The showdown between federal employee Karen Golinski and John Berry’s Office of Personnel Management comes down to this: Was Judge Alex Kozinski — who demanded OPM enforce Golinkski’s right to health care benefits for her lesbian partner — acting as a judge with the full force of the judiciary branch, or as Golinski’s administrator and someone OPM can dismiss?
Lambda Legal’s Marriage Project director Jennifer Pizer says: “Is it possible for Judge Kozinski to be acting in some capacity other than as an Article III judge? We think when he’s sitting in an employee grievance procedure, he is an Article III judge, that’s the only capacity he has. … [OPM is] stating their position via press statements. If they have confidence in their analysis, they should do what people do in legal proceedings.”
In its argument denying Golinksi health benefits, OPM points to the Defense of Marriage Act, which must be repealed in order for OPM to meet the judge’s order. (Chris Geidner has a worthwhile analysis of the matter before Judge Kuzinski, and a similar one before fellow Ninth Circuit Judge Stephen Reinhardt, who turns out to agree with OPM’s reasoning, but sides with Kuzinski’s conclusion, because Reinhardt believes DOMA to be unconstitutional, and thus fair to ignore.)
All of which boils down to: a squabble over who has more authority. Golinski’s defenders say Kozinski, as a judge, ruled in her favor and OPM has no choice but to comply. OPM, meanwhile, says federal law (DOMA) trumps the judge, who wasn’t even making a decision in an official capacity. And until all that gets sorted out? Golinski’s partner Amy Cunninghis continues to be discriminated against.