DOJ notified OPM in a letter dated March 9, to abide by a lower court ruling in February that found section 3 of DOMA unconstitutional. The letter became public on Monday. (via Metro Weekly):
A March 9 letter to Blue Cross Blue Shield, from Shirley Patterson, assistant director of federal employee insurance operations for the Office of Personnel Management, said that “OPM hereby withdraws any outstanding directive regarding the enrollment of Ms. Golinski’s wife, Amy C. Cunninghis, in her family health benefits plan.”DOJ has also requested an en banc ruling by an 11-judge panel:
OPM previously said the wife of Karen Golinski, a federal court employee in California, could not be covered.
On Monday, DOJ filed two motions in the appeal before the Ninth Circuit, both of which were agreed to by Golinski. The first asks the court to expedite the appeal and the other seeks to skip over the first stage of appellate review, in which a three-judge panel considers the case, in favor of moving directly to en banc consideration by an 11-judge panel of the court.
WHY THE REQUEST: In 1990, the Ninth Circuit had decided that discriminatory government treatment based on sexual orientation -- brought as a claim of "equal protection" violations under the Fourteenth or Fifth amendments -- is subjected to the lowest form of scrutiny, rational basis review. That case, High Tech Gays v. Defense Indus. Sec. Clearance Office, was decided four years after the Supreme Court upheld the constitutionality of sodomy laws in Bowers v. Hardwick.
Twenty-two years later, and several Supreme Court cases -- most notably the 1996 case of Romer v. Evans and the 2003 case overturning Bowers, Lawrence v. Texas -- call into question the ongoing validity of High Tech Gays. DOJ argues that heightened scrutiny should apply to such claims.Although Golinski's wife may ultimately lose her spousal insurance coverage when the case is finally ruled on by the U.S. Supreme Court, should it reach them, the Obama DOJ has affirmed that she may keep her coverage for the time being. Snooki Boehner's BLAG has not yet filed a response, but have indicated they they intend to.
Now, my question to all those activists who are pushing for the president to come out with an immediate, full-on, unequivocal, verbal statement that he supports marriage equality, at the risk of losing the election, is, what more do you need?
The Administration has ordered OPM to honor spousal benefits for the wife of a lesbian employee. They have requested that Golinski vs. OPM be expedited, which means it could be ruled on before the November election. You are free to demand a clearer statement of support from the Big O, but my advice to you is, don't hold your breath.