DOMA Shift Leaves Government Out of Excuses, Lambda Legal, Morrison & Foerster Inform Judge

(San Francisco, March 3, 2011) — Lambda Legal and Morrison & Foerster LLP today told a federal judge that government attorneys have shown they have no further arguments and therefore no further legal barrier exists to a married lesbian federal employee receiving spousal health benefits already provided to her heterosexual co-workers. U.S. Department of Justice (DOJ) attorneys had argued that, among other reasons, the so-called Defense of Marriage Act (DOMA) prohibits the employer-provided medical insurance that Karen Golinski had requested for her spouse, Amy Cunninghis. Lambda Legal and Morrison & Foerster represent Golinski, a 19-year-employee of the U.S. Ninth Circuit Court of Appeals.

Today's brief was filed in response to a filing on Monday by DOJ, answering four questions posed by U.S. District Judge Jeffrey White. White issued the questions shortly after last week's announcement that President Obama and Attorney General Eric Holder have concluded that Section 3 of DOMA is unconstitutional and inappropriate to defend. Government attorneys answered on Monday that while the executive branch will no longer defend Section 3 of DOMA, it will still enforce the law until it is ordered not to do so by a final judicial order, or Congress repeals the statute.

"What's most striking about the government's answers this week is our shared need for the court to strike DOMA," said Jennifer C. Pizer, National Marriage Project for Lambda Legal. "DOJ referred Judge White back to its prior mistaken claim that Karen is not entitled to sue, while admitting the discrimination against her is unconstitutional and saying it must continue until a court orders it to stop or Congress repeals DOMA. We didn't press this case as a challenge to DOMA, but the government seems to believe it has to discriminate and has forced the issue. With the constitutional problem now plain as day, we hope the court can rule very, very soon. It's long past time for Karen and her family to be equally protected."

Government attorneys also claim that the Office of Personnel Management (OPM), part of the executive branch of the federal government, has authority over all federal employees but need not participate in hearings of complaints filed by employees of the judiciary, or comply with orders that give them a remedy. Golinski's case requests an order directing OPM to comply with rulings issued by Ninth Circuit Chief Judge Alex Kozinski in Golinski's favor.

"Sovereign immunity doesn't apply if the government is doing something unconstitutional," said Rita Lin, Associate Attorney with Morrison & Foerster. "The Executive has admitted that DOMA is unconstitutional and that it has been violating Karen's right to equal protection under the U.S. Constitution. There is absolutely no remaining reason to justify OPM's continued defiance of Judge Kozinski's orders."

Lambda Legal's Jennifer C. Pizer and Morrison & Foerster's Rita Lin, James McGuire, Gregory Dresser and Aaron Jones represent Karen Golinski.

The case is Golinski v. United States Office of Personnel Management and John Berry, Director of the U.S. Office of Personnel Management, in his official capacity.

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