The Department of Justice filed its response today to an inquiry from the U.S. District Court for the Northern District of California about the case of Karen Golinski, a federal court employee in California who sued so that her wife could receive spousal health benefits.
The filing notes that DOJ believes that Section 3 of the Defense of Marriage Act is unconstitutional and that Golinski's case could be impacted by that decision, and, accordingly, has included this case on a list of cases sent to Speaker John Boehner (R-Ohio) to "provide Congress a full and fair opportunity to participate in the litigation." DOJ lawyers also maintain, however, that the decision about whether it will defend Section 3 of DOMA does not resolve Golinski's case for two reasons: (1) because she is seeking to enforce an unenforceable order and (2) because DOMA remains in effect at this time.
DOJ maintains that the administrative order that Golinski is seeking to have the court enforce is unenforceable. The case, primarily, is an executive-judicial branch disagreement over whether the Employee Dispute Resolution Plan used by the U.S. Court of Appeals for the Ninth Circuit can result in an order -- such as it issued here -- that must be enforced by the Office of Personnel Management (OPM).
As the attorneys for the Justice Department wrote, "[T]he authority to administer the Federal Employees Health Benefits Program ('FEHBP') has been statutorily conferred upon OPM under the Federal Employees Health Benefits Act of 1959 ('FEHBA'); that authority encompasses all Federal employees, including those of the Judicial Branch." The chief judge in the Ninth Circuit, Alex Kozinski, disagrees and issued repeated administrative orders over the past two years as part of the EDR Plan concluding so.
Although that is the primary dispute in the case, an underlying issue addressed in Kozinski's administrative orders is whether the Defense of Marriage Act prohibits Golinski from receiving benefits for her wife under the FEHBP. OPM maintains it does; Kozinski disagrees.
OPM -- Kozinski's order notwithstanding -- refused to give Golinski the benefits and, under the EDR Plan, Golinski was permitted to file a lawsuit seeking enforcement of Kozinski's administrative order. She, with the aid of Lambda Legal, did so on Jan. 20, 2010.
When the Department of Justice announced that it and the president had concluded that Section 3 of DOMA is unconstitutional on Feb. 23, Attorney General Eric Holder also stated in the letter describing the decision that DOJ would countinue enforcing DOMA until the law is repealed by Congress or "the judicial branch renders a definitive verdict against the law's constitutionality."
The judge hearing Golinski's case, U.S. District Court Judge Jeffrey White, asked, among other questions, "How does the Executive reconcile the position that it intends to enforce a statute that it has affirmatively declared to be unconstitutional and deemed inappropriate to defend?"
In today's filing, DOJ attorneys answered as follows:
As noted above, while the President has determined that the Executive Branch will not defend the constitutionality of Section 3 of DOMA, he has instructed agencies to continue to comply with Section 3 "consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality." Letter at 5. As the Attorney General has stated, "[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised." Id. Moreover, through the Attorney General, the Executive Branch has notified Congress pursuant to 28 U.S.C. 530D of the President's determination that Section 3 of DOMA is unconstitutional and his decision not to defend the statute. Letter at 1. The Attorney General indicated to Congress that "[o]ur attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases," including this one. Id. at 6. See also Letter from Ronald Weich, Assistant Attorney General, U.S. Dep't of Justice, to the Hon. John A. Boehner, Speaker, U.S. House of Representatives, Feb. 25, 2011 (Attached at Tab 1).
In other words, the administration may have concluded that the law is unconstitutional but it will continue to enforce the law until the appellate process has completed itself and a final judgment is reached. Additionally, DOJ has including Golinski's case on its list of cases that have been or could be impacted by the Feb. 23 decision about Section 3 of DOMA and, accordingly, is notifying Congress of the decision so that they may choose to defend the law if they wish to do so in Golinski's case. Finally, the DOMA decision notwithstanding, the executive branch still maintains that -- at least as to the FEHBP -- the judicial branch does not have the authority to direct OPM, in the judicial branch's capacity as employer, as to how to implement benefit programs.