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January 29, 2010


A second federal case puts DOMA in the crosshairs

San Francisco--A second federal case for lesbian and gay spousal rights could end with the 1996 “Defense of Marriage Act” declared unconstitutional.

The suit, filed by a federal court worker, seeks to have the federal Office of Personnel Management give her wife the same benefits other spouses have.

Karen Golinski, an attorney who works for the Ninth Circuit Court of Appeals in San Francisco, was denied benefits for her wife, Amy Cunninghis, even after a federal judge ordered them granted.

Golinski has worked for the court for 18 years. She and Cunninghis married during the five-month period in 2008 when it was legal in California; those marriages were left intact by the Proposition 8 ban amendment. The couple has been together 20 years.

Ironically, the federal personnel office is headed by John Berry, the highest openly gay official in the Obama administration.

“It’s a bit shocking that we’ve reached this point with the Obama administration,” said Lambda Legal Defense’s National Marriage Project Director Jennifer C Pizer, who is co-counsel in the case. “Where is our ‘fierce advocate’ for LGBT rights?”

Lambda is representing Golinski in the suit, filed January 20 in the Federal District Court of Northern California.

After the wedding, Golinski filed papers to add Cunninghis to her family health care plan. The couple has a six-year-old son.

The benefits were denied because of Cunninghis’ sex.

The Ninth Circuit Court of Appeals governs the office where

Golinski appealed the decision to the Ninth Circuit where she works. She pointed to co-workers who get  the benefits, similarly situated except for the sex of their spouse.

The Ninth Circuit prohibits discrimination based on sex and sexual orientation.

The denial occurred because the court’s administrative office argued that DOMA bars the identification of someone of the same sex as a spouse, and would not certify the benefits for Golinski.

The government said that Cunninghis isn’t Golinski’s spouse under DOMA law, thus she is not eligible for coverage under the Federal Employee Health Benefits Act.

Ninth Circuit chief judge Alex Kozinski disagreed, and ordered in January, 2009, then reaffirmed in November, that Golinski was entitled to benefits for her family.

Kozinski cited two U.S. Supreme Court decisions on LGBT rights, the 1997 Romer v. Evans that struck down a Colorado amendment because it was based solely on anti-gay “animus,” and the 2003 Lawrence v. Texas which overturned sodomy laws.

“Implicit in this conclusion is that disapproval of homosexuality isn’t itself a proper legislative end,” Kozinski opined.

But the personnel office ignored Kozinski’s order to process Golinski’s application for benefits. This gave her standing to file this suit.

“Simply defying [Judge Kozinski’s] orders is a slap in the face to Karen and the entire LGBT community and bizarrely disrespects the judiciary,” said Pizer. “At a minimum, federal courts have the power and responsibility to end discrimination against their own employees.”

Golinski’s suit threatens the viability of DOMA as it relates to the business of the federal government, and opens the door for future suits against the law. But it only asks the court to make the personnel office change its position. It does not ask the court to find DOMA unconstitutional.

The other federal suit, however, does.

That suit was filed last March in a Boston federal court on behalf of eight married same-sex couples who the IRS won’t allow to file joint tax returns, and individuals who have been denied their spouse’s federal benefits due to DOMA’s provisions.

The couples are represented by Gay and Lesbian Advocates and Defenders, the advocacy firm that won marriage equality in Massachusetts.

GLAD is asking the court to overturn Section 3 of DOMA, the section that deals with federal government.

Whichever suit concludes first will likely impact the outcome of the other.




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