Sexual Orientation and the Law Blog

Lambda sues feds over domestic partner benefits for 9th Circuit court employees

A long-running dispute between executive branch bureaucrats and one of the nation's most colorful judges has now become a federal lawsuit.  

Lambda Legal recently filed suit in the U.S. District Court for the Northern District of California seeking an order directing the U.S. Office of Personnel Management (OPM) to obey prior rulings by Ninth Circuit U.S. Court of Appeals Chief Judge Alex Kozinski awarding spousal health insurance benefits to Ninth Circuit judicial attorney Karen Golinski.  

The case could help determine the scope and proper application of the federal Defense of Marriage Act passed in 1996, which purports to bar any federal recognition of same-sex marriages.  It also spotlights another area where the Obama administration has actively opposed the rights of gays and lesbians.

Kozinski ruled in January 2009 that denying Golinski spousal health insurance for her wife, Amy Cunninghis, was illegal discrimination.  He ordered the Administrative Office of the U.S. Courts to submit Golinski's health benefits election form to her insurer, Blue Cross/Blue Shield.  OPM disagreed with Kozinski's order and told Blue Cross not to comply.

"It's a bit shocking that we've reached this point with the Obama Administration. Where is our 'fierce advocate' for LGBT rights?" said Jennifer C. Pizer, National Marriage Project Director for Lambda Legal and co-counsel for Golinski.

Last November, Kozinski issued a further ruling explaining that he has the authority, under both the Ninth Circuit's Employment Dispute Resolution (EDR) Plan and the constitutional separation of powers doctrine, to interpret laws governing the rights of judicial employees.  His order gave OPM 30 days to comply or appeal.  The controversy drew heightened national attention when, instead of doing either, OPM issued a press release saying the order was not binding and that the U.S. Department of Justice had advised OPM not to comply in light of the federal Defense of Marriage Act. When OPM failed to appeal by the December deadline, Kozinski held that his prior rulings had become conclusive and binding against OPM.

"OPM's refusal to give their analysis — even informally — is the most telling. If they are confident Judge Kozinski is wrong, why didn't they tell us, and him, why they think so?  Simply defying his orders is a slap in the face to Karen and the entire LGBT community and bizarrely disrespects the judiciary.  At a minimum, federal courts have the power and responsibility to end discrimination against their own employees.  The whole point of the court's EDR tribunal is to give judicial employees the same meaningful recourse as other federal employees. OPM has said nothing to suggest the Chief Judge's reasoning on this point is mistaken," Pizer added.

The lawsuit asks the federal district court to order OPM to rescind its instruction to Golinski's insurer, Blue Cross/Blue Shield, not to enroll Cunninghis in Golinski's family health insurance plan so the coverage for Cunninghis can begin.

-SS

Even with strong public support and plunging military opposition, repeal of DADT may fall victim of dysfunctional DC politics

Politico reports that progressive are "growing increasingly worried over the lack of a detailed White House road map for passing a repeal" of Don't Ask, Don't Tell "and that without such a road map, repeal will end up in the same kind of Senate gridlock that hobbled health reform." 

This despite the fact that "on Monday, a Military Times poll often used to highlight the uniformed military’s resistance to repeal was updated, revealing a sharp drop-off in opposition to the repeal from 65 percent in 2004 to 51 percent now. A Quinnipiac University nationwide poll released Wednesday found that two-thirds of Americans think the policy is discriminatory."

Rational policy decisions, though, can't be expected from weak-kneed Democrats, a recalcitrant Pentagon, or Republicans reluctant to abandon a reliable wedge issue.  As Politico puts it, "memories are long on Capitol Hill, and Democrats remain skittish about provoking a culture war, even if the issue could motivate their own depressed liberal base. For his part, [defense secretary Robert] Gates, who has expressed concern about how the repeal would affect frontline troops, has called for a go-slow approach, including a review of the impact a switch would have on units in the field."

Despite Obama's pledge to repeal the policy, it remains unclear how truly committed he is to anything more than rhetoric.  A White House spokesman tells Politico, “The timing of when Congress acts is up to Congress.”

-SS

Vanderbilt Muslim chaplain says that gays should get the death penalty

See the video, along with the university's response, here.

-SS

Repealing Military Ban Could Boost Gay-Rights Movement

Check out the UI News Bureau story here by blog editor Sara Benson.  In the story, I mention that there is a possible parallel between the civil rights movement and the gay rights movement and that repealing DADT could the impetus for more rights (such as employment non-discrimination on a federal level).