OPM defies order on same-sex benefits

By Joe Davidson
Tuesday, December 22, 2009

With logic only a lawyer -- and perhaps only a government lawyer -- could love, the Obama administration is refusing to obey a federal judge's order that agrees with a position the administration supports.

Last month, Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit, ordered the Office of Personnel Management to allow health insurance companies serving federal staffers to provide benefits for same-sex spouses of the court's workers.

But on Friday, the OPM told the attorney for Karen Golinski, a court employee, that the agency would not obey the judge's order.

"OPM must administer the FEHBP [Federal Employees Health Benefits Program] in a lawful manner, and the Department of Justice (DOJ) has advised the OPM that providing those benefits would violate the so-called 'Defense of Marriage Act,' " OPM General Counsel Elaine Kaplan said in a statement.

The OPM is between a rock and a hard place because the Obama administration wants to ditch the act, a.k.a. DOMA, something Kaplan subtly made clear by calling it a "so-called" act.

To emphasize the point, she added: "As the President has explained, the Administration believes that this law is discriminatory and needs to be repealed by Congress -- that is why President Obama has stated that he opposes DOMA and supports its legislative repeal."

But in the meantime, the administration feels duty-bound to enforce what it believes is a bad law.

Kozinski, who was appointed by President Ronald Reagan, doesn't agree with that interpretation. "Even as limited by DOMA," the judge wrote, "the FEHBP permits judicial employees to provide health insurance coverage to their same-sex spouses."

In addition to a responsibility to enforce the law, administration officials say they are within their rights to ignore the judge's order because, they reason, he issued it in his capacity as the court's boss, not in his role as a judge. The judge's decision was not issued as a formal court order because Golinski's complaint went through the court's administrative Employee Dispute Resolution Plan, rather than a judicial process.

There's also the issue of separation of powers. Kozinski said ordering enrollment in insurance plans for same-sex spouses in the court's employ "is proper and within my jurisdiction. . . . With that responsibility must come power equal to the task."

But the administration reiterated that it doesn't consider the judge to be a judge in this case.

"It's important to understand that Judge Kozinski was acting as an administrative official in this matter, reacting to the concerns of an employee of the judiciary," Kaplan said. "He was not acting as a federal judge in a court case. This does not mean that the inability to extend benefits to Karen Golinski's spouse is any less real or less painful, but it is a critical point."

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