- The Washington Times - Monday, December 21, 2009

The federal Defense of Marriage Act means the U.S. government cannot grant spousal benefits to federal workers in same-sex marriages, a government lawyer said in a claim likely to be repeated when gay marriage comes to the District.

The U.S. Office of Personnel Management (OPM) cannot authorize health care coverage for the same-sex spouse of a San Francisco federal court employee even though a judge has ordered the agency to do, said Elaine Kaplan, OPM’s general counsel, said in a statement issued Friday.

The Department of Justice has determined that the 1996 Defense of Marriage Act supersedes a recent ruling by 9th U.S. Circuit Court of Appeals Chief Judge Alex Kozinski.

DOMA, as the law is known, defines marriage under federal law as the union of a man and a woman and thus two people of the same sex cannot be married.

“As the president has explained, the administration believes that this law is discriminatory and needs to be repealed by Congress,” Ms. Kaplan said.

The dispute involves Karen Golinski, a staff lawyer at the 9th Circuit’s San Francisco headquarters. Earlier this year and again last month, Judge Kozinski ruled that Ms. Golinski is entitled to enroll her partner in her employer-sponsored health plan because the court has a policy prohibiting discrimination against gay workers.

Because the judge was acting in an administrative role as an employer instead of in a court case, his order “does not supersede our obligation to comply with existing law because it is not binding on OPM,” Ms. Kaplan said.

Ms. Golinski’s lawyer, Jennifer Pizer of the gay rights group Lambda Legal, disagreed that Judge Kozinski’s determination was any less authoritative because it arose out of an employee benefits dispute.

“The question we have for OPM and DOJ is: ‘Are you really saying that employees of these federal agencies have greater authority, a greater capacity to interpret the requirements of federal law than a duly appointed … judge who is also the chief judge of the circuit?’ ” Ms. Pizer said.

Although Judge Kozinski’s ruling applied only to the Golinski situation, it has received much attention because President Obama has pledged to champion gay rights issues and John Berry, OPM director, is the highest-ranking gay official in the administration.

On Friday, Mayor Adrian M. Fenty signed a bill recognizing gay marriages in Washington. It will take effect if, as expected, the Democrat-led Congress does not veto it in 30 days. If Washingtonians, many of whom work for the federal government or are in relationships with people who do, this issue is likely to be raised in every federal agency.

Despite OPM’s resistance, the situation could soon be resolved in the gay couple’s favor.

Congress is considering a bill that would extend health and retirement benefits to the same-sex spouses and domestic partners of government employees. Mr. Berry has said he expects to come up for a vote next year.

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