Federal Attorney Fights for Gay Marriage Rights

By Lisa Leff
|  Friday, Dec 17, 2010  |  Updated 6:30 PM PDT
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'One World, One Heart, One Pride'

Mike Anderson

Tim Chiu (left), his daughter Lauren Chiu and Lars Haaland attend a celebration at the Billy De Frank LGBT Community Center in San Jose, Calif., after federal judge Vaughn Walker overturned Proposition 8 on Aug. 4, 2010. Chiu and Haaland were married in 2008.

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Lawyer Karen Golinski has spent the past 19 years working for a federal appeals court based in San Francisco.

So finding herself seated in court Friday as the plaintiff in a lawsuit seeking health insurance coverage for her same-sex partner was disturbing and strange, she said.

"I never thought I'd be in this position," Golinski said. "I certainly never expected the government to throw their full weight behind hurting my family."

Golinski, 48, is suing the Office of Personnel Management and its openly gay director, John Berry, over its refusal to authorize the coverage.

The office has argued that the federal Defense of Marriage Act bars the government from recognizing same-sex unions.

Golinski works as a staff attorney for the 9th U.S. Circuit Court of Appeals, and her boss, Chief Judge Alex Kozinski, has twice ordered the office to allow her to add her wife of almost two-and-half years to her employer-sponsored family health plan.

Denying Golinski's wife, Amy Cunninghis, the benefits afforded other spouses of federal employees is discriminatory, Kozinski said.

Although a ruling in Golinski's favor would probably apply only to her situation, the case is being closely watched by gay rights advocates. Like recent legal challenges to the military ban on openly gay service members, it has put the administration of President Barack Obama in the position of defending a law with which the president has said he disagrees and wants repealed.

U.S. District Court Judge Jeffrey White did not issue an immediate ruling in Golinski's case. He pointed out twice during the hearing that Obama called the Defense of Marriage Act "abhorrent" before he was elected. Why, the judge asked, was the Department of Justice defending the 1996 law?

Justice trial attorney Christopher Hall said government lawyers determined "there is a reasonable basis on which to defend the constitutionality" of the act, despite the administration's opposition to it.

When Congress enacted the law, states were just beginning to consider whether to legalize same-sex marriage, and lawmakers wanted to maintain the status quo in terms of federal recognition, Hall said.

"We are 15 years into the debate, but the debate is not over yet," Hall said.

White seemed skeptical.

"Even if the applications, clarifications and interpretations of a law are discriminatory, as long as it is consistent, that's OK. Is that your argument?" the judge asked.

The judge also expressed doubt about whether he has authority to order the Office of Personnel Management to extend health benefits to Golinski's wife.

The government is arguing that Kozinski's rulings were made in his role as Golinski's boss, and in compliance with a 9th Circuit policy prohibiting discrimination against gay workers.

Both are trumped by the Defense of Marriage Act and the executive branch's power to implement federal personnel policies, Hall said.

White said he needed more time to study the "important and difficult legal problems, not to mention administration conundrum" involved in the case.

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