“Tony West Assistant Attorney General  from the  U.S. Department of Justice notes one of the greatest moments in his career was when Karen Golinski thanked him for the DOJ position in her case.”

On Friday in San Francisco, the Justice Department made its first court appearance in a lawsuit challenging the Defense of Marriage Act (DOMA) since President Obama’s administration first declared that the 1996 law is unconstitutional.

On Friday evening I was privileged to attend a meeting of the San Francisco BAR Association where Tony West, Assistant Attorney General for the Department of Justice’s Civil Division met with lawyers to discuss his Department’s evolution on the issue and the argument which he delivered earier the same day.

Golinski v. United States Office of Personnel Management: Karen Golinski, who is represented in the case by Lambda Legal, is herself an attorney and an employee of the U.S. Court of Appeals for the ninth circuit. Golinski sued the federal government in January 2010, after she was denied spousal health benefits for her wife, Amy Cunninghis.

A few months prior, Ninth Circuit Chief Justice Alex Kozinski had administratively ruled that Golinski was entitled to spousal health benefits.

Defense of Marriage Act (DOMA) defines marriage for the purposes of federal law as being between a man and a woman only, thereby excluding same-sex couples from any federal benefits.

The Federal Office of Personal Management (OPM)—an agency of the executive branch—responded that the law governing federal employees’ health insurance and the so-called DOMA prevent coverage for the spouses of lesbian and gay federal employees, and instructed Golinski’s insurer not to enroll Cunninghis.

Lambda Legal is now suing the federal government to compel it to stop interfering with the orders of the federal appellate court’s chief judge so that Golinski can be provided equal benefits for her wife.

Lambda Legal with Morrison & Foerster filed an amended complaint directly challenging the constitutionality of DOMA. Shortly before the filing of the amended complaint, President Obama and U.S. Attorney General Eric Holder announced that they believe DOMA to be unconstitutional and the administration would no longer defend DOMA in court, and the majority leadership of the U.S. House of Representatives hired outside counsel to defend the statute.

The History of the case is untenable in terms of the time that has gone by and the evolution of the Obama administration is historic:

• September 2, 2008 Karen Golinski submits an application to enroll her spouse Amy Cunninghis under her employer-provided insurance plan.
• October 2, 2008 Golinski files a compliant under the Ninth Circuit’s Employment Dispute Resolution Plan that the denial of insurance coverage for her spouse constitutes prohibited discrimination.
• January 13, 2009 Chief Judge Alex Kozinski orders that Golinski be allowed to enroll Cunninghis om the Blue Cross/Blue Shiled plan that covers Golinski and her son.
• February 20, 2009 OPM announces it will ignore Kozinski’s ruling and directs Blue Cross not to process Golinski’s insurance application.
• November 19, 2009 Judge Kozinski again orders OPM to process Golinski’s application and that she be compensated for back pay.
• December 18, 2009 OPM announces via press release it will ignore Kozinski’s order.
• January 20, 2010 Lambda Legal files suit against the federal government in the U.S. District Court for the Northern District of California.
• December 17, 2010 Court hears oral arguments.
• February 23, 2011 In response to an announcement that President Obama and Attorney General Eric Holder have concluded that Section 3 of DOMA is unconstitutional and inappropriate to defend, Judge Jeffrey White addresses a series of four questions to the government asking how it plans to proceed in Golinski v. OPM.
• February 28, 2011 Government attorneys reply that they intend to continue to enforce DOMA—and to fight rulings ordering benefits for Golinski—until a court orders them not to or until Congress itself repeals DOMA.
• March 3, 2011 Lambda Legal replies to the government’s answers.
• March 16, 2011 Judge grants motion by government attorneys to dismiss the lawsuit, but sets an April 15 deadline for an amended complaint directly challenging the constitutionality of DOMA.
• April 14, 2011 Lambda Legal and co-counsel file amended complaint directly challenging the constitutionality of DOMA.
• July 1, 2011 The U.S. Justice Department files a strongly worded brief arguing that DOMA is unconstitutional.

As Mr. West explained, the Department of Justice’s Attorney general in applying the rule of higher scrutiny the case comes to a conclusion that Section 3 of DOMA is in fact unconstitutional.  It was then that with the administration’s go ahead, the DOJ decided it would no longer defend DOMA.  Instead the DOJ filed a brief in Golinski’s case opposing dismissal of the case and went further to speak to the question of the unconstitutionality of DOMA’s section 3.

The Republican-led House Bipartisan Legal Advisory Group, (is it really bi-partisan?) otherwise known as BLAG, stepped in to defend DOMA in this case. BLAG attorneys, also making their first appearance argued  Friday that DOMA is constitutional and should be upheld.

Mr. West explained the DOJ argument to our group; elucidating that Section 3 of DOMA, which bars federal recognition of same-sex marriages, should be subject to heightened judicial scrutiny — in part given the long history of discrimination against gays and lesbians in the United States.

West noted that Golinski and her wife – “a married couple who – the same as any other, with one distinguishing characteristic, and that is sexual orientation. The Golinski case presents the discriminatory issue.

by Melanie Nathan