November 26, 2009

They found an iceberg nobody knew it existed: A way to melt down DOMA

TIME is reporting a fascinating story today. Turns out, the Obama Administration just got a kick to the behind over the Defense of Marriage Act. How? Well, it took the form of a letter sent by a California Chief Judge in which he ordered an executive branch agency to stop interfering with a court employee's claim for health care coverage for her female spouse. But how does this relate to the Defense of Marriage Act?

Earlier this year, Chief Judge Alex Kozinski of the Ninth Circuit of the U.S. Court of Appeals determined that the Federal Health Benefits Act, and its definition of the term "spouse", could be interpreted to include lesbian and gay marriage partners after a claimants application for spousal benefits was referred to the Court in January.

This case made very little noise at the time, and that would have been the end of the matter, except that the Office of Personnel Management – an Executive Branch of the Presidential Administration – chose to intervene, and barred the application. It cited the federal Defense of Marriage Act, saying that the federal government does not recognize same-sex marriages, therefore there can be no spousal benefits.

Judge Kozinski has now challenged that decision, writing them a stern rebuke:

"The Executive Branch, acting through the Office of Personnel Management... directed the insurance carrier not to process Ms. Golinski's form 2809, thwarting the relief I had ordered. I must now decide what further steps are necessary to protect Ms. Golinski and the integrity of the Judiciary's EDR [employee dispute resolution] plans."

Kozinski has given the Office of Personnel Management 30 days to desist its interference and to process the application, saying that it is fundamental that the Court, as a co-equal branch of government, be allowed to define how it deals with judicial employees.

The original decision to allow the claimant her rights to spousal benefits had no power to establish legal precedent, simply finding, instead, that DOMA does not have a blanket effect covering all gay marriage issues. However, speaking to TIME, University of California law professor Rory Little, a former Justice Department prosecutor and chief of appeals, called the order a "bombshell" and said, "This is like exposing the tip of a huge iceberg that nobody knew even existed."

Why? Well, it puts the Obama Administration in a difficult position.

Do they continue to defend their actions and refer to the Defense of Marriage Act, a policy that Obama has consistently said that he is against (even though the Obama Administration has defended the law on several occasions since his taking office), and run the risk of Judge Kuzinski taking further legal action? Or, do they concede that the Office of Personnel Management overstepped its bounds by interfering with the judicial branch, and flirt with conceding too that DOMA itself is overreaching and infringes not just on this one Court's ability to make rulings independently, but a state's right to autonomy, and, as part of that, its right to define marriage by its own constitution as expressly stated as part of the Defense of Marriage Act?

Think that's a bit of a stretch? The state of Massachusetts' Attorney General doesn't.

In June of this year, the Attorney General filed a suit against Section 3 of DOMA, saying (emphasis mine):

“Today, the Commonwealth of Massachusetts takes an important step toward ensuring equality and fairness for its citizens and maintaining our authority as a sovereign state. DOMA affects residents of Massachusetts in very real and very negative ways by depriving access to important economic safety nets and other protections that couples count on when they marry and that help them to take care of one another and their families. DOMA also directly and fundamentally interferes with Massachusetts’s right as a state sovereign to determine the marital status of its residents.”

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