Obama Administration refuses to follow Fed Judge's order to provide insurance benefits to family

[ruggerson]

(12-18) 17:45 PST SAN FRANCISCO -- The Obama administration refused Friday to follow a federal judge's order to provide insurance benefits to the wife of a lesbian court employee in San Francisco and said its hands were tied by a discriminatory law.

"This issue shows exactly why Congress needs to repeal" the law, which prohibits federal benefits to same-sex couples, government lawyer Elaine Kaplan said in a message to attorneys for court employee Karen Golinski.

One of Golinski's lawyers, Jenny Pizer of the gay-rights group Lambda Legal, said Kaplan's response was "something we might have expected from the Bush or Reagan administration, and not from a 'fierce advocate' of LBGT rights," as President Obama has described himself.

The case is one of two in which the Office of Personnel Management has balked at orders by judges on the Ninth U.S. Circuit Court of Appeals to provide coverage to the same-sex spouses of federal employees.

Golinski, a staff attorney at the appeals court's headquarters, married her partner, Amy Cunninghis, after the state Supreme Court legalized same-sex marriage in California in May 2008. The court preserved 18,000 such marriages this May while upholding Proposition 8, the November 2008 ballot measure that undid the earlier ruling.

Golinski applied in September 2008 to include Cunninghis in the family insurance policy, which already covered the couple's 6-year-old son. Court officials refused, citing the Defense of Marriage Act, the 1996 law that bars the federal government from recognizing same-sex marriages.

The appeals court's chief judge, Alex Kozinski, who hears administrative cases involving court staff, ruled in January that the law governing federal employee benefits allows insurance coverage for anyone legally married in her home state. When the Office of Personnel Management disagreed, Kozinski ordered the agency last month to comply.

Another Ninth Circuit judge, Stephen Reinhardt, whose decision to grant family coverage to a gay federal public defender was similarly thwarted, has ordered the defender's office to reimburse the lawyer for the cost of buying insurance for his husband.

Kaplan told Golinski's attorneys that the Justice Department had reviewed her case and concluded the Defense of Marriage Act prohibited insurance coverage. Kozinski's order is not binding on the agency, Kaplan said, because he was acting as an administrative hearing officer and not as a judge.

"The administration believes that this law is discriminatory" and supports legislation to grant benefits to federal workers' domestic partners, Kaplan said.

The administration is not sponsoring legislation to repeal the Defense of Marriage Act, however, and is defending the law in a suit by same-sex married couples in Massachusetts.

If the administration continues to deny coverage, Pizer said, Golinski will sue in court.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/12/18/MNSN1B6ISS.DTL&tsp=1#ixzz0a744xPux

[grahamhgreen]

1. One more turn of the screw...

[QC]

2. How very, very hopeful and changealicious! n/t

[Name removed]

4. Deleted message

Message removed by moderator. Click here to review the message board rules.

[budkin]

3. Dude, who the fuck IS Obama?

There's gotta be some logical explanation for this... right??

[saracat]

6. The same guy who is supporting a deal against choice.Civil Rights aren't high on this WH Agenda

[QC]

7. What is high on his agenda? (Other than serving the corporate interests, of course.) n/t

[Name removed]

12. Deleted sub-thread

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[ClarkUSA]

56. Ask Bernie Sanders. He's been busy working with Pres. Obama on passing HCR.

Bernie Sanders on Dean: "I have to deal with the reality, being a Congress member...":
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=433&topic_id=69439&mesg_id=69439

Bernie on Countdown, "We are working with the WH to make this bill better...":
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=433&topic_id=69408&mesg_id=69408

Ask Andy Stern, too:

"SEIU's Andy Stern: Don't Kill the Bill. Fix It."
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=433x71483

[Name removed]

11. Deleted message

Message removed by moderator. Click here to review the message board rules.

[IndianaGreen]

8. Obama is BFFE with 'cured' ex-gay Donnie McClurkin

and had Rick "execute Ugandan gays" Warren to give the invocation at his inaugural

[Name removed]

15. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Kitsune]

13. A bigot, plain and simple.

At this point there really is no other way to explain his actions on the civil rights issue of this generation. There is no reason for this Bushian dismissal of due process and the judicial system than for the simple fact that he doesn't believe in equality for LGBT Americans.

The irony would be hilarious if I wasn't so pissed off.

[Freddie Stubbs]

14. When he ran for President, he said that he was opposed to same-sex marriage

He is the man we elected.

[ruggerson]

16. Whatever his feelings are, he is supposed to obey a ruling from a separate branch of gov't

[ClarkUSA]

21. The highest court in the land is the Supreme Court, not the federal court.

When and if the case reaches the Supreme Court and if a decision is then handed down, that's when the President has to obey that ruling.

[ruggerson]

43. This is a case about the Judiciary

have full authority over its own federal employees. The administration should be respecting the ruling instead of defying it.

And, as noted above, a similar case has resulted in a Federal Judge ruling the pertinent part of DOMA unconstitutional. That should be enough for the DOJ and the WH to stop fighting against those trying to overturn it. Past administrations have used that as a yardstick to cease defending an indefensible statute.

[ClarkUSA]

47. No, it's not. Your rhetoric does not refute the facts I & others have stated in replies 31 and 48.

That's all you've got, eh? Your wishful thinking?

Sad.

[ruggerson]

50. If you don't think this particular case is about the Judiciary

and it's federal employees, then you have zero idea what this is about.

"The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal," wrote Chief Judge Alex Kozinski of the Ninth Circuit of the U.S. Court of Appeals. He gave the Administration 30 days to permit Karen Golinski, a lawyer employed by the Ninth Circuit, to include the woman she married under California law last year on her family health-insurance plan. "Some branch must have the final say on a law's meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise."

The judge sidestepped the constitutional question about gays entirely — and instead (offered) a fiery defense of the rights of the judiciary to manage its own employees


http://www.time.com/time/nation/article/0,8599,1942791,00.html?xid=rss-topstories#ixzz0XvNEPSWm

[ClarkUSA]

53. When it gets to the Supreme Court, let us know. The federal court doesn't get the last say.

:)

[ruggerson]

54. So you can't respond to the point that this was about the separation of powers

and the Judiciary's right to manage its own Federal employees?

[ClarkUSA]

57. Why should I? You're wrong about your basic premise and I responded to that.

ruggerson (1000+ posts) Sat Dec-19-09 12:15 PM
Response to Reply #14

16. Whatever his feelings are, he is supposed to obey a ruling from a separate branch of gov't

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=433&topic_id=73452&mesg_id=74551

:)

[ruggerson]

59. Let's recap

I wrote that this particular case was about a Federal Judge ruling on administrative aspects of the federal Judiciary and their unfettered right (as a separate branch of gov't) to handle their own federal employees.

You responded that that was not what the case was about.

I responded that yes it was and offered you proof:


"The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal," wrote Chief Judge Alex Kozinski of the Ninth Circuit of the U.S. Court of Appeals. He gave the Administration 30 days to permit Karen Golinski, a lawyer employed by the Ninth Circuit, to include the woman she married under California law last year on her family health-insurance plan. "Some branch must have the final say on a law's meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise."

The judge sidestepped the constitutional question about gays entirely — and instead (offered) a fiery defense of the rights of the judiciary to manage its own employees


You then tried to change the subject.

[ClarkUSA]

60. You're trying to change the subject but I was replying to #16. Sorry if you can't accept the truth.

:)

[ruggerson]

62. Apparently what you cannot accept is that the administration is defying a court order

A court order which demands that they comply with a ruling in a Federal Judiciary administrative case.

There is currently no lawsuit, so it is not headed to the SC.

The Obama admin could have easily complied with the order, providing they believed in the separation of powers and taking into consideration the fact that ANOTHER federal judge has already ruled the pertinent part of DOMA unconstitutional.

As noted in the OP:

"One of Golinski's lawyers, Jenny Pizer of the gay-rights group Lambda Legal, said Kaplan's response was "something we might have expected from the Bush or Reagan administration, and not from a 'fierce advocate' of LBGT rights," as President Obama has described himself."

Lambda Legal, if you are unfamiliar with it, is essentially the ACLU for gay rights cases.

[ClarkUSA]

67. Which if appealed, will send it to the Supreme Court, the highest court in the land.

It is normal for the government lawyers to argue the government's side.

[ruggerson]

73. It's not appealable

It was a ruling stemming from an administrative federal judiciary case. There currently is no lawsuit.

As Goldstein 1984 so cogently noted on another discussion of this:

"Regardless of whether the decision of a federal judge ruling in an administrative hearing is an official ruling about the constitutionality of DOMA, or whether such a decision is binding on the Administrative Branch, or whether a decision in the 9th Circuit sets a precedent that must be following in all circuits, the Obama Administration, if it were looking for every opportunity to be an advocate for the GLBT community, could have used this decision to champion change."

And they would have been on very solid legal ground in so doing.

[ClarkUSA]

74. Not yet. If they want to, it's open to them. People do it every year.

I hope they do so.

And I repeat, it is normal for the government lawyers to argue the government's side.

[donco6]

45. LOL!

Really? That's the only time the President has to obey a court ruling?

Interesting.

[QC]

68. Sure, it's a ridiculous argument, but when one is defending the indefensible,

it's necessary to clutch at straws.

[donco6]

69. I think "clinging to stupidity" is closer to the truth.

That doesn't even qualify as a straw.

[QC]

70. Oh well. It's not like he's got anything else to cling to. n/t

[ClarkUSA]

71. Spinning my answer is a tried-and-true MO of those who have no honest reply.

:)

[donco6]

72. So why don't you support your namesake anyway?

Did he change? Or did you?

[Freddie Stubbs]

76. But is wasn't a court ruling

It was a ruling a judge who acting as an administrator. If the judge wants to press the issue, he must take it it court.

[Ildem09]

5. This Homosexual

is sitting out 2010 and 2012 until i see some change

[AuntPatsy]

20. Sitting out an election that would likely result in a repug presidency is like

shooting yourself in the foot and hoping that without proper medical care you will always retain full use of said limb..

Do something more to show your outrage and disqust at the continued illegal acts done by government by denying all of it's citizens equal rights under the law as it stands...

Allowing idiotic republicans a chance to ru in this country even more is more than self defeating, its downright ignorant..

If you are mad, than do something about it, sitting on your but and not voting is counter productive and likely not to win you anything in the end..

But go for it if you honestly care so little for your rights, the simple fact is, the repubs care even less than any political group in this country for your rights..deal with the truth and use your outrage in a more constructive way.

[donco6]

22. It makes no difference whatsoever.

And your thinking that it does is where true ignorance lies.

[AuntPatsy]

38. Now that I refuse to believe, I agree that the real power players

are the ones that make the rules at present but I also believe that there are real dem politicians who still care and have no desire to simply tow the provincial political line, I have to believe that as long as we still have some officials who honestly give a shit about doing the job they were elected to do than some day, with enough push from the citizens of this country than perhaps the change we need will have to occur for fear of anarchy from it's own citizens...

Granted we as a whole are being put in a position where it is almost impossible to do anything other than focusing on our own personal woes and or futures but perhaps, just perhaps one day, after enough people have been pushed far enough, then those numbers will rise enough to ensure those now in power will realize that to continue the way they have been will no longer be beneficial not only to their own personal fortunes but beneficial to the future of this country remaining a power house world wide, the truth is, without us, they are nothing and then know it, the problem is, the majority of us have not quite come to that realization yet so remain feeling powerless...

That can change, anything can change if you want it bad enough..the question is, how much are you willing to give up to ensure that change becomes a reality instead of a dream.

[donco6]

41. Patsy, I'm sorry but you sound like Linus and the Great Pumpkin

I'm almost 50 and have been with my partner for 14 years. We don't have forever for this uprising to occur. And after this experience I'm quite certain it will nerver happen.

[AuntPatsy]

46. That made me smile, is it so wrong to believe in the great pumpkin?

The moment we stop dreaming of the great pumpkin and that he might be real is the moment we begin to accept a reality that I have no wish to accept, I am honestly sorry that my government and in retrospect myself have not done you the service of ensuring that you would be treated the same as we have the majority of citizens of this country..

I for one apologize to you and to your partner that I have not worked harder for your rights in the past and the present but I hope that I perhaps can do something for your future, I don't want to give up, nor should you, somewhere out there is a young man or young woman who is facing the same 14 years that you have had to face, lets hope their next 14 years turns out differently?

we need more than hope though, and more than dreams, we need to work to make their next 14 years and your next 14 years a reality that you are seen as no different in regards to citizen equality as I myself am...

[David Zephyr]

24. You pour that patronizing just like syrup.

You might try empathy next time.

[AuntPatsy]

34. Good, get angry, you need it, I need to, we all need to, if we remain

hoping empathy will win in the end we will remain losers for life...

And patronizing is not even close to what I am attempting to impart here, I am trying to get people to stop sitting around crying about what could be, what they want, and hoping to open their eyes to the truth that empathy from me is not going to win them any points, but pushing me to get angry on their behalf or pushing them to get angry on their own behalf just might ensure change gets forced down the throats of those that have no desire for change what so ever...

[ruggerson]

37. Patsy

That's what these multitudes of DOMA related court cases are all about. People getting angry and DOING something about it.

Unfortunately, to date, this Administration is trying to thwart the massive push for marriage equality, instead of trying to help it along.

[ClarkUSA]

40. Thank you. See replies #31 and #48 for unvarnished FACTS as to anti-Obama spin.

It's a shame when folks who have never liked Pres. Obama continue to blame him using false claims.

[David Zephyr]

51. Face palm.

.

[Betty Karlson]

75. Please remember: at some point something snaps inside

At that point people have been so used and abused, worn out, pummeled, pushed around and trodden down, that they simply stop feeling about the matter entirely.

They stop feeling indignation, because all they still have left is a dull feeling of "it's never going to get better".

They'll sit it out, because sitting it out is the easiest way to avoid more dull pain, more disappointment, more lost hope.

Do you think gay people feel any better now that the administration that discriminates is headed by an African-American who promised "change"? They don't care who heads that administration! They just want a change of policy!

If you care about them, make the policy change. If you don't care about them, don't ask them to care about you either!

[Starry Messenger]

9. Hmm.

I seem to recall about a year ago exactly we had all kinds of experts on gay rights in GDP telling members here that things like this wouldn't happen. Where did they all go?

[QC]

17. Maybe the message discipline team reassigned those experts. n/t

[Starry Messenger]

31. I see one is still on the case.

Let's see, last year he compared Rick Warren at the Inauguration with Middle East peace talks. Which is wonderfully inept in light of the fact that we just sent missiles into Yemen.

[ruggerson]

33. Very interesting

Wonder how he feels now that Warren has been exposed as deeply involved in the Ugandan fiasco.

8088993, This reaching out never would have happened without PEOTUS Obama.
Posted by ClarkUSA on Wed Jan-14-09 02:04 PM

It's kinda like the Middle East peace talks. You've got to have a facilitator of dialogue between two opposing forces

[Starry Messenger]

35. I'm sure there's some excuse.

And you know how biased those gay Ugandans are.

[ruggerson]

39. even the dead ones are biased I hear

n/t

[Forkboy]

10. Kick for that fierce advocate!

[AuntPatsy]

18. I agree, she should sue, as should anyone being denied the same

rights that all american citizens are subject too.....way past time that this country is not force fed thousands of like law suits.

[treestar]

19. This is a legal issue and one would have to read the briefs and

understand the entire case before making judgments.

This is a court case and the final court opinion will be the law.

The government always defends whatever position favors the government, no matter what the issue. The lawyer for the plaintiff or the other side argues the opposite.

Attempts to use this kind of thing to stir people up are wrong. If you hope this couple wins the case, fine. But it is normal government procedure for the government lawyers to argue the government's side.

[donco6]

23. A judge's ruling IS a court opinion.

And when the government loses and gets ruled against, the normal procedure is to comply with the ruling. Obama just chooses to ignore it. He's no friend of gays in any sense of the word.

[treestar]

28. It's not fair to conclude Obama is no friend to gays

The judge's ruling can be appealed, reconsidered, etc.

If you want to insist Obama is no friend to gays, this is not a good example to use. Find something better.

but in fact Obama has said more than any US president that is favorable to gays.

[ruggerson]

30. Actions speak louder than words

The administration could have written and taken down to the Hill for sponsorship bills overturning DOMA and DADT.

They haven't.

[donco6]

36. Do not presume to tell me who my friends are.

You know nothing of it.

Further, there would be no reason to appeal if his admin simply followed the ruling.

And ANYone can flavor words with milk and honey while they pick your pocket and stab you in the back.

[treestar]

58. you know what I meant

I was echoing the earlier poster's phrase.

[Sebastian Doyle]

44. Obama said a lot of things

but his actions aren't agreeing with his words.

[Bluebear]

48. Donnie McClurkin? Rick Warren? Vic Fehrenbach? Dan Choi?

[Sapphocrat]

66. T.D. Jakes? Kirbyjon Caldwell?

Nah, listing them all would take the rest of the day. I'll just leave folks with my favorite song of 2008, "Ballad of the Fierce Advocate (a.k.a. The Why Are You Gays So Ungrateful Blues)":

http://news.lavenderliberal.com/wp-content/uploads/2008/11/obama-prop-8.mp3

[Forkboy]

49. "but in fact Obama has said more than any US president that is favorable to gays."

Says a lot about the previous ones.

[ruggerson]

25. The judge HAS ruled

and another CA Federal Judge has ruled in a similar case that a section of DOMA is unconstitutional.

In the past, administration lawyers - when they are sympathetic to the plaintiff, have stopped defending laws after a lower court Judge has ruled them unconstitutional.

In these two cases, the Obama admin is refusing to comply with court rulings from federal justices.

That raises very serious questions of separation of powers.

[treestar]

29. I doubt that, but the issues are complicated

There will be questions of federal versus state power, the Supremacy Clause is bound to be an issue here. Other issues could affect the federal government's power versus that of the state's too, so there could be more at issue here, and a precedent that the federal government has to follow a state's laws might be at stake.

In short, this stuff is too complicated, if you are bound and determined to think Obama is working against gay rights, find something more direct. Being against gay marriage is much better. Just rake him over the coals for that.

[ruggerson]

32. These cracks in the wall

all over the country are part and parcel of the move for marriage equality.

If the administration was sympathetic to gay couples and wanted DOMA overturned as they SAY they do:

A) they now have a legitimate excuse to stop defending DOMA as a Federal Judge has ruled parts of it unconstitutional

B) They should obey Federal judge's orders as they pertain to the right of the Judiciary branch vs. the Executive

C) they should introduce legislation repealing DOMA.

What you're missing here is that this latest move, while only one case, is part of a pattern of hostility towards marriage equality across the country.

[treestar]

61. Here is all there is of the actual case that I can find on the internet

http://www.ca9.uscourts.gov/datastore/opinions/2009/11/25/09-80173o.pdf
http://www.ce9.uscourts.gov/articlefiles/Jan13_2009_USCA9_EDR_Order.pdf

The government barely seems to be involved yet. It appears to be an ex parte proceeding. The full court does not seem to be on it. The government doesn't seem to have filed a brief yet or to have advanced its arguments.

"The denial occurred when the Director of the Administrative Office of the United States Courts refused to certify Golinski's identification of her spouse as family, because he believed the identification was barred by the Defense of Marriage Act 1 USC 7. DOMA provides that 'when interpreting federal law, the term "marriage" means only a legal union between one man and one woman . . '

Judge does not agree with this and makes some good arguments that the DOMA should not preclude the Ninth Circuit Judiciary from covering its employees spouses regardless of gender. But the government only seems to be trying to follow the law as it sees the law to be; you don't have to agree with DOMA to agree it has the force of law.

The government seems not to have appealed the order, either, and Golinski gets an award for back pay for the 11 months in between the two orders.

This could turn out to favor Golinski in the end.

[ruggerson]

63. Here is a little background on the case that preceded this one

http://latimesblogs.latimes.com/lanow/2009/02/gay-marriage.html

Past administrations have often defended laws that they disagreed with, but have give themselves an out, once a lower court has ruled a statute unconstitutional. In other words, at that point, there is plenty of precedent to stop defending it.

Add to that Kozinski's separation of powers argument in this administrative case and there is no reason why the DOJ supposedly had to counsel OPM to deny the Chief Judge's order.

[treestar]

64. I'd rather see the opinions themselves

Media coverage of legal cases is awful.

The Golinski case seems to have gone no higher than an Administrator just following the bureaucracy.

[ruggerson]

65. My understanding is that the admin route is the only one

available to federal judiciary employees. They cannot sue the federal government.

These decisions from these two justices are as binding as the administration argues them to be. There is plenty of legal ground to claim they are binding and for them to comply. They actively chose not to.

[David Zephyr]

26. Our fierce advocate.

K&R.

[Name removed]

27. Deleted sub-thread

Sub-thread removed by moderator. Click here to review the message board rules.

[Vidar]

42. Obama always does what the insurance masters tell him.

[LittleBlue]

52. Change my ass! More like Bush Lite.

How much more can this man alienate his own base?

[madmx19790]

55. so much for that "change"