By Joe Davidson
Tuesday, December 22, 2009; A17

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added: "As the President has explained, the Administration believes that this law is discriminatory and needs to be repealed by Congress -- that is why President Obama has stated that he opposes DOMA and supports its legislative repeal."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

Empathy with Golinski's situation is all well and good, but cold comfort if her spouse needs hospital care.

"I am shocked by OPM's continued defiance of Chief Judge Kozinski's orders," said Golinski, a court staff attorney. "I had hoped to begin the new year with health insurance for my spouse on my existing family plan. It is stressful for my family that this is not going to happen at this time."

What's so frustrating and aggravating to Golinski's attorney, Lamda Legal's Jennifer C. Pizer, is that the OPM did not participate in the process that led to Kozinski's order, yet the agency used its power to block it.

"We are once again surprised and shocked that the Obama Administration is rejecting yet another chance to do the right and legally required thing," she said. "This is not the approach to issues of LGBT [lesbian, gay, bisexual, transgender] equality we had anticipated and deserve from the Obama Administration."

This isn't the first time the administration has disappointed those who support human rights for gays and lesbians. It's not even the first time in this case.

In January, Kozinski ruled that denying Golinski a benefit of federal employment because she married a woman instead of a man, which she legally could do in California at the time, "violates this court's guarantee of equal employment opportunity," as he recalled in his November document. To his dismay, the OPM responded in February with a letter that cited DOMA and said FEHBP "may not provide coverage for domestic partners, or legally married partners of the same sex, even though recognized by state law."

That letter was written before Obama's team took over the agency, but its message remains the same today.

"The decision in this matter was not reached lightly -- after we learned of this development, we examined our options and consulted with the DOJ," Kaplan's statement said. "DOJ advised us that the order issued by Judge Kozinski does not supersede our obligation to comply with existing law because it is not binding on OPM."

No matter how distasteful that obligation may be.