The DOMA Decisions In The 9th Circuit

I have had several people ask me off blog about the “opinions” on the Defense Of Marriage Act (DOMA) that have surfaced recently in the 9th Circuit. I may write more later; but for now I want to lay out the sequence of facts and actions and start the discussion.

The current issue really took flight last month when 9th Circuit Chief Judge Alex Kozinski entered an order dated November 19, 2009 on the matter of Karen Golinski, a staff attorney for the 9th Circuit Court of Appeals. Judicial branch employees such as Golinski are Federal employees and therefore have their benefits administered by the Office of Personnel Management (the same folks Obama and Harry Reid want to administer their poor excuse of a substitute for the Public Option). Based upon the OPM’s stated position, the contracted benefits carrier (Blue Cross/Blue Shield) refused to provide health benefits for her same sex legal spouse, Amy Cunninghis.

From Judge Kosinski’s November 19 Order:

Karen Golinski has been denied a benefit of federal employment because she married a woman rather than a man. I previously determined that violates this court’s guarantee of equal employment opportunity. To avoid a difficult constitutional problem, I harmonized the Defense of Marriage Act (DOMA), 1 USC §7; the statutes creating the benefit program at issue, the Federal Employees Health Benefits Program (FEHBP), 5 USC §8901 et seq.; and this court’s commitment to equal employment opportunity.

I then entered [an] order

No “party or individual aggrieved” by my decision appealed it.

The Administrative Office of the United States Courts (AO) complied with my order and submitted Ms. Golinski’s form 2089 to the Blue Cross and Blue Shield Servie Benefit Plan, Ms. Golinski’s health insurance carrier. That’s as it should be; the AO is subject to the “supervision and direction” of the Judicial Conference of the United States, 28 USC §604(a), and I exercised authority delegated by the Judicial Conference when I ordered relief. After the AO submitted Ms. golinski’s form, I thought this matter had concluded.

The Executive Branch, acting through the Office of Personnel Management (OPM), thought otherwise. It directed the insurance carrier not to process Ms. Golinski’s form 2089, thwarting the relief I had ordered. (citations omitted)

That is the basic tale of Golinski and Kozinski. Since the November 19 Order the above language was taken from, the situation has become even more exacerbated by the intransigence of the Obama Administration and its OPM which, either comically or tragically depending on one’s view, is headed by John Berry who the Administration made a big show of touting as its highest ranking openly gay official.

The irony just oozes. After further refusal and contempt of his clear order, which the Administration never appealed, Judge Kozinski entered another Order Tuesday further blistering the Administration and all but instructing Karen Golinski to sue them.

But that is not the only such matter percolating in the 9th Circuit. In a separate matter involving Brad Levenson, a member of the Federal Public Defender’s Office of Central California, an office also under the same benefits plan, a different 9th Circuit Judge, Stephen Reinhardt, has also indicated dissatisfaction with the position of the government as directed by the Obama Administration. In a decision dated November 18, 2009, just a day before Kozinski’s Order in Golinski, Reinhardt wrote:

Brad Levenson, a deputy public defender in the Office of the Federal Public Defender for the Central District of California (“FPD”), is legally married, under California law, to Tony Sears. Nevertheless, Levenson has not been permitted to enroll Sears as a family member beneficiary of his federal health, dental, and vision benefits (hereinafter “federal benefits”) because both spouses are of the same sex. In a previous order, I determined that the denial of benefits on this ground violates the Ninth Circuit’s Employment Dispute Resolution Plan for Federal Public Defenders and Staff (“EDR Plan”), which expressly prohibits discrimination on the basis of sex and sexual orientation. I also determined for similar reasons that the denial of benefits violates the United States Constitution. As a further remedy for those violations Levenson now requests an order directing the FPD to enter into separate contracts with private insurers in order to provide Sears with benefits comparable to those provided in the existing federal plans, or alternatively, a monetary award pursuant to the Back Pay Act. For the reasons set forth below I have determined that an order directing the FPD to enter into separate health insurance contracts would not be a “necessary and appropriate” remedy within the scope of the EDR Plan. A back pay award, however, would be appropriate under the circumstances. Accordingly, I grant Levenson’s alternative request for monetary award, and remand the matter to the FPD to determine the actual amount awarded.

In both of these cases, Golinski and Levenson, the “plan” they were under was contractual and stipulated the only remedy and forum available for prosecuting claims of employment discrimination, which mandated first a “counseling” which was effectively a discussion with OPM representatives, followed by mediation, followed only after unsuccessful exhaustion of the first two avenues, by the ability to petition the 9th Circuit Judicial authority. The latter allows the matter to be heard by a judge, but clearly in an administrative authority as opposed to pursuant to their Article III formal judicial authority. And therein lies the rub and why the Obama Administration feels empowered to contemptuously thumb their nose at the resultant orders.

In case there is any question what Judge Reinhardt thinks of DOMA and its effects on members of the LGBT community under the circumstances:

As I concluded in my previous order, the application of DOMA to FEHBA so as to deny Levenson’s request that his same-sex spouse receive federal benefits violates the Due Process Clause of the Fifth Amendment. In reaching that conclusion, I believe it likely that some form of heightened Constitutional scrutiny applies to Levenson’s claims.

For the uninitiated, Reinhardt finds DOMA clearly unconstitutional and, because it discriminates against protected classes, must be judged under a particularly burdensome standard, which it cannot, and does not, meet. A striking and quite correct analysis.

It is somewhat scandalous, if not outright scurrilous, that the Obama Administration, which ran hard on relief to the GLBT community and protection and equal protection of their rights, would hide behind the DOMA they once scorned to deny equal protection to Karen Golinski and Brad Levenson. But that is just how they roll.

The question now is what avenue for remedy will Golinski and Levenson pursue? That is still unclear, but it ought to be very interesting. The other thing that simply cannot be emphasized enough is how remarkable the decisions of Judge Stephen Reinhardt and Chief Judge Alex Kozinski are. They have not hidden behind illusory outs or carefully kept their powder dry. Both judges have observed unconstitutional provisions and acts, egregious positions by the Obama Administration that openly claimed otherwise to get elected, and denial of equal protection to worthy citizens, and they flat out called it for what it is.

And make no mistake, those of us who live and practice in the 9th Circuit can attest to how different a place on the ideological spectrum these two are. Stephen Reinhardt is a proud old school hard liberal appointed by Jimmy Carter; Kozinski was a young and fairly radical conservative when appointed by Ronald Reagan and openly complained that the 9th was too wild eyed liberal when he joined. Their decisions here may not have precedential value as reported Article III cases, but when these two are on the same page calling foul, as they have done on the acts of the Obama Administration against Ms. Golinski and Mr. Levenson, it is a powerful marker that something very wrong is afoot. And so it is.

39 replies
  1. Peterr says:

    Bmaz, as I read it, Golinski’s case is ongoing before the 9th Circuit because Blue Cross appealed the November decision. His opinion from yesterday opens by saying

    The time for appeal from my orders in this matler, dated January 13, 2009, and November 19, 2009, has expired.Only the Blue Cross and Blue Shield Association (“Blue Cross”) has filed a timely notice of appeal; it petitioned the Judicial Council for review of my November 19, 2009, order on December 17, 2009. My prior orders in this matter are therefore final and preclusive on all issues decided therein as to others who could have, but did not appeal, such as the Office of Personnel Management (“OPM”) and the Administrative Office of the United States Courts.

    At this appeals hearing, therefore, only Blue Cross will appear. Assuming that Golinski’s arguments prevail, is Blue Cross subject to the court’s orders or can they still hide behind OPM?

      • Peterr says:

        Maybe what BC will ask for is to have Congress to pass a law giving them retroactive immunity.

        If’s it’s good enough for the telecoms, surely it’s good enough for Big Insurance.

  2. MadDog says:

    Either President Obama, John Berry, AG Holder are in charge of this Administration, the OPM, and DOJ, or they are not.

    And it’s hard to see which is worse.

  3. earlofhuntingdon says:

    How like Rahma & Obahma to put a gay bureaucrat in this position. It gives “hoist” and “petard” even more connotations than I thought they had. It is also a startling stick in the eye to the federal judiciary, given the high proportion of gay staffers from both parties there are on the Hill, many as top aides to Senators and Representatives.

    The administration’s position is not a stepping stone on the way to Obama keeping his promise to revise DOMA and repeal DADT. It is, instead, Obama adding fresh mortar to the once crumbling wall of discrimination. The ConservaCloset the real Mr. Obama likes to hide in no longer seems big enough to contain him.

  4. bmaz says:

    This is all pretty amazing. You have two extremely respected CCA judges, one a Chief Judge, from both ends of the spectrum, flat out calling DOMA and the acts pursuant thereto by the administration, unconstitutional. And they are treated like they are Cheeto eating bloggers. The arrogance and belligerence of the Obama Administration may actually meet or exceed that of Bush. It is mind numbing and chilling.

    • PJEvans says:

      If they keep going in that direction, I can see pitchforks and torches showing up in the road in front of them.

      • bmaz says:

        I think you have seen some of that starting already. That said, however, I DO want to emphasize that, from what I can discern, the Administration is not acting illegally here since they are not decisions emanating from Kozinski and Reinhardt’s Article III authority. But it is very unsavory and unnecessary. It, once again, flies directly in the face of the shiny image Obama ran and was elected on and is a betrayal of what he professed to stand for.

        • PJEvans says:

          I was thinking about all the other stuff they’ve pulled, in addition to this.

          If they’re going to promise change, they shouldn’t be going the same way as the last batch of idjits. Because that’s not what we voted for.

        • PaulaT says:

          Having practiced law myself, it doesn’t pay to treat judges like that even if you think they can’t do anything to you for it unless you know for a fact you will never be under their jurisdiction again. They have long memories and huge egos.

          • bmaz says:

            Nooo, you are exactly right. These two are laying down HUGE markers for the future on these issues. It is really quite remarkable.

          • Peterr says:

            And they have friends who preside in other chambers. Blow off one judge — especially the chief judge of the circuit — and everyone else in robes will (at best) wonder if you will do the same when you appear in their court.

            Preemptively shooting your own case in the foot is never a good strategy.

    • Peterr says:

      It’s almost as if the DOJ/WH thinks that no one is paying attention to little in-house, administrative things.

      They’re believing their own press releases, that the only thing on anyone’s radar is health care, with Bernanke’s reconfirmation looming next year, and the war(s) somewhere over there out of sight are lingering in the background. This is the Villager mentality — “if we think like this, surely everyone else does, too.”



      The media world is changing, and folks outside the Beltway actually read administrative orders, talk about them in ways that have the potential to reach a bunch of folks, and sometimes manage to pierce the Villager Bubble. Jane’s been piercing that bubble on health care rather fiercely, and her push on Rahm’s Freddie/Fannie background is likely to do the same.

      But the work of Marcy, bmaz, and the folks who hang around here is equally strong in piercing that bubble. Thanks, bmaz, for putting this out there to give it some more visibility. The DOJ and WH can’t sweep it under the rug if we don’t let them.

      And speaking of bubble piercing and paying attention to little, in-house memos and such: when’s the OPR report coming out? After Christmas, I’ll have much more free time . . .

      Perhaps tomorrow afternoon, say around 4:30, while everyone’s talking about Harry Reid’s magnificent health care accomplishments?

      • bmaz says:

        Heh heh, well they were nuts if they didn’t think the gay community was paying attention, and they have mailing lists that reach people that give a damn about this little rule of law thing. This should not have been any secret to anybody with a clue.

        • Peterr says:

          Hanging your hat on that whole “anybody with a clue” would presume facts not in evidence.

          More likely is the conversation among WH staffers that goes like this: “All we have to do is distract the gays with a nice shiny thing — you know, like a disco ball, or flashing flash bulbs on the red carpet . . . Oooh! I know: how about a WH dinner for all the LGBT Veal Pen groups?”

      • bobschacht says:

        …But the work of Marcy, bmaz, and the folks who hang around here is equally strong in piercing that bubble. Thanks, bmaz, for putting this out there to give it some more visibility. The DOJ and WH can’t sweep it under the rug if we don’t let them….

        Suggested New Year’s resolution: Use the Spotlight feature more. That will help get the MSM’s attention.

        Bob in AZ

  5. BayStateLibrul says:

    Sticky problem.
    The administration putting too much pine tar on the bat.
    Thanks for moving the needle on this troubling case.

  6. perris says:

    The irony just oozes. After further refusal and contempt of his clear order, which the Administration never appealed, Judge Kozinski entered another Order yesterday further blistering the Administration and all but instructing Karen Golinski to sue them.

    first, why can’t the judge find the administration in contempt of court itself and second

    why can’t the judge find the insurance company in contempt of court as well, the administration has no power over the courts decision, all they can do is appeal or acquiesce


    • bmaz says:

      Because it is not sitting as a court, it is effectively sitting as a benefit appeals panel. Best as I can tell, there is no contempt power associated with this role.

  7. noen says:

    Now that you are all Teabaggers, will FDL be joining with the planned “National Day of Strike” for Jan. 20? Will you also join with them in targeting corporations that donate to the Dems on MSNBC and CNN?

    Of course I assume that you have all already taken down your Christmas trees in protest of Barry Sotero’s Islamofascist takover of the Christian nation of America.

    • leliorisen says:

      Not sure if you are jesting or just being a schmuck.

      If it is the former…enjoy your holiday.

      If it’s the latter, I think Master Emanuel is in need of some servicing.

      • noen says:

        I’m genuinely curious.

        Tea Partiers’ Next Target: American Business?

        Shouldn’t you demonstrate solidarity with your new friends on the Right? The teabaggers certainly can’t be any more unpalatable than Norquist. I’m also perplexed about your objection to the Obama administration’s “go it slow” approach to DOMA. Since President Palin will likely make teh gehy a capital offense.

        I assume that you’ll be voting for Sarah for pres, Michelle Bachmann as speaker, Todd (first dude) Palin at Sec. of Defense. Trig will be an AWSOME press secretary! whoo hooo!

      • noen says:

        Do you really think you’ll get a better deal from President Sarah?

        Obama isn’t abandoning the glbt community (I’m a card carrying member btw). He’s taking a go slow approach. Probably because unlike you he has a functioning brain and noticed that we lost the last two gay initiatives at the state level. If the country isn’t ready it’s insanity to push too hard. All you’ll do is incite a backlash.

        I take the results of Calif. and Maine to mean that we need to do a LOT more at the grassroots level.

        Howz that purity pony taste btw? Yummy?

        • bmaz says:

          I think it is a basic matter of constitutionality and that Obama ought to live up to obligation to protect and uphold those principles. And if blithering wimps like you want to constantly hold your water, you will never get anything done. Obama DID run on an agenda he is refusing to now do; if you think that is a just a dandy thing, that is your problem. How’s that taste?

          • noen says:

            “Obama DID run on an agenda he is refusing to now do”

            One year into his administration? Don’t think so.

            “I think it is a basic matter of constitutionality”

            You believe that actions of this admin are unconstitutional? HAHAHAHAHAHAHAHAHA!!!!

            Take another huff on that helium balloon mkay?

            • bmaz says:

              Apparently you have failed to read what I wrote, I said the matter was a “basic matter of constitutionality”, not that Obama’s actions were unconstitutional. If you want to participate in good faith, fine; if not the next transgression will be your last. It is entirely up to you; but my patience is wearing thin.

              • noen says:

                Sp what does “a basic matter of constitutionality” mean? Anything you want?

                Is the Obama admin behaving illegally?

  8. leliorisen says:

    It was the startling deficiency on glbt issues that first opened my eyes about the Rahmbama administration.

    I had been a progressive blogger and activist, though my earliest works were in glbt activism. His horrendous record in this arena, compared to the promises he made, is what caused me to suspend my ‘progressive’ blog, which I advocated for him so fiercely on during his campaign, and go back to my roots, which is glbt activism. I now focus primarily on glbt issues on my blog, because there is no party advocating for my civil rights. However, I will use this internet presence from now on, for consistency.

    When I was in such angst over his failure on glbt issues, everyone said, “relax, he is focusing on health care. He’ll get to it.”

    Yeah, when he is running for re-election he’ll go back to making promises.

    I am done with him.

  9. noen says:

    “Maybe” isn’t enough for me to get worried just yet. My opinion is the Obama has a checklist of things to accomplish and that DOMA isn’t at the top just yet. Not because he doesn’t care but because he is a finite human with limited powers.

    My main criticism of the American Left, which seems to be here at FDL these days, is that they do not acknowledge pragmatic realities that place constraints on what can be done. They seems to me to live in a fantasized world where one just waves one’s hand and you get all you ever wanted.

    I’ve already been called a Menshevik.

    Given that state of affairs mockery seems the only option left, as reason has already left the room.

    • bmaz says:

      Okay, fair questions now. Thank you. Constitutionality means I think that DOMA, really overall, but certainly as it relates to the issues of employment discrimination at issue in both Golinski and Levenson, is in direct contravention of both the letter and spirit of the Constitution and specifically the Due Process Clause of the Fifth Amendment as well as the spirit of equal protection provision (although maybe not the letter for pretty technical reasons). It is, in sum, discriminatory and is so against an established protected class, to wit sex, and is not only unconstitutional, but must be judged under the harshest of standards of heightened scrutiny.

      As to Obama acting illegally, no. However, I think he is acting immorally and arguably unethically in light of his quite clear stated beliefs on the issue. At least if he meant what he said. The thing is, this is the precise type of area where Obama could make the kind of transformational difference he directly claimed he would by having his administration act in a certain way based on certain principles. He does not have to wait for the Supreme Court, nor does he have to wait for Congress to act; he can simply instruct his administration to comply with a lawful court order. That he refuses to do so is pretty telling as to where his real values are, and it is not where he sold himself on. If you personally have a stake in this, I am shocked you do not agree.

  10. bobbyd12 says:

    Let’s face facts ladies and gentlemen, the Ninth District Court is overturned more then any court in this nation. The administration is no doubt believing that this order is worthless and will continue to ignore The Ninth till it gets to the more conservative Supreme which will rule against the Ninth. This is the real facts and nothing has changed between administations…use the base to get elected and then bend us over…we will never learn

    • PJEvans says:

      Doing it to the Ninth isn’t any better an idea than doing it to any other court – and the reason why the Ninth gets overturned probably has to do with it being a little farther ahead of the social curve than most of the other courts.

      • earlofhuntingdon says:

        Though no longer ahead of the social curve nationally, outside of the Bush-appointee-dominated federal court system.

    • bmaz says:

      For starters, these cases do not look to get to the Supremes because they were not decided under Article III jurisdiction; as explained in the post, the Court was sitting in a contactually designated administrative capacity. So the premise of your comment does not hold water. Beyond that, do you not find it remarkable and admirable that judges such as these are willing to step up and lay a bright marker for that which is right? They should be saluted and appreciated for doing so; it is not common and they could easily have demurred and cowardly hidden like the Obama Administration is doing. They did not, they stepped up; and I for one, salute that.

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