The Obama administration appears to be keeping its word regarding the Defense of Marriage.
On Thursday, Dec. 15, the Dept. of Homeland Security agreed to join in a motion with the U.S. Immigration and Customs Enforcement (“ICE”) – according to Immigration Equality – to stop the removal of Michael Thomas, whose legal marriage to Massachusetts resident John Brandoli did not prevent the threat deportation because of the Defense of Marriage Act (DOMA). The government has also closed cases for other binational couples – though others still have not yet been so lucky, according to Stop the Deportations.
While Michael and John celebrated on the East Coast, Friday on the West Coast, in San Francisco, federal employee Karen Golinski – who has been fighting for years to secure health insurance for her wife Amy Cunninghis – found that the DOJ sent one of its top senior lawyers to help argue in US District Court that DOMA is unconstitutional.
MetroWeekly’s Chris Geidner has been following the story. Here’s an excerpt from his excellent report:
Golinski’s case, which began as an ordinary request to include her wife, Amy Cunninghis, on her federal employee health insurance plan, became, initially, a dispute between the branches of government about how court employees are managed — and who can do so. Since then, however, it has evolved into its current status as a challenge to DOMA.
Pitting the House Republican leadership-controlled Bipartisan Legal Advisory Group (BLAG) against Golinski and the Obama administration, today’s hearing presented the question to U.S. District Court Judge Jeffrey S. White whether Golinski’s challenge should be dismissed and, if not, whether she should be granted a decision in her favor without a trial.
Assistant Attorney General Tony West, the head of the civil division of DOJ, appeared in court to argue DOJ’s position. Lambda Legal’s Tara Borelli and Morrison & Foerster’s Rita Lin represented Golinski. For BLAG, former George W. Bush administration Solicitor General Paul Clement did not attend the hearing but rather sent Bancroft PLLC’s Conor Dugan, another lawyer who had served in the George W. Bush administration DOJ, to handle the arguments.
Speaking to Metro Weekly after the hearing, Borelli said, “Judge White thanked the DOJ for having sent the head of the civil division” to argue the case himself, adding that it made “a statement of the significance that DOJ and the administration place on this question.”
According to the Department of Justice, this is only the second time that West has appeared in court as assistant attorney general to argue a case. The other time, DOJ spokeswoman Nana Efua Embil told Metro Weekly, “was for a national security case.” Prior to joining the Obama administration in 2009, West had been a partner at Morrison & Foerster in the firm’s San Francisco office. Earlier in his time at DOJ, West was criticized for having signed his name to an administration brief filed in June 2009 that defended DOMA by arguing, among other points, that “DOMA does not discriminate against homosexuals in the provision of federal benefits.”
Here’s a press release from Lambda Legal following the arguments:
The U.S. District Court for the Northern District of California heard oral arguments today in the case brought by Lambda Legal and Morrison & Foerster challenging the constitutionality of the so-called Defense of Marriage Act (DOMA) on behalf of Karen Golinski, a federal court employee denied spousal health coverage for her wife.
“Throughout this case, Karen Golinski has sought nothing more than what every heterosexual married employee in her office enjoys – the right to enroll her spouse in the company health plan. Because of DOMA, she can’t,” said Tara Borelli, staff attorney in Lambda Legal’s Western Regional Office in Los Angeles. “There is no excuse for this discriminatory law, and DOMA is on its last legs.”
“The demise of this discriminatory statute is long overdue,” said Rita Lin, associate attorney at Morrison & Foerster. ”In effect, DOMA produces circumstances where certain federal employees are compensated differently than their coworkers because of the gender of their spouses. That’s unconstitutional.”
This battle began in 2008, when Golinski, a 20-year employee of the U.S. Ninth Circuit Court of Appeals, sought to enroll her wife, Amy Cunninghis, in the employee health plan. Notwithstanding two separate orders by Ninth Circuit Chief Judge Alex Kozinski directing that Golinski be allowed to enroll Cunninghis in the health plan, the U.S. Office of Personnel Management (OPM) denied her request, citing DOMA. In April, Lambda Legal and 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.
Today’s arguments involve an attempt by the defenders of DOMA to get the case dismissed, and Golinski’s request that the court issue a final judgment in her favor, declaring DOMA unconstitutional and ordering that Golinski be allowed to enroll her spouse in her family health care plan, as her married heterosexual co-workers are permitted to do.