Karen Golinski and Lambda Legal are the winners in another round of the lawsuit attempting to win for Ms. Golinski the ability to obtain insurance coverage for her same-sex spouse, Amy Cunninghis, from her employer, the U.S. Court of Appeals for the 9th Circuit. On February 22, U.S. District Judge Jeffrey S. White (N.D.Cal.) granted summary judgment to Golinski on her claim that Section 3 of the Defense of Marriage Act, as applied to her, violates her 5th Amendment right to equal protection of the law from her government employer. Golinski v. Office of Personnel Management, 2012 WL 569685.
In the course of making this ruling, Judge White determined that Section 3 embodies discrimination based on sexual orientation and thus is subject to judicial review using "heightened scrutiny." To reach this conclusion, Judge White concluded that the 9th Circuit's standing precedent on sexual orientation discrimination claims, High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (1990), is no longer good law.
High Tech Gays, which rejected a claim for heightened scrutiny of the anti-gay procedures used by the Defense Department to grant security clearances to employees of defense contractors, was squarely based on the proposition that because sodomy laws were constitutional, gays could not claim heightened or strict scrutiny for equal protection claims against the government, and relied on Bowers v. Hardwick, 478 U.S. 186 (1986), which rejected a due process challenge to the Georgia sodomy law, to reach that holding. Bowers was overruled in 2003 by the Supreme Court in Lawrence v. Texas, 539 U.S. 558, but lower federal courts in the 9th Circuit have continued to treat High Tech Gays as binding precedent simply because the 9th Circuit has never overruled or modified its holding. (In the litigation against the "don't ask don't tell" policy in the 9th Circuit, heightened scrutiny was premised on due process rather than equal protection, the courts continuing to hold to High Tech Gays as a precedent on equal protection but finding that some sort of heightened scrutiny should be used because the military policy burdened the liberty interest in sexual autonomy identified by the Supreme Court in Lawrence.)
Judge White concluded that High Tech Gays is no longer good law, not only because Lawrence overruled Bowers, but also because the developments subsequent to High Tech Gays – Romer v. Evans and Lawrence most significantly — undermined its reasoning. White cited 9th Circuit authority holding that when subsequent rulings by the Supreme Court or the 9th Circuit itself undermine one if its precedents, district courts are no longer bound by the undermined precedent.
Thus, he concluded, the question of what the appropriate level of judicial review should be for sexual orientation discrimination claims is an "open question" in the 9th Circuit. Proceeding from that point, White evaluated the various factors that the Supreme Court has discussed in equal protection cases and concluded that sexual orientation claims should be subjected under that analysis to heightened scrutiny, which shifts the burden to the government to show that the discriminatory policy significantly advances an important government interest. Then taking his cue from the recent spate of rulings on DOMA claims by other district judges, he concluded that Section 3 could not survive heightened scrutiny. Hedging his bets and armoring his decision against appeal, he also concluded that Section 3 could not survive less demanding rational basis review, either.
The policy reasons for adopting Section 3, taken from the legislative history, pointed to moral disapproval of gay people and their relationships as the main inspiration for the statute, which was passed in the wake of same-sex marriage litigation in Hawaii. Finding these justifications, as well as arguments about procreation and child-rearing, inadequate even to meet the less stringent rational basis test, Judge White also rejected the new arguments raised by counsel for the House "Bipartisan" Legal Advisory Group (BLAG), which has intervened as a defendant in light of the Justice Department's announcement last year that it would no longer defend Section 3 because it had concluded that Section 3 violates Equal Protection, as well as arguments raised by anti-gay amicus parties. Most of the "newer" arguments had actually been raised by the Justice Department in the pending appeal of the Gill ruling in the 1st Circuit in Boston, but then abandoned when DOJ changed its position on the constitutionality of DOMA, only to be reasserted by counsel for BLAG.
This case began when Golinski and Cunninghis married in California during the summer of 2008, and Golinski quickly applied to have Cunninghis covered as a spouse under her work-related health benefit plan. As a 9th Circuit employee, her benefits were provided from a private insurance company under contract with the federal Office of Personnel Management (OPM). The plan administrator refused to enroll Ms. Cunninghis on the ground that DOMA Section 3 prohibited recognizing the marriage. Golinski filed a grievance with the 9th Circuit's internal dispute resolution system, and Chief Judge Alex Kozinski, sitting in an administrative capacity, ruled in her case that the relevant federal statutes on benefits could be construed in such a way that Ms. Cunninghis could be covered as a family member. OPM resisted this conclusion and refused to comply with Judge Kozinski's order. Subsequent new litigation in the regular Article III courts was commenced when an attempt to get direct judicial enforcement of Judge Kozinski's order faltered on jurisdictional grounds.
Judge White concluded that Judge Kozinski's findings as to the interpretation of the statute were based on "unpersuasive" reasoning, as the statute carried an unambiguous and limited definition of "family member" that could not be stretched to cover a same-sex spouse in light of Section 3. Thus, the case rose or fell based on whether Section 3 was constitutional. Having concluded that it is not, Judge White issued a permanent injunction against OPM and its Director, openly-gay John Berry, preventing them "from interfering with the enrollment of Ms. Golinski's wife in her family health benefits plan." (The insurer, Blue Cross, could not take action so long as OPM refused to authorize the coverage.) Presumably Paul Clement, the lead attorney hired by BLAG to defend DOMA, will file an appeal in the 9th Circuit, where a petition for en banc review in Perry v. Brown, which held Proposition 8 unconstitutional, is now pending as well.