S. District Judge Jeffrey White (N.D.Cal.) in Karen Golinski's suit for benefits for her same-sex spouse, Golinski v. The United States Office of Personnel Management, No. C 4:10-00257-JSW, the Obama Administration has taken the position that its decision not to defend Section 3 of the Defense of Marriage Act (DOMA), the federal statutory provision that requires the federal government to deny recognition for any and every purpose to same-sex marriages, in pending court proceedings does not mean that it will authorize enrollment of Ms. Golinski's wife in the benefits program available to employees of the 9th Circuit Court of Appeals or is necessarily conceding this case on the merits.
Golinksi and her partner married in California during the period in 2008 when same-sex marriages were available. Under a subsequent California Supreme Court ruling, their marriage is valid under state law despite the subsequent passage of Proposition 8. Yet, when Golinski sought to enroll her wife in the employee benefits program provided by her employer, the 9th Circuit Court of Appeals, she was turned down by administrators, who claimed their hands were tied due to DOMA. She filed a grievance in the court's internal grievance procedure, and the matter was assigned for hearing to Chief Judge Alex Kozinski, who found that she was entitled to enroll her spouse regardless of DOMA, pursuant to the 9th Circuit's internal non-discrimination policy and his own interpretation of the relevant statutes and regulations. When the Office of Personnel Management (OPM), which administers employee benefits programs for all federal employees, refused to comply with the court's order, Golinski went to the federal district court in San Francisco, represented by Lambda Legal.
When the Administration announced last week that it had concluded that Section 3 of DOMA is unconstitutional and that it would no longer defend the statute in court, Judge White framed his questions and sent them to the Justice Department. Would OPM "reassess" its position and allow Golinski to enroll her wife? How did the Executive branch reconciling its conclusion on constitutionality with its statement that it would continue to enforce DOMA? Should the court remand the case back to the 9th Circuit's administrative process in light of this "change" of position on Section 3? And, finally, how can OPM defend its position in this case in light of the conclusion by the Department of Justice (DOJ) and the president that the statute on which the decision was based is unconstitutional?
DOJ filed its response this morning. The reply was that OPM can't reassess its position in this case because the President instructed DOJ to continue enforcing the statute until it is either repealed or declared unconstitutional by the courts. The Adminstration "reconciles" its position of continuing to enforce Section 3 with its obligation under the Constitution to "faithfully execute" the laws and its obligation defer to the will of Congress, a co-equal branch of government, until the courts say otherwise. A remand back to the 9th Circuit would be "inappropriate and ineffectual" since the 9th Circuit administrative process, as DOJ has been arguing throughout this lawsuit, has no authority to order the OPM to recognize Golinski's wife as a qualified applicant for the program. Finally, DOJ pointed out that it has notified Congress about the decision not to defend, and "is committed to urging the courts to provide Congress with a full and fair opportunity to participate in the litigation of DOMA cases."
Attached to the response was a copy of a letter to Speaker Boehner, sent on Friday, following up on Wednesday's notification letter with a list of pending cases in which Section 3 is under challenge and in which Congress may want to field counsel to defend the law. Ten cases are listed, in various pretrial or appellate stages with numerous deadlines pending, some within weeks. If the House wants to defend Section 3, they'd better get their act together and hire counsel quickly. The longer they wait, the more complicated task they'll be handing over to some law firm that will need to struggle to line up all the various deadlines and get motions to extend time on file.