In a deeply disappointing decision, the Office of Personnel Management (OPM) formally stated today that it will not provide spousal benefits to the same-sex spouse of an employee of the U.S. Court of Appeals for the Ninth Circuit. (The Advocate reported about the announcement this afternoon, and the full statement from OPM is available there).
Earlier this year, Karen Golinski, a staff attorney for the Ninth Circuit, filed an administrative grievance based on her inability to obtain benefits for her spouse. That complaint was eventually reviewed by Chief Judge Alex Konzinski, who concluded in a written opinion that the denial was discriminatory and subsequently ordered OPM, which administers the Federal Employee Health Benefits Plan, to provide benefits to Golinski’s spouse. According to a statement issued today by OPM, the Department of Justice has advised the agency that they believe it cannot lawfully award those benefits because of the Defense of Marriage Act (DOMA) and that Judge Kozinski’s order, because it was issued as part of the administrative grievance process rather than as the opinion of a federal court, is not binding. OPM’s statement, authored by its openly lesbian General Counsel Elaine Kaplan, acknowledged that the denial of benefits is “painful” and noted that the agency did not come to its decision “lightly.”
Regardless of whether OPM could legally provide benefits in this instance, DOMA remains, without a doubt, a massive impediment to the full equality of LGBT Americans in a whole host of ways. Issues like these will arise more and more frequently with the increasing number of states that recognize marriage equality. If OPM and the Obama administration are, in fact, pained by this difficult position and the many more they will face in coming years, then they have a solution – go to Congress with an unequivocal message to end this discrimination against same-sex couples once and for all. Strongly and unequivocally support repeal of DOMA through the Respect for Marriage Act and press for Congress to act on it. In short, step up – for Karen Golinski, her spouse and the thousands and upon thousands of same-sex couples who suffer in innumerable ways under DOMA.
It should be noted that OPM has been a strong supporter of the Domestic Partnership Benefits and Obligations Act (DPBO), which would extend benefits to the same-sex partners of federal employees across the country, even where marriage is not yet available. Earlier this week, DPBO moved one step further ahead, passing out of the Senate Homeland Security and Governmental Affairs Committee. While DPBO has come a long way, only a continued, unfailing call for its passage by the President will see it through. While the Administration has concluded that DOMA ties its hands in this instance, nothing stands in the way of their unfettered support for these critical pieces of legislation.
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