Benefits fight brings lesbian couple to high court

LISA LEFF

Asso­ci­ated Press

SAN FRANCISCO — Like a lot of new­ly­weds, Karen Golin­ski was eager to enjoy the finan­cial fruits of mar­riage. Within weeks of her wed­ding, she applied to add her spouse to her employer-sponsored health care plan, a move that would save the cou­ple thou­sands of dol­lars a year.

Her ordi­nar­ily rou­tine request still is being debated more than four years later, and by the likes of for­mer attor­neys gen­eral, a slew of sen­a­tors, the Obama admin­is­tra­tion and pos­si­bly this week, the U.S. Supreme Court.

Because Golin­ski is mar­ried to another woman and works for the U.S. gov­ern­ment, her claim for ben­e­fits has mor­phed into a multi-layered legal chal­lenge to a 1996 law that pro­hibits the fed­eral gov­ern­ment from rec­og­niz­ing unions like hers.

The high court has sched­uled a closed-door con­fer­ence for Fri­day to review Golinski’s case and four oth­ers that also seek to over­turn the Defense of Mar­riage Act over­whelm­ingly approved by Con­gress and signed by Pres­i­dent Bill Clinton.

The pur­pose of the meet­ing is to decide which, if any, to put on the court’s sched­ule for argu­ments next year.

The out­come car­ries eco­nomic and social con­se­quences for gay, les­bian and bisex­ual cou­ples, who now are unable to access Social Secu­rity sur­vivor ben­e­fits, file joint income taxes, inherit a deceased spouse’s pen­sion or obtain fam­ily health insurance.

The other plain­tiffs in the cases pend­ing before the court include the state of Mass­a­chu­setts, 13 cou­ples and five wid­ows and widowers.

“It’s pretty mon­u­men­tal and it’s an honor,” said Golin­ski, a staff lawyer for the fed­eral appeals court based in San Fran­cisco who mar­ried her part­ner of 23 years, Amy Cun­ninghis, dur­ing the brief 2008 win­dow when same-sex mar­riages were legal in California.

The fed­eral trial courts that heard the cases all ruled the act vio­lates the civil rights of legally mar­ried gays and les­bians. Two appel­late courts agreed, mak­ing it highly likely the high court will agree to hear at least one of the appeals, Lambda Legal Exec­u­tive Direc­tor Jon David­son said.

“I don’t think we’ve ever had an occa­sion where the Supreme Court has had so many gay rights cases knock­ing at its door,” said David­son, whose gay legal advo­cacy group rep­re­sents Golin­ski. “That in and of itself shows how far we’ve come.”

The Supreme Court also is sched­uled to dis­cuss Fri­day whether it should take two more long-simmering cases deal­ing with rela­tion­ship recog­ni­tion for same-sex couples.

One is an appeal of two lower court rul­ings that struck down California’s voter-approved ban on same-sex mar­riage. The other is a chal­lenge to an Ari­zona law that made state employ­ees in same-sex rela­tion­ships inel­i­gi­ble for domes­tic part­ner benefits.

The last time the court con­fronted a gay rights case was in 2010, when the jus­tices voted 5–4 to let stand lower court rul­ings hold­ing that a Cal­i­for­nia law school could deny recog­ni­tion to a Chris­t­ian stu­dent group that does not allow gay members.

The time before that was the court’s land­mark 2003 rul­ing in Lawrence v. Texas, which declared state anti-sodomy laws to be an uncon­sti­tu­tional vio­la­tion of per­sonal privacy.

Brigham Young Uni­ver­sity law pro­fes­sor Lynn War­dle, who tes­ti­fied before Con­gress when law­mak­ers were con­sid­er­ing the Defense of Mar­riage Act 16 years ago, said he still thinks the law passes con­sti­tu­tional muster.

“Con­gress has the power to define for itself domes­tic rela­tion­ships, includ­ing defin­ing rela­tion­ships for pur­poses of fed­eral pro­grams,” War­dle said.

At the same time, he said, the gay rights land­scape has shifted rad­i­cally since 1996, cit­ing this month’s elec­tion of the first sit­ting pres­i­dent to declare sup­port for same-sex mar­riage and four state bal­lot mea­sures being decided in favor of gay rights activists.

“This is the gay moment, momen­tum is build­ing,” War­dle said. “The pol­i­tics are pro­found, and pol­i­tics influ­ence what the court does.”

For Golin­ski and Cun­ninghis, get­ting this far has been a long, some­times frus­trat­ing and some­times heart­en­ing journey.

Cit­ing the act, known as DOMA, the Office of Per­son­nel Man­age­ment, the fed­eral government’s human rela­tions arm, ini­tially denied Golinski’s attempt to enroll Cun­ninghis in the med­ical cov­er­age she had selected for her­self and the couple’s son, now 10.

“I got a phone call from OPM in Wash­ing­ton, D.C., ask­ing me to con­firm that Amy Cun­ninghis was female, and I said, ‘Yes, she is,’ and they said, ‘We won’t be able to add her to your health plan,” Golin­ski recalled.

Golin­ski knew that her employer, the 9th U.S. Cir­cuit Court of Appeals, had a pol­icy pro­hibit­ing dis­crim­i­na­tion against gay work­ers, so she filed an employee griev­ance and won a hear­ing before the court’s dis­pute res­o­lu­tion offi­cer, Chief Judge Alex Kozinski.

As a lawyer for the court, she felt awk­ward about pur­su­ing the issue, but she was also angry. Lambda Legal and a San Fran­cisco law firm offered to rep­re­sent her.

“I had been work­ing for the courts since 1990, and I feel, like every­body, I work hard and I’m a valu­able employee, and I’m not get­ting paid the same amount if I have to pay for a whole sep­a­rate plan for Amy,” she said. “It was really hurt­ing our family.”

Kozin­ski ruled that Golin­ski was enti­tled to full spousal ben­e­fits, but fed­eral offi­cials ordered Golinski’s insurer not to process her appli­ca­tion, prompt­ing the chief judge to issue a scathing opin­ion on her behalf.

After the gov­ern­ment refused to budge, Golin­ski sued in Jan­u­ary 2010.

The cou­ple had joked about whether they “would make a fed­eral case” out of their sit­u­a­tion. Cun­ninghis noted that their gen­ders would not have been an issue had Golin­ski worked in the pri­vate sec­tor or in state or local gov­ern­ment where domes­tic part­ner­ships are offered.

Because of DOMA, she said, “we don’t get access to a whole slew of benefits.”

The Depart­ment of Jus­tice orig­i­nally opposed Golin­ski in court but changed course last year after Pres­i­dent Barack Obama and Attor­ney Gen­eral Eric Holder said they would no longer defend the law.

Repub­li­can mem­bers of the Bipar­ti­san Legal Advi­sory Group, which over­sees legal activ­i­ties of the House of Rep­re­sen­ta­tives, voted to hire an out­side lawyer first to back the act in Golinski’s case and the four oth­ers, and to then appeal the rul­ings on its unconstitutionality.

U.S. Dis­trict Judge Jef­frey White handed Cun­ninghis and Golin­ski an unequiv­o­cal vic­tory in Feb­ru­ary, find­ing that anti-gay sen­ti­ment moti­vated Con­gress to pass DOMA.

In order­ing the gov­ern­ment to allow Golin­ski to enroll her wife in a fam­ily health plan, White rejected all of the House group’s argu­ments, includ­ing that the law was nec­es­sary to fos­ter sta­ble unions among men and women.

A group of 10 U.S. sen­a­tors who voted for DOMA in 1996 have filed a brief with the Supreme Court angrily denounc­ing the judge’s opin­ion and urg­ing the high court to over­turn it.

“It is one thing for the Dis­trict Court to con­clude that tra­di­tional moral views, stand­ing alone, do not jus­tify the enact­ment of DOMA; it is quite another to find that leg­is­la­tors who hold or express such moral views some­how taint the con­sti­tu­tion­al­ity of the statute,” they said.

For­mer U.S. Attor­neys Gen­eral John Ashcroft and Edwin Meese also weighed in, telling the court that Obama had failed in his duty and set a dan­ger­ous prece­dent by declin­ing to defend DOMA.

As a result of White’s rul­ing, Cun­ninghis was allowed in March to be added to Golinski’s health plan.

Golin­ski so far is the only gay Amer­i­can who has been allowed to begin receiv­ing fed­eral ben­e­fits while DOMA remains in effect, a devel­op­ment that could be reversed if the Supreme Court upholds DOMA.

Until then, the cou­ple said they are going to trust that the tide of his­tory is mov­ing toward gay rights.

“It seems so sim­ple to us: just put me on the fam­ily health plan,” Cun­ninghis said. “It’s much big­ger than that obvi­ously, yet it isn’t.”

Posted by AP News on Nov 25 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.