DOMA is challenged

Will Buchanan of The Christian Science Monitor reported on yesterday's challenge to the Defense of Marriage Act that prohibits the federal government from recognizing same-sex couples.  The challenge began in a federal courtroom in Boston.  At issue is whether or not gay couples legally married under state law are entitled to the same federal benefits that heterosexual couples receive.

Wrote Buchanan:

Eight same-sex couples and three widowers, who filed their suit last year, are challenging the 1996 federal law known as DOMA, which bans gay marriage. They argue DOMA is unconstitutional because it denies them equal protection under the law.

The case puts the Obama administration in an unusual situation. The president has said he would like to see DOMA repealed, but the Justice Department is tasked with defending the law.

“The government does not presently support DOMA and would like to see it repealed, But we do argue for its constitutionality,” said Justice Department attorney W. Scott Simpson at the onset of his argument. He filed a motion to dismiss the challenge to the federal law, arguing for the US government’s right and responsibility to apply federal law as it sees fit, regardless of some states’ decision to “experiment” with broadening the traditional definition of marriage.

This is not the first time that the Obama Administration has defended the discriminatory law.  A previous defense used the usual insulting language heard from the Bush administration to deny same-sex couples the basic rights enjoyed by heterosexual couples.


Gay & Lesbian Advocates and Defenders (GLAD) is supporting the challenge.  This is the same group that won the 2003 case in Massachusetts that legalized same-sex marriage.  GLAD attorney Mary Bonauto (center of photo, above) asked the court to rule in favor of her clients in a summary judgment – a decision made before a full trial ensues. She argued that DOMA’s legislative history clearly shows it to be an inappropriate and unconstitutional effort by Congress to express “moral disapproval of homosexuality.”

Buchanan describes the plaintiffs as "a retiree of the federal Social Security Administration who was denied health insurance for his spouse; three widowers who were denied death benefits for funeral expenses; and couples who have paid more in federal taxes because they are not allowed to file joint returns, according to the Associated Press."

New Hampshire Rings in the New Year with the First Same-Sex Marriages

The same sex marriage bill that New Hampshire Governor John Lynch (left) signed into law this year became official at the stroke of midnight in New Hampshire.  According to the Associated Press, about 15 couples gathered in the cold at midnight to exchange vows outside the New Hampshire State House in Concord.

Some couples have opted not to exchange vows for a second or third time and instead wait for their civil unions to automatically change to marriages in 2011.  After December 31, 2010, New Hampshire will no longer offer civil unions, which Governor Lynch had also signed into law a number of years ago.

The switch from civil union to marriage changes nothing in the state benefits offered to same sex couples.  The term "marriage," however, could be of great significance of the Defense of Marriage ACt is repealed at the federal level.  Then the federal benefits of marriage (over 1,000 of them) would be available to married gay couples.

More news about the conflict between the judge and the executive branch

Last week I blogged about the conflict between the Obama Administration (specifically, the Office of Personnel Management or OPM) and Judge Alex Kozinski of U.S. Ninth Circuit Court of Appeals, who decided that one of its employees, Karen Golinski, was eligible for spousal benefits for her partner. OPM  contacted Blue Cross Blue Shield, the provider of health insurance, and requested they not follow the judge's order.  Judge Kozinski responded by writing that the separation of powers required the administration to allow the coverage for Golinski's partner.  OPM responded with two Friday afternoon press releases stating it objections , including an assertion that the court order violated the Defense of Marriage Act (DOMA) a law that Candidate Obama  stated should be repealed.

Sound confusing?  It is.  But maybe a statement from Judge Kozinski released on Tuesday will help clarify.  In it, he ruled that because the Obama administration never formally appealed in court to his decision.  Friday afternoon press releases actually don't mean anything in a court of law.  So now Judge Kozinski has ruled, as Carol King once sang, it's too late, baby, it's too late.  Specifically he wrote:


The time for appeal from my orders in this matter, dated January 13, 2009 and November 19, 2009, has expired. Only the Blue Cross and Blue Shield Association ("Blue Cross'') has filed a timely notice of appeal; it petitioned the Judicial Council for review of my November 19, 2009, order on December 17, 2009. My prior orders in this matter are therefore final and preclusive on al1 issuesdecided therein as to others who could have, but did not appeal, such as the Office of Personnel Management ("OPM'') and the Administrative Office of the United States Courts.

As the jurisdictional issues presented in Blue Cross's petition for review are separate and distinct from those concerning my now conclusively-determined jurisdiction over governmental entities such as OPM, l authorize Ms. Golinski to take what further action she deems fit against any entity other than Blue Cross, without waiting for the Judicial Council's disposition of Blue Cross's appeal.
Translation?  The Obama Administration and OPM has lost its chance to appeal.  And Ms. Golinksi is free to pursue whatever means necessary (except sue Blue Cross) to  acquire the benefits Let's see where this goes now.

Many thanks to Lambda Legal for providing this information on its website Tuesday.

A blog entry I didn't want to write

It really saddens me to write this entry.  In October, I argued that we should be patient with the Democrats and President Obama about LGBT issues.  I'm still willing to be patient in repealing Don't Ask, Don't tell as well as the Defense of Marriage Act. I know President Obama has lots on his plate.  I'm willing to be patient, but my patience is wearing thin.  Recent news reports say that Democratic leaders will not address ANY LGBT concerns next year, for fear of losing seats in the Congressional elections.  Newsflash: after the health reform mess, Afghanistan, the lack of support for LGBT issues, the Democratic base might very well stay home next November.  We can actually learn from Republicans.  George Bush always rallied his base when things got tough.  The base responded.

Again, I'm patient about legislation.

But I'm not patient about obstructionist tactics that remind me far too much of the Bush Administration.  Case in  point: the recent resistance from the Obama Administration to follow a court order and allow health benefits for the partner of a lesbian federal employee.   Here are the facts:


1.  Chief Judge Alex Kozinski (left) of the U.S. Ninth Circuit Court of Appeals decided that one of its employees, Karen Golinski, (photo right; in pink) was eligible for spousal benefits for her partner.

2. The Obama Administration intervened, citing a potential violation of the "Defense of Marriage Act" -- a law Candidate Obama called "abhorent" during the election and promised to repeal.

3. Chief Judge Kozinski  -- a Reagan appointee! -- further concluded in a court order that, as described by Lambda Legal, "the Ninth Circuit MUST not discriminate against Karen Golinski with respect to the health insurance benefits portion of her compensation, and that the Separation of Powers doctrine of the U.S. Constitution authorizes the court to take appropriate steps to treat its workers fairly, and prevents employees of the Executive Branch from interfering with the functioning of the Judicial Branch in these circumstances."

4. The Obama Administration has ignored the court order and refuses to provide health care benefits to the lesbian couple.

I can be patient about laws.  I can even be patient about marriage.  It's one thing not to advance the agenda.  It's quite another to obstruct progress.  As of today, the Obama Administration has refused to even engage in legal arguments about the case.  Instead, it has stated -- on Friday afternoons, the dead time in the media -- that it will not comply with the court order.  If this were an issue that was more publicized, it could be considered a constitutional crisis. 

This attitude saddens me beyond belief.  When I voted for Candidate Obama, I knew he would disappoint many of us because expectations were just too high.  I understood that.  I knew that he would try to govern from the middle.  Still, my vote for him was the most enthusiastic vote of my life.  What I didn't expect -- and what shocks me -- is that his administration would actually be a roadblock to equality.


I hope the administration comes to its senses and realizes that it is acting in complete contradiction to the the "hope" message that propelled Barack Obama to victory.  If the Democrats regain their footing and realize what they should be about, I'll gladly be with them.  Until then, the "Proud to be a Democrat" bumper sticker comes off my car.