The 9th Circuit Court of Appeals has refused to fast-track a full-court review of an order declaring unconstitutional the denial of federal health benefits to a legally married lesbian couple in California. Conservatives in the House had asked the full court to order an 11-judge, en banc, review of the ruling by U.S. District Judge Jeff White.
An order issued Tuesday showed that no judges on the court requested a vote on the en banc review, but instead will send the case to a three-judge panel as the routine course for an appeal. The court set the week of September 10-14 in San Francisco for the hearing.
The case stems from the lawsuit filed by Karen Golinski challenging the denial of federal health benefits for Amy Cunninghis. Golinski and Cunningham, who have been partners for 20 years, registered as domestic partners in 1995 and were legally married in August 2008, during the brief window when it was legal in California. California voters approved Proposition 8, banning same-sex marriage. That law is also on appeal separately.
Golinski is a staff attorney for the 9th Circuit and the court’s order indicates Chief Judge Alex Kozinski and Judge Stephen Reinhardt did not participate in the en banc vote by the court.
After Blue Cross denied Golinski’s insurance request, Kozinski, as court administrator, said that despite DOMA Golinski was denied coverage based on sexual orientation alone and ordered the coverage. The Office of Personnel Management refused and the lawsuit followed in 2010.
Judge White declared unconstitutional the Defense of Marriage Act, which denies federal benefits to same-sex married couples in February. Conservative members of Congress then notified him in February that they planned to appeal.
That notice was filed by lawyers for the Bipartisan Legal Advisory Group of the U.S. House of Representatives.
Obama White House Switches Sides
In February 2011 President Barack Obama told the Attorney General to cease the legal defense of DOMA in any pending court actions. In particular, the challenge covers section 3 of the act, which denies marriage-based federal benefits to same-sex couples. So a majority of a five-member member committee in Congress stepped in to say they would defend the law.
Last week, in a national TV interview, the President said he believes same-sex couples should be allowed to marry.
Golinski argues the law violates her equal protection and due process rights.
“The passage of DOMA only serves to undermine providing a stable environment for children of same-sex married couples whose children would otherwise be raised in a household bestowed with all of the federal benefits of marriage, including financial support and social recognition,” White wrote.
As to the argument in Congress that DOMA acts to defend and nurture traditional marriage, White said, “tradition alone, however, cannot form an adequate justification for a law.”
DOMA does nothing to encourage opposite-sex couples to marry, he said.
In addition, White knocked the Congressional argument that DOMA asserts the interests of traditional notions of morality.
“The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation,” he wrote. “The long history of discrimination against gay men and lesbians does not provide a rational basis for continuing it,” he concluded.
He ordered a permanent injunction against OPM’s decision to deny health benefit enrollment to Golinski and her wife.
The judge is no lefty. He was a Republican appointee of President George W. Bush in 2002, and the only Bush appointee on California’s Northern District Court. He’s conservative on criminal matters generally.
He served for a year as a lawyer in the U.S. Justice Department’s criminal division between 1970 and 1971 and again from 1977 to 1978 as an interim assistant U.S. Attorney in the District of Maryland. He had a private civil practice in San Francisco from 1978-2002.
Case: Golinski v. U.S. Office of Personnel Management, No. 12-15388 (9th Circ. Appeal)
Golinski opinion: No. C10-257JSW (N. District Court)