Obama Administration Ordered to Give Benefits to Lesbian Partner

A federal judge ordered the Obama administration to abide by his ruling and provide health benefits for the female spouse of a lesbian federal employee.

The case concerns an employee of the San Francisco-based court, Karen Golinski, who married Amy Cunninghis in the six month period when gay and lesbian families in California enjoyed marriage equality, reported the San Francisco Chronicle on Nov. 20. Though the anti-gay ballot initiative Proposition 8 stripped marriage rights from gays in California, a subsequent ruling by the state's supreme court upheld the legal marriage status of the 18,000 families that had wed prior to the narrow approval of the measure at the ballot box.

Golinski was denied coverage for Cunninghis by the Office of Personnel Management (OPM), even though the insurance program to which she belonged covered the couple's son. The OPM said that a federal law, the 1996 "Defense of Marriage" Act (DOMA) made it impossible to grant coverage to Goliski's wife, since the law forbids federal-level recognition of gay and lesbian families.

The judge in the case, Alex Kozinski, ruled that the OPM would not be in violation of the law by providing coverage to Cunninghis, given that the women's marriage was recognized by the state of California.

The OPM continued to cite DOMA, however, and to refuse to provide Cunninghis health coverage. On Nov. 19 Judge Kozinski ordered the OPM to "cease at once its interference with the jurisdiction of this tribunal," and required that the family be reimbursed the out-of-pocket cost of providing insurance to Cunninghis since the suit was brought in September of last year.

A similar case in Los Angeles involving a married male couple resulted in a similar back-and-forth with the Office of Personnel Management. A lawyer for LA's public defender's office had been denied coverage for his husband; Judge Stephen Reinhardt issued a Nov. 18 order to that office to reimburse the employee for the cost of providing is husband health coverage out of pocket.

Whereas Judge Kozinski skirted the constitutional issues raised by DOMA, Reinhardt addressed them directly in his ruling, finding that denying a federal employee equal access to family health benefits violated the Fifth Amendment's "due process of law" stipulation. Wrote Reinhardt, "A bare desire to harm a politically unpopular group cannot provide a rational basis for governmental discrimination."

Taking aim at the Congressional reasoning for DOMA, which is the protection of "traditional" marriage, Reinhardt wrote, "the denial cannot be said to nurture or defend the institution of heterosexual marriage" because it will not disrupt heterosexual relationships and it will not lead to gays marrying spouses of the other gender.

Although President Obama declared his support for gay and lesbian families and spoke of civil unions--though not of marriage equality--for America's same-sex couples, the administration has lent its support to DOMA, which is the subject of a suit set to come before a federal court. Though administrations typically support existing law in cases where the status quo is challenged, the brief filed by Obama's Justice Department angered GLBT equality advocates by comparing same-sex couples to incestuous relationships and practitioners of bestiality.

The brief was submitted to the California court where a lawsuit by married couple Arthur Smelt and Christopher Hammer is due to be heard. Like Golinski and Cunninghis, Smelt and Hammer wed during the six-month window between the start of marriage equality in California and the revocation of marriage rights last November. A Mormon holdover from the George W. Bush administration reportedly authored the brief.

The various suits underscore the balancing act that Obama has had to undertake in order to keep bipartisan support without alienating gays who helped finance his campaign and get him elected.

GLBT equality supporters have long identified the Office of Personnel Management as a beachhead where the struggle for gay and lesbian family equality would have to be fought. The Human Rights Campaign has lobbied the OPM to extend spousal benefits to all of its employees. HRC leader Joe Solmonese said last year that, "The federal government should be the standard bearer for fair workplace practices. As long as it denies lesbian, gay, bisexual and transgender employees the comprehensive family benefits that their heterosexual colleagues receive, the federal government will fall short of that standard, and continue to lag behind the nation's top employers."

Rep. Tammy Baldwin, a Wisconsin Democrat, agreed, saying, "Only when we eliminate discriminatory practices in the workplace will we allow both employees and businesses to reach their full potential. As an employer, the federal government must not only set an example, but must compete with corporate America for the best-qualified workforce. Offering domestic partner benefits is a means toward both ends."

Gay and lesbian government employees added their voices to the push, as well, but it may be Judge Kozinski's pointed directive that finally makes a difference. Golinski's attorney, James McGuire, speculated that the OPM would obey Judge Kozinski's order, saying, "Ours is a tradition of executive and legislative branches obeying the courts. The rule of law applies here."