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Kenito
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Joined: Wed Feb 11, 2009 1:30 am
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Location: Rosarito, Baja California, MX
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 Obama HIts New Low? Obama Administration Hits New Low
By Ann Rostow Published: December 24, 2009 San Francisco Bay Times
There is a story breaking this week that should have triggered the kind of outrage we saw in the gay community back when Obama first allowed his Justice Department to write an anti-gay brief in support of the Defense of Marriage Act. Remember that? It was last June, I think, and to my surprise the entire LGBT cohort bellowed as one and caused a stink that filtered right under the door to the Oval Office. Before we knew it, the White House had made all kinds of friendly overtures and the next time we read a DOMA brief, its tone was soft as a feather pillow.
It’s time we screamed again, even louder than before. This time, the White House has refused a court order to provide spousal benefits to the wife of Ninth Circuit staff attorney Karen Golinski. The order came from the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, Alex Kozinski, acting in his role as an arbiter of workplace issues in the judiciary under his authority. But make no mistake: Kozinski’s word is law here, and he has determined that the Defense of Marriage Act has nothing to do with equal employment benefits.
In Kozinski’s view, the Defense of Marriage Act might well prohibit federal recognition of same-sex marriage, but the law does not prohibit giving workplace benefits to same-sex couples, whether married or partnered. Ninth circuit policy, on the other hand, prohibits discrimination on the basis of sexual orientation. Given this quandary, Kozinski insists that Golinski should be able to insure her family.
Kozinski’s first decision was blithely ignored. He then wrote a follow-up order, noting that he had the authority to make the final determination in this matter. Stunningly, the Obama administration has now given him the finger again. The Office of Personnel Management (OPM), ironically run by the highest ranking gay official in the administration, announced that Kozinski was not acting as a real judge, but simply as some kind of functionary that can, and will be, dismissed. In their opinion, the Defense of Marriage Act still trumps Kozinski’s ruling. But hello? They are bureaucrats and Kozinski’s a federal appellate judge!
Talk about separation of powers. Interpreting the law is clearly a function of the judicial branch, and yet here we have the executive branch cavalierly waving its hand in the air without the slightest constitutional authority to do so.
And here is the worst part of this story. Let me backtrack to the infamous defense of the Defense of Marriage Act in federal court. After our communal outcry, a chastened Obama administration claimed to oppose DOMA as a matter of policy but insisted they were forced to support any and all federal laws when challenged. This is not completely true, but gay groups were somewhat mollified by the low-key briefs in favor of DOMA that followed that horrible anti-gay thing they first submitted. Obama and company were still defending the Act, but not very robustly.
But what the hell are they doing here? They have no “obligation” to spit in the face of a Ninth Circuit judge! They claim to be nonplussed by this pesky law, DOMA, that doesn’t allow them to treat gay couples on par with others. But here they have a court order telling them to cough up the health insurance and they flatly refuse. Here they are going out of their way, not just to straddle the fence, but to jump over to the bad side and throw a parade. As for this guy, John Berry, the oft-trumpeted highest-ranking gay man in the administration, I say put a straight person in the post with a modicum of courage and integrity. Who is this joker? I don’t think every gay or lesbian official has to carry the ball for the whole movement, but here’s a situation where anyone worth his or her salt would resign.
Meanwhile, the story has some side plots. Congress is considering a law that would give equal benefits to federal employees, and I am guessing this measure will eventually pass, someday, maybe next year, whenever. But so what? For the moment, it’s just one of many items on the GLBT congressional agenda, and it doesn’t mean that the administration gets to shelve current disputes until they are rendered moot by legislative developments down the road.
Second, Golinski was not the only Ninth Circuit employee with a spouse. In a parallel case, another Ninth Circuit judge, Stephen Reinhardt, went further than Kozinski, ruling that the Defense of Marriage Act was actually unconstitutional. Interestingly, his attempt to enforce his ruling was not as confrontational as Kozinski’s. Instead of simply issuing a flat order to comply. Reinhardt told the government to pay out the cash equivalent of the employment benefits, a remedy that as far as I know has not been challenged.
When Obama first defended DOMA, I went into denial, assuming that this nasty piece of legal reasoning fell through the cracks and that the President was too busy with the economy to notice what the minions in his Justice Department were doing with their hundreds of cases.
My theory was somewhat confirmed by the change in attitude we saw in the subsequent DOMA briefs. But yet, that nagging voice asked, why was he defending DOMA at all? I had to accept the fact that Obama was going to keep his distance from the fight for gay equality, presumably because he had to save his political capital for health care or something. But still, I thought, even if we are a low priority, surely Obama wasn’t just lying through his teeth when he told us he would be our “fierce advocate”?
And now? This may seem like a minor incident, a workplace glitch for one individual federal employee and a difference of opinion between government officials. But it is exactly because this is a minor matter that the Obama administration’s position is so outrageous. No one cares! There is no political capital at stake. The right wing wouldn’t think twice if the OPM complied with the order of a federal judge. There is simply no logical reason to deny these benefits, particularly when the administration is on record as being in favor of equal benefits for gay employees. So what’s the explanation? It looks to me as if this is a deliberate and thoughtful attempt by the Obama administration to slow the pace of gay rights in the courts and in general, a calculated move to keep us not just on the back burner, but off the stove entirely.
On Tuesday, Chief Judge Kozinski announced that the Office of Personnel Management had missed the deadline for filing an appeal in the case. (Blue Cross Blue Shield filed on a timely basis.) Presumably, since the OPM does not recognize Kozinski’s authority to begin with, they just didn’t bother to comply with any part of the procedure.
But their failure to appeal means that Karen Golinski will now file her own lawsuit, asking a federal court to enforce Judge Kozinski’s decision. That suit will likely put the Defense of Marriage Act up for review before the Ninth Circuit in a context which seems favorable to those of us who would like to see DOMA find its way to the dustbin of history.
Can’t Think of Headline
Sorry for the lengthy rant above, but I was all hot under the collar last night when I wrote it. Now, since it represents over 1,200 words of this column, it’s there to stay. And it is a very important subject of course. It’s just that I don’t care that much this morning because I’m tired and mentally lazy. Hell, I can’t even come up with a headline.
Mel, my wife, went skydiving! I just about died watching her plummet out of the upper reaches of the atmosphere, but miraculously we both survived the foolhardy escapade. It occurred to me that I would not be able to sue for wrongful death here in Texas, where our marriage is not recognized.
Fortunately, the injustice was moot.
Mexico City seems to have legalized same-sex marriage, and I read that Portugal is contemplating a similar move, which would place its laws on par with neighboring Spain. If we could just convince Andorra to follow suit, we’d be able to cross the entire Iberian Peninsula off our “to do” list.
Oh. I just checked. Gibraltar and a small part of France are also Iberian, so the challenge expands.
I should also report that the global gay community got its panties in a twist over a BBC web poll, which asked: “Do you think gays should be executed?” The survey accompanied a news item on what Rachel Maddow calls the “kill the gays bill” in Uganda, and BBC tried to explain that the question was a legitimate effort to examine this disturbing piece of legislation.
I gather they eventually apologized for the incomprehensible implication that executing gays is a debatable matter of public policy. Yes or no Readers: Should you let your child microwave a live kitten? Your answers in the next issue. By the way, Rachel reports that the President of Uganda has pledged to veto the kill the gays bill, which would be delightfully nice of him.
That’s about it for the news filler, so I’m afraid I’m headed back to the Ninth Circuit for some updates on the Olson/Boies case. You know, that case is actually called Perry v Schwarzenegger, but Number One, I hate typing “Schwarzenegger,” and Number Two, if I used the correct name I would have to add a descriptive phrase, as in: “…Perry v Schwarzenegger, the federal lawsuit challenging Prop 8…” On the other hand, everyone knows the “Olson/Boies” case, so that’s my preferred nomenclature.
Must See TV
You will be happy to learn that the Prop 8 trial, scheduled to start Jan. 11, will likely be televised. The U.S. Court of Appeals for the Ninth Circuit issued a ruling last week authorizing TV coverage of certain federal trials, and before you could say “lights, camera, action” a coalition for a large number of media outlets asked Judge Walker for permission to shoot the proceedings. Personally, I’m stocking up on popcorn and beer. Maybe a bottle of Gruner Veltliner.
Alert! I just saw one of those cable TV ads with clients who “rule their kingdoms” and speak in 14th century idioms. I like these ads, but there is one that features a woman who uses the word “amuse” twice in one short commercial. That ruins the whole spot for me. “These lemurs amuse me,” she begins. “But I get bored with their antics.” Then at the end, she decides to watch “those who would forsake their dignity for fame” and settles in to watch Housewives of Atlanta or something like that, ending: “You may amuse me wenches.” But for the repeated word, it would be perfect, amusing even.
In other Prop 8 trial news, the U.S. Court of Appeals for the Ninth Circuit is considering whether or not to revisit a recent ruling in the case. The other day, a three-judge panel agreed that the bad guys should not be required to turn over their internal Prop 8 campaign documents to the good guys. We, the good guys, wanted the material in order to prove that the proposition was grounded in homophobia. But the court decided that such discovery would violate the Prop 8 campaign’s freedom of political association, and further, the panel did not think the materials were indispensable to the plaintiffs.
One member of the Ninth Circuit has asked the court to take a vote on whether to rehear this issue “en banc,” i.e.: with a larger panel of judges. Briefs are due Thursday, and I am not sure when the court will decide. I’m also not sure whether or not the review would delay the trial.
Well at any rate, all will be revealed in due time. And meanwhile, Christmas is here! Yay!
—arostow@aol.com
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