LGBT POV

A federal judge in California on Wednesday  illustrated just how complicated the US legal system can get trying to maintain separate health benefits packages for gay couples that conflict with the federal Defense of Marriage Act.

Last year when same sex marriage was legal in California – federal public defender Brad Levenson married his longtime partner, Tony Sears and tried to put Sears on his healthcare plan.

When the public defender’s office refused – Levenson complained to the Ninth U.S. Circuit Court of Appeals – which oversees complaints from federal public defenders.

Judge Stephen Reinhardt (who is married to ACLU/LA legend Ramona Ripston) ruled that the government had violated Levenson’s constitutional rights and the court’s own non-discrimination rules and ordered that Sears be added to Levenson’s plan.

However – the U.S. Office of Personnel Management intervened and also refused – citing the Defense of Marriage Act. The director of that office is John Berry – an openly gay man.

On Wednesday, Judge Reinhardt reiterated his position that DOMA is unconstitutional but modified his order – telling the government to cover the extra cost Levenson had to pay for private insurance.

Reinhardt wrote:

“The denial of federal benefits to same-sex spouses cannot be justified simply by a distaste for or disapproval of same-sex marriage or a desire to deprive same-sex spouses of benefits available to other spouses.”

Levenson told the Los Angeles Times:

“Considering that the federal government won’t give Tony the equal benefits package of other spouses, we are very pleased with this decision. Is it equal treatment? No. Is it a good remedy? Yes. And we are appreciative of the judge’s order.”

Jennifer Pizer of Lambda Legal told the Associated Press that the ruling could help pass openly gay Congressmember Tammy Baldwin’s federal Domestic Partnership Benefits bill:

“Health insurance for one’s family members is an important part of compensation and if some employees are denied that valuable compensation because of their sexual orientation, it’s unequal pay for equal work.”

Ironically – on the same day that Reinhardt issued his ruling, Baldwin’s federal Domestic Partnership Benefits bill passed a key congressional committee.

Baldwin’s office issued this press release:

“Congresswoman Tammy Baldwin lauded an historic vote in a House committee that moves the nation a step closer to equality for lesbian, gay, bisexual, and transgender (LGBT) Americans.

The House Oversight and Government Reform Committee today passed the Domestic Partners Benefits and Obligations Act (H.R. 2517), authored by Congresswoman Baldwin (D-WI).  Under the legislation, same-sex domestic partners of federal employees living together in a committed relationship would be eligible for health benefits, long-term care, Family and Medical Leave, and federal retirement benefits, among others. The domestic partners of federal employees would also be subject to the same responsibilities that apply to the spouses of federal employees, such as anti-nepotism rules and financial disclosure requirements.

“Today’s actions mark another significant step in our march toward LGBT equality,” said Congresswoman Baldwin, Co-Chair of the House LGBT Equality Caucus.  “Our movement is gaining momentum around the country and Congress is following the will of the people.  Today is a day to celebrate yet another milestone and recognize anew that ‘the arc of the moral universe is long, but it bends toward justice.’”

The bill now moves to the full House for consideration.  In a ceremony at the White House in June, President Obama voiced his strong support for the measure.”

OMP’s John Berry of the office that intervened in Leveonson’s complaint, also issued a press release:

“Washington, DC – Earlier today, the House Committee on Oversight and Government Management approved H.R. 2517, the Domestic Partnership Benefits and Obligations Act of 2009, sponsored by Representative Tammy Baldwin.  The measure extends benefits to the domestic partners of Federal employees, including participation in the Federal Employee Health Benefits (FEHB) Program, retirement and survivor benefits, relocation reimbursements and other benefits currently offered to spouses of Federal employees.  The Committee also adopted an amendment offered by Chairman Edolphus Towns that made changes to the legislation to ensure proper implementation.

“I want to commend the Committee for approving the Domestic Partnership Benefits Act,” said U.S. Office of Personnel Management Director John Berry.  “This is an essential recruitment tool as we seek the best and the brightest to tackle the many challenges America faces.”

Berry also said:  “This is a positive step that helps the federal government to better compete with other employers for top talent.  President Obama has stated clearly that this is an issue of equality.  But just as important, youth today, LGBT or not, see this benefit as a litmus test for determining high quality employers.  The Administration looks forward to continuing its work with lawmakers as the House and the Senate move toward enactment of this bill.”

OPM oversees human resources and benefits policies for over 1.9 million Federal civil servants and 2.5 million retirees and survivor annuitants.”

Meanwhile, Charles Stewart, the openly gay Legislative Director for California Rep. Diane Watson, was in the hearing room as the bill was being debated. He sent me these emails:

Email One, which refers to Obama nominee David Huebner, an openly gay attorney from LA  who is going through confirmation hearings to be ambassador to Samoa and New Zealand and Huebner’s partner of 20 years, Dr. Duane McWaine:

“Today at 2pm the Domestic Partner Benefits & Obligations Act is up for mark-up in the House Oversight & Government Reform Committee, and opposition from Republicans in the form of several hostile & frivolous motions (like moving that the same benefits be extended to heterosexual domestic partners, even though they have the option & full protections of marriage) is expected, but passage to the House floor isn’t deemed to be in jeopardy.

That’s directly relevant to David & Duane because the previous openly gay ambassador, Michael Guest (appointed by Bush, but he was a career diplomat who had, supposedly, simply never “concealed” his gayness while rising & getting clearances in the Foreign Service, so it only became known that he was “openly gay” after his Senate confirmation), resigned in 2007 citing the lack of access to spousal benefits for his life partner.

I’ll be there.”

Email Two, in which Charles talks about how hurtful GOP remarks were to his (straight Catholic) boss and must have been to (lesbian) Tammy Baldwin:

“The Oversight & Government Reform Committee is still debating domestic partner benefits for federal employees. This is Tammy Baldwin’s bill, and some of the comments must feel very hurtful coming from colleagues with whom she works daily.

A Republican amendment to apply all DOMA standards to domestic partnership benefits was just defeated. And they are now arguing about how much longer committee votes will be drawn out tonight. It’s almost unprecedented for the committee to hold a session for this long and the members are tired and getting openly testy!

California’s Rep. Issa is leading the opposition. All votes will be recorded, and some of the most vigorous arguments in support are being put forth by African American members (who are staying for the votes despite a simultaneous Congressional Black Caucus Forum “A Discussion on Race & Politics” where they were expected hours ago), whereas none of the opponents of this bill are people of color (unless you consider Issa such, who is Lebanese and the richest member of the House).– a fact that will, no doubt, go un-noticed by the angry among the No on 8 movement!

No LGBT media or advocates present. My boss raised a point of order which led to a loud exchange across the aisle when someone passed out in mid-meeting to each of the members a flyer announcing that the U.S. Catholic Bishops oppose this domestic partners bill (Diane is a life-long Roman Catholic and was a member of California’s Senate when a San Diego Legislator was threatened with denial of communion for supporting abortion rights in Sacramento. She was deeply offended).”

In my humble opinion, I wish Reps. Baldwin and Watson had issued statements about being offended. The right wing GOP and Religious Right seem to have a well-publicized field day being offended – often forcing everyone else to be on the defensive. I don’t know if taking the “higher road” always works in this heated, hateful culture. On the other hand, they do have more dignity.

UPDATE: LAMBDA LEGAL JUST ISSUED THIS PRESS RELEASE ABOUT SPOUSAL BENEFITS FOR KAREN GOLINSKI:

Chief Judge of Ninth Circuit Orders Spousal Benefits for Lesbian Court Employee

Karen Golinski to receive back pay and health benefits for wife

(San Francisco, November 18, 2009) —Chief Judge Alex Kozinski of the U.S.

9th Circuit Court of Appeals today affirmed that a married lesbian court

employee is entitled to receive health benefits for her wife, just like

married heterosexual court workers, and that the Court has final authority

to end benefits discrimination against its employees.

Lambda Legal and the law firm of Morrison & Foerster represented Karen

Golinski, a judicial attorney at the court, in her administrative grievance

against her employer.  In January, 2009, Chief Judge Kozinski ruled that

Golinski was entitled to spousal benefits for her wife, Amy Cunninghis.

The federal Office of Personal Management – an agency of the Executive

Branch – responded that the law governing federal employees’ health

insurance and the Defense of Marriage Act (DOMA) prevent coverage for the

spouses of gay and lesbian federal employees, and instructed Golinski’s

insurer not to enroll Cunninghis.

Kozinski ruled today that “for the discrimination she’s suffered in the

past, I can offer Ms. Golinski only money.  The remedy that’s “appropriate”

for the future, however, is enrollment of Ms. Golinski’s wife into the same

program an opposite-sex spouse would enjoy.”  He went on to say that “In

effect, OPM has claimed that its interpretations of the rights and benefits

of judicial employees are entitled to supremacy over those of the

Judiciary.  That’s incorrect, and the Executive must henceforth respect the

Judiciary’s interpretation of the laws applicable to judicial employees.”

“We’re pleased that Chief Judge Kozinski once again did the right thing and

upheld the right of every court employee to equal pay for equal work,” said

Lambda Legal Senior Counsel Jennifer C. Pizer.  ”This decision is a

compelling blend of sound legal analysis and honest, real world

observation: withholding health insurance for an employee’s same-sex spouse

is discrimination without justification, and the true, fair remedy for that

discrimination is just to recognize gay employees’ family relationships and

provide the insurance all workers need, regardless of their sexual

orientation.”

“I’m ecstatic and relieved,” said Karen Golinski.  ”This insurance is

critical for the security of my family.  I’m so grateful to work for an

institution that is committed to fair treatment of all of its workers.”

Golinski’s grievance was an internal Court procedure and does not set

binding legal precedent.

James McGuire, Rita Lin and Sara Griswold of the law firm Morrison &

Foerster LLP were co-counsel on the case.