Today the Office of Personnel Management has officially announced its refusal to comply with Judge Kozinski’s order that the federal government must provide equal health insurance benefits for the same-sex spouse of a staff attorney of the Ninth Circuit. The federal government has asserted that Judge Kozinski acted “as an administrative official” and therefore his order is not legally binding to override the Defense of Marriage Act (“DOMA”).update
This is a very significant development. Now the plaintiff will have to seek a writ of mandamus to compel the federal government to comply with Judge Kozinski’s order. To do so, the plaintiff must first file a formal lawsuit in the federal court. The basis of such a lawsuit would be interesting. Although Kozinski’s administrative ruling is based largely on the doctrine of separation of powers, the disputed constitutionality of DOMA, which the federal government has cited as the reason for its defiance of Kozinski’s order, will surely be a centerpiece of the lawsuit.
So far, at least one judge of the Ninth Circuit——Judge Reinhardt, who also presided over a similar administrative proceeding involving a federal public defender’s claim for equal health insurance benefits for his same-sex spouse——has explicitly ruled that DOMA is unconstitutional as a violation of equal protection. Moreover, Judge Kozinski’s order has pointedly noted the invidious discrimination that the plaintiff has suffered as a result of DOMA. Therefore, if the plaintiff’s lawsuit challenges DOMA, it will have an excellent chance of prevailing in the Ninth Circuit. As a result, we may see the DOMA battle ground rapidly expanding from Massachusetts to California.
In early January 2010, the most exhaustive legal review of gay rights in the country’s history will come in a public trial led by Ted Olson and David Boies in Judge Walker’s San Francisco courtroom. And it’s very likely that DOMA will soon be challenged in California too. For the nationwide gay rights movement, federal courts in California will take center stage in the years to come.
12/18/09 SF Chronicle:
Golinski's counsel is Jennifer Pizer, Senior Counsel and Marriage Project Director for Lambda Legal. Pizer told the Chronicle that if the Obama administration continues to deny coverage to Golinski's spouse, Golinski will file a lawsuit.