Lambda Legal’s Jon Davidson on the DOMA Lawsuits

While so much attention is being paid to the legal and legislative skirmishes over Don’t Ask, Don’t Tell, the Massachusetts-based Gay & Lesbian Advocates & Defenders and the ACLU’s LGBT Rights Project have been working on constitutional challenges to the federal Defense of Marriage Act. Lambda Legal has also been working on fighting DOMA and on Monday filed a brief in U.S. District Court for the Northern District of California in the case of Golinski v. United States Office of Personnel Management.

This is an interesting case because Karen Golinski is an employee of the U.S. Ninth Circuit Court of Appeals. She is suing the Obama administration’s Office of Personnel Management (OPM) and its openly gay Director, John Berry, to secure spousal health insurance benefits for her wife, Amy Cunninghis – the same benefits afforded spouses of the court’s heterosexual employees

Earlier this year, Ninth Circuit Chief Judge Alex Kozinski agreed with Lambda that refusing Golinski those benefits for her spouse violate the court’s own employment discrimination policy. He ordered Blue Cross/Blue Shield to enroll Cunninghis in the court’s plan. But OPM told Blue Cross/Blue Shield not to. Lambda is seeking an injunction against OPM – again, a department run by an openly gay man – to stop interfering with Kozinski’s orders.

Lambda says the brief filed yesterday is in response to questions raised Oct. 15th by federal District Judge Jeffrey S. White. Among the questions he asked was whether DOMA violates the U.S. Constitution. Lambda told White that he doesn’t have to decide the whole enchilada – whether DOMA itself is unconstitutional – only that Golinski’s case shows that DOMA’s application in blocking equal employment benefits is unconstitutional.  The brief explains that DOMA is discriminatory because of “congressional disapproval” of how same sex couples exercise their fundamental rights of intimacy and marriage.

Jon Davidson, Lambda Legal’s Legal Director, said in a statement:

“The Obama Administration’s aggressive efforts to prevent the court from enforcing its nondiscrimination protections may lead to DOMA’s undoing. This began as an internal personnel matter, but the Administration has upped the ante.

The Executive Branch shouldn’t be interfering with the Judiciary’s efforts to avoid employment discrimination. Even more so, the Administration shouldn’t be invoking DOMA, a law it agrees is discriminatory, as a reason to prevent the courts from compensating their lesbian and gay employees equally. One federal court has already held DOMA unconstitutional.  This could be the second.”

I asked Davidson to put the DOMA lawsuits into a broader context. Here’s his reply:

“Unfortunately, the last two years saw no movement in Congress to put an end to DOMA’s harms and, given the election, we’re unlikely to see legislative progress for at least two more years.

When the government violates the Constitution and our elected officials refuse to do anything about it, it falls to the courts to enforce the Constitution’s promises of liberty and equality for all.  We won’t be intimidated by the thugs at the National Organization for Marriage into shying away from demanding that the judiciary stand up to its responsibility to ensure that constitutional rights are protected, and we are confident that judges will follow their oaths to uphold our nation’s loftiest principles of justice.

DOMA has now been held unconstitutional by one federal district court judge and, with the latest suits by GLAD and the ACLU and the developments in Lambda Legal’s Golinski case, the constitutionality of DOMA is now at issue before three more district courts.  It is only a matter of time before DOMA is struck down.

Denying federal benefits to same-sex couples who are lawfully married under the laws of the state where they live is an outrageous overreach by the federal government.  Since our country’s founding, the federal government has respected state determinations of who is married and there is no reason except for prejudice to treat the marriages of same-sex couples differently.  It is past time for the Department of Justice to admit that and to stop making arguments that are hurting LGBT people’s quest for equal rights.”

A hearing in the case of Golinski v. United States Office of Personnel Management is scheduled for December 17th.  Lambda Legal represents Karen Golinski with James McGuire and Rita Lin of Morrison & Foerster LLP.

Tagged as: DOMA, Golinski v. United States Office of Personnel Management, Jon Davidson, Karen Golinski, Lambda Legal, marriage equality