In 2008, Karen Golinski filed an application to place her spouse, Amy, on her federal health care policy. Karen is employed at the Ninth District Court of Appeals in San Francisco.
OPM refused to allow Golinski to add her spouse as a covered dependent because the Defense of Marriage Act (DOMA) prohibits recognition of same-sex marriage. Following OPM's decision, Golinski appealed to the Ninth Circuit's Employment Dispute Resolution Plan. She charged that OPM is discriminating against her.
OPM said "no" and refused to comply with the Judge's order. OPM claimed, the Defense of Marriage Act (DOMA) is the controlling law and prohibits recognition of Golinski's marriage. The agency directed the insurer, Blue Cross Blue Shield to ignore the court's order and not process the application.
Now, most folks would think it takes a great deal of chutzpah to ignore an order from a federal judge--especially the Chief Judge. But, OPM obviously believed it was on solid ground.
By December, OPM had not budged. It's a stand-off. An federal agency thumbing its executive branch nose at a U.S. Appellate Court Judge.
So, Chief Judge Kozinski again ordered OPM to accept the application and instruct Blue Cross to process it. And, again, OPM refused. But, this time the agency issued a press release letting everyone know it was ignoring the judge's order. It makes you wonder if anyone was thinking this through.
In January 2010, Lambda Legal filed a fedral lawsuit, Golinski v. Office of Personnel Management, in U.S. District Court, Northern District of California.
Less than a year later, oral arguments are heard in District Court. But, while the case is pending, the Obama Administration and the Department of Justice decide Section 3 of DOMA is unconstitutional and they will no longer defend the law in court. So, the federal judge, Jeffrey White, asks the government just what it intends to do in the Golinski case.
The government responds that it will enforce DOMA and oppose any rulings ordering it to process Golinski's application unless a court orders them to do so.
Now, forgive me for seeming a bit muddled, but isn't that what Judge Kozinski did? Twice?
The government then filed a motion to dismiss the lawsuit. And, Judge White granted it, but gave Golinski the opportunity to refile and challenge DOMA's constitutionality. And, that is exactly what Lambda Legal did in April 2011.
The Department of Justice, representing OPM, responded with a definitive brief claiming that DOMA is, (wait for it) unconstitutional.
But, that's not all. While DoJ is filing its brief, the United State House of Representatives is unhappy that no one wants to argue to uphold DOMA. So, the Republicans, I mean the House leadership, runs to the Bipartisan Legal Advisory Group (BLAG) to intervene in the lawsuit. BLAG has been around since 1993 and its purpose is direct the House Office of General Counsel.
The House appropriated $1.5 million to defend DOMA. Originally, fees were to be capped at $500,000, but that didn't last long. And, since BLAG is incapable of handling the lawsuit, they hired outside counsel to represent them. Paul Clement, former U.S. Solicitor General, and his firm, Bancroft PLLC, is lead counsel for BLAG.
No one has explained where the money is coming from. Perhaps they added it to the deficit.
So, here we are, in U.S. District Court in San Francisco. The scene is set. It's Lambda against the United States House of Republicans. BLAG moves to dismiss.
But, in February 2012, Judge White decided that DOMA is unconstitutional as it is applied to Karen Golinski. That set the stage for an appeal....to the Ninth District Court of Appeals. You remember, the court where the Chief Judge already told OPM...twice...to process the application. Granted, that was an administrative hearing, but, still.
In April, 2012, the Ninth Circuit put the case on the expedited docket--the fast track--and set oral argument for September.
On July 3, 2012, the U.S. Department of Justice asked the United States Supreme Court to hear the case. That would by-pass the Ninth Circuit.
On July 10, 2012, a dozen friend-of-the-court briefs were filed, including one from over 130 members of Congress, asking the Ninth Circuit to hold that DOMA is unconstitutional.
Now, we wait to hear from the U.S. Supreme Court. Will they take the case? Will they take the Golinski appeal along with the cases out of the 1st Circuit in New England? Will they join all the cases where courts have held DOMA is unconstitutional and the decide the issue once and for all?
We will just have to wait and see.