Golinski v. United States Office of Personnel Management
Karen Golinski, a federal court employee, sought to add her spouse, Amy Cunninghis, to her employer-provided health benefits plan after they were married in California in 2008. Since Golinski works as a lawyer for the Ninth Circuit, Chief Judge Alex Kozinski, acting in an internal administrative capacity, ordered in 2009 that Golinski be given the family coverage after she filed an internal employment discrimination complaint. But the Office of Personnel Management (OPM), part of the executive branch of the federal government, thwarted those administrative orders and refused to allow Golinski to enroll her spouse for health coverage, arguing that the so-called Defense of Marriage Act (DOMA) prevented OPM from recognizing Golinski’s marriage.
Lambda Legal and Morrison & Foerster LLP filed suit in federal district court seeking to stop OPM’s interference with the administrative finding that Golinski be treated equally. We requested enforcement of the court's non-discrimination rule arguing, at the time, that the court administrator had the authority to determine employee eligibility for benefits without reference to DOMA. Then in February of 2011, President Obama and Attorney General Eric Holder announced a dramatic policy shift based on their conclusion that DOMA is unconstitutional. Although the Department of Justice would no long be defending DOMA in court it also made clear that the government will continue to enforce DOMA as long as the law is still in place and will continue to deny spousal benefits to all federal employees with a same-sex spouse.
Since OPM was being defended by the Department of Justice – which had defended OPM’s refusal to cover Karen’s spouse – the new development threw a curve ball into the litigation. The district court judge did not immediately rule in Golinski’s favor, deciding instead that OPM had the authority to determine eligibility – but allowed us to file an amended complaint arguing that DOMA is unconstitutional.
Lambda Legal filed the amended complaint on Golinski’s behalf seeking to overturn DOMA Section 3, arguing that it violates the Constitution. This time, the Department of Justice (DOJ) argued against DOMA instead of defending it.
In February of 2012, Federal District Court Judge Jeffrey White issued a sweeping order declaring Section 3 of DOMA unconstitutional. That ruling was appealed by the Bipartisan Legal Advisory Group of the House of Representatives that was now defending DOMA on behalf of the Republican House Majority.
While the case is pending before the Ninth Circuit Court of Appeals, the U.S. Solicitor General’s Office has asked the U.S. Supreme Court to review this case “prior to judgment” – that is, before review by the court of appeals. The Department of Justice argues that Golinski is a good vehicle for the Supreme Court to consider because Judge White, in a particularly persuasive and nuanced analysis, decided that heightened scrutiny applies to sexual orientation discrimination and applied that standard to find Section 3 of DOMA unconstitutional, accepting DOJ’s argument in the case.
The U.S. Supreme Court, our nation’s highest court, will be the ultimate court to decide whether DOMA violates the constitution.
There are three other similar cases brought by GLAD and the ACLU pending review as well.
- September 2, 2008 Karen Golinski submits an application to enroll her spouse Amy Cunninghis under her employer-provided insurance plan.
- October 2, 2008 Golinski files a compliant under the Ninth Circuit's Employment Dispute Resolution Plan that the denial of insurance coverage for her spouse constitutes prohibited discrimination.
- January 13, 2009 Chief Judge Alex Kozinski orders that Golinski be allowed to enroll Cunninghis om the Blue Cross/Blue Shiled plan that covers Golinski and her son.
- February 20, 2009 OPM announces it will ignore Kozinski's ruling and directs Blue Cross not to process Golinski's insurance application.
- November 19, 2009 Judge Kozinski again orders OPM to process Golinski's application and that she be compensated for back pay.
- December 18, 2009 OPM announces via press release it will ignore Kozinski's order.
- January 20, 2010 Lambda Legal files suit against the federal government in the U.S. District Court for the Northern District of California.
- December 17, 2010 Court hears oral argument.
- February 23, 2011 In response to an announcement that President Obama and Attorney General Eric Holder have concluded that Section 3 of DOMA is unconstitutional and inappropriate to defend, Judge Jeffrey White addresses a series of four questions to the government asking how it plans to proceed in Golinski v. OPM.
- February 28, 2011 Government attorneys reply that they intend to continue to enforce DOMA—and to fight rulings ordering benefits for Golinski—until a court orders them not to or until Congress itself repeals DOMA.
- March 3, 2011 Lambda Legal replies to the government's answers.
- March 16, 2011 Judge grants motion by government attorneys to dismiss the lawsuit, but sets an April 15 deadline for an amended complaint directly challenging the constitutionality of DOMA.
- April 14, 2011 Lambda Legal and co-counsel file amended complaint directly challenging the constitutionality of DOMA.
- July 1, 2011 The U.S. Justice Department files a strongly worded brief arguing that DOMA is unconstitutional.
June 3, 2011 The Bipartisan Legal Advisory Group (BLAG) intervenes on behalf of leadership in the U.S. House of Representatives to defend DOMA.
June 3, 2011 BLAG moves to dismiss Plaintiff's case.
July 1, 2011 Plaintiff moves for summary judgment, asking the court for a final order holding DOMA unconstitutional.
December 16, 2011 Court hears oral argument.
February 22, 2012 U.S. District Court Judge Jeffrey White declares DOMA unconstitutional as applied to Karen Golinski.
April 11, 2012 Ninth Circuit expedites briefing in the appeal and sets oral argument for week of September 10.
July 3, 2012 The Justice Department asks the U.S. Supreme Court to consider the case.
July 10, 2012 132 members of Congress, 70 companies, the state of California—as well as hundreds of associations, legal scholars, religious, labor and civil rights groups and others—join 13 friend-of-the-court briefs urging the Ninth Circuit Court of Appeals to find DOMA unconstitutional.
December 7, 2012 Out of the four DOMA challenges the Supreme Court was asked to consider, including Golinski v. OPM, the Court agrees to hear United States v. Windsor.
March 27, 2013 The Supreme Court hears oral argument in United States. v. Windsor.
Tara Borelli and Jon Davidson
James R. McGuire, Gregory P. Dresser, Rita F. Lin and Aaron D. Jones of the law firm Morrison & Foerster LLP