Lesbian CoupleImagine working as a staff attorney for one of the most progressive and occasionally influential Courts of Appeals in the United States. You have a seemingly stable job practicing law that comes with a decent, if not attractive, salary and full benefits for you and your family, including health, vision, and dental insurance and a retirement plan. In addition, you work according to typical governmental hours (9-5), with some exceptions of course, national holidays off and a paid vacation time. An attorney's dream. Unless you are in a same sex marriage, in which case your benefits only apply to you, and not your spouse. It is for this reason, a denial of health benefits for her wife, that a Ninth Circuit staff attorney filed suit against the Department of Justice.

Karen Golinski, a staff lawyer for the 9th U.S. Circuit Court of Appeals, has been trying to secure spousal benefits for her wife, Amy Cunninghis,  since shortly after the couple was married.  Their legally recognized marriage occurred during the brief window in 2008 when entering into same-sex marriages was legal in California. Golinski's boss, Chief Judge Alex Kozinski, approved her request, but the Office of Personnel Management told the insurer not to process her application, thus denying coverage.

The challenge specifically relates to the application of the Defense of Marriage Act when interpreting eligibility for benefits as a federal employee. The problem arises because the Act states that only opposite sex couples are considered married, and in order to be eligible for benefits, a couple must be married. Thus, same sex couples are legally incapable of meeting the definition.

The relevant section at issue, is as follows:

In determining the meaning of any Act of Congress, or of any
ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word `marriage' means
only a legal union between one man and one woman as husband and wife,
and the word `spouse' refers only to a person of the opposite sex who is
a husband or a wife.

U.S. District Court Judge Jeffrey White ruled yesterday that because DOMA unconstitutionally discriminates against same-sex married couples, and that by denying them access to spousal benefits, the government's refusal to furnish health insurance to the plaintiff's wife is unjustified. "DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law … by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse,"

The Department of Justice initially defended the case, but after  President Obama and Attorney General Eric Holder announced that they would no longer defend the Act, the head of the civil division of the DOJ actually argued on behalf of the plaintiff. DOMA was defended by lawyers representing the Bipartisan Legal Advisory Group, an allegedly bipartisan group convened by House Speaker John Boehner.

It seems that finding DOMA unconstitutional is the only logical result that can follow the 9th Circuit's opinion on Proposition 8 in California, since this district court falls within its jurisdiction, and is effectively applying the logic of that opinion (e.g. see rational basis language) to a plaintiff with a federal job within that jurisdiction. Granted, DOMA is a federal law, but its application has the same result as Proposition 8. I fail to see anyway in which DOMA can continue to be applied constitutionally in situations like this one. It will be interesting to see how courts in different circuits rule.

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