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judicial v. executive

Why It’s So Hard For Karen Golinski to Receive Shared Health Care Benefits: Power Struggles


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?

The legal kiddos at Lamba Legal says it’s the former; as OPM just made clear in rejecting Kozinski’s argument, Berry’s camp says the latter.

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In its argument denying Golinksi health benefits, OPM points to the Defense of Marriage Act, which must be repealed in order for OPM to meet the judge’s order.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.

    • Josh NYC

      DOMA = Bill Clinton

      Dec 22, 2009 at 11:44 am · @ReplyReply to this comment ·
    • Brian NJ

      Because DOMA is clearly unconstitutional, OPM was obligated to follow the court order, especially. Government officers are sworn to follow a higher law than statutes, are they not? They are required to obey and conform to the dictates of the Constitution and are sworn to do so. Without a legitimate governmental interest in following DOMA, are they obligated to follow the court order? Yes, clearly.

      Dec 22, 2009 at 12:14 pm · @ReplyReply to this comment ·
    • Jaroslaw

      As much as I hate to say this, I think Federal Law trumps the judge. Please correct me if I’m wrong, but doesn’t the law have to be followed until SCOTUS determines it is unconstitutional or it is repealed by the legislative body that input it, in this case Congress?

      Dec 22, 2009 at 1:48 pm · @ReplyReply to this comment ·
    • Jaroslaw

      Brian in NJ – I typed this before your response and forgot to send it. Let me know your thoughts.

      Dec 22, 2009 at 1:49 pm · @ReplyReply to this comment ·
    • wondermann

      Jaroslaw, you are right.

      Dec 22, 2009 at 2:40 pm · @ReplyReply to this comment ·
    • FakeName

      Brian, the argument that OPM is making is that the judge was not functioning in his capacity as a judge, but in his capacity as an administrator. His order is not an enforceable “court order” because it is not issuing as the result of a court proceeding. This strikes me as an exercise in nit-pickery and pettiness on the part of the OPM. They could have quietly acquiesced to the order instead of making a public stink about it.

      As much as I hate to say this, I think Federal Law trumps the judge. Please correct me if I’m wrong, but doesn’t the law have to be followed until SCOTUS determines it is unconstitutional or it is repealed by the legislative body that input it, in this case Congress?

      SCOTUS is the court of last appeal and the ultimate arbiter of constitutional interpretation but any judge may declare a law unconstitutional. This judge however bent over backwards to avoid ruling on the constitutionality of DOMA, as he explained in his order. He rather torturously reads the Federal Employee Health Benefits Act as setting a minimum standard for benefits while not preventing the feds from contracting for coverage that exceeds those minimum standards. His order here:

      Another judge in the 9th Circuit, in another case, has ruled that refusing to enroll same-sex spouses in benefits programs is a Fifth Amendment violation and that there is no rational basis for denying benefits to same-sex spouses of federal employees. OPM refused to enroll that employee’s spouse too, so the judge ordered OPM to reimburse the employee for the cost of buying equivalent coverage. I’ve seen no recent word whether he’s been paid anything yet.

      Dec 22, 2009 at 2:52 pm · @ReplyReply to this comment ·
    • Jaroslaw

      Fakename- a quick net search of “how are laws found to be unconstitutional” gave a bundle of hits which said this or that judge found law “X” to be unconstitutional so you appear to be correct.

      However, I have to disagree with you just a little in that OPM could (not) have done anything “quietly” – our right wing nutballs would have screamed to the heavens and made it news all over the place.

      Dec 22, 2009 at 3:49 pm · @ReplyReply to this comment ·

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