Gov’t refuses to OK health coverage for gay worker’s wife, says judge’s order is ‘nonbinding’
By Lisa Leff, APFriday, December 18, 2009
Feds again nix health care for gay worker’s wife
SAN FRANCISCO — The U.S. Office of Personnel Management still thinks it can’t authorize health care coverage for the same-sex spouse of a federal court employee even though a judge has ordered the agency to do, a government lawyer said Friday.
Elaine Kaplan, the office’s general counsel, said in a statement issued Friday that the Department of Justice has determined that the 1996 Defense of Marriage Act supersedes the recent ruling by Ninth U.S. Circuit Court of Appeals Chief Judge Alex Kozinski. DOMA, as the law is known, prohibits the government from recognizing same-sex unions.
“As the President has explained, the Administration believes that this law is discriminatory and needs to be repealed by Congress,” Kaplan said.
The dispute involves Karen Golinski, a staff lawyer at the 9th Circuit’s San Francisco headquarters. Earlier this year and again last month, Kozinski ruled that Golinski is entitled to enroll her wife in her employer-sponsored health plan because the court has a policy prohibiting discrimination against gay workers.
Because the judge was acting in an administrative role as an employer instead of in a court case, his order “does not supersede our obligation to comply with existing law because it is not binding on OPM,” Kaplan said.
Golinski’s lawyer, Jennifer Pizer of the gay rights group Lambda Legal, disagreed that Kozinski’s determination was any less authoritative because it arose out of an employee benefits dispute.
“The question we have for OPM and DOJ is, are you really saying that employees of these federal agencies have greater authority, a greater capacity to interpret the requirements of federal law than a dully appointed…judge who is also the chief judge of the circuit?” Pizer said.
Although Kozinski’s ruling applied only to Golinski’s situation, it has gotten a lot of attention because President Barack Obama has pledged to champion gay rights issues and John Berry, the director of the Office of Personnel Management, is the highest-ranking gay official in the administration.
Despite OPM’s resistance, the situation could soon be resolved. Congress is considering a bill that would extend health and retirement benefits to the same-sex spouses and domestic partners of government employees. Berry has said he expects to come up for a vote next year.
