Lesbian benefits battle goes to high court

SAN FRANCISCO -- As do a lot of newlyweds, Karen Golinski was eager to enjoy the financial fruits of marriage. Within weeks of her wedding, she applied to add her spouse to her employer-sponsored health care plan, a move that would save the couple thousands of dollars a year.

Her ordinarily routine request still is being debated more than four years later, and by the likes of former attorneys general, a slew of senators, the Obama administration and, possibly this week, the U.S. Supreme Court.

Because Golinski is married to another woman and works for the U.S. government, her claim for benefits has morphed into a multi-layered legal challenge to a 1996 law that prohibits the federal government from recognizing unions such as hers.

The high court has scheduled a closed-door conference for Friday to review Golinski's case and four others that also seek to overturn the Defense of Marriage Act, overwhelmingly approved by Congress and signed by President Bill Clinton.

The purpose of the meeting is to decide which, if any, to put on the court's schedule for arguments next year.

The outcome carries economic and social consequences for gay, lesbian and bisexual couples, who now are unable to access Social Security survivor benefits, file joint income taxes, inherit a deceased spouse's pension or obtain family health insurance.

The other plaintiffs in the cases pending before the court include the state of Massachusetts, 13 couples and five widows and widowers.

"It's pretty monumental and it's an honor," said Golinski, a staff lawyer for the federal appeals court based in San Francisco who married her partner of 23 years, Amy Cunninghis, during the brief 2008 window when same-sex marriages were legal in California.

The federal trial courts that heard the cases all ruled the act violates the civil rights of legally married gays and lesbians. Two appellate courts agreed, making it highly likely the high court will agree to hear at least one of the appeals, Lambda Legal executive director Jon Davidson said.

"I don't think we've ever had an occasion where the Supreme Court has had so many gay rights cases knocking at its door," said Davidson, whose gay legal advocacy group represents Golinski. "That in and of itself shows how far we've come."

The Supreme Court also is scheduled to discuss Friday whether it should take two more long-simmering cases dealing with relationship recognition for same-sex couples.

One is an appeal of two lower court rulings that struck down California's voter-approved ban on same-sex marriage. The other is a challenge to an Arizona law that made state employees in same-sex relationships ineligible for domestic partner benefits.

The last time the court confronted a gay rights case was in 2010, when the justices voted 5-4 to let stand lower court rulings holding that a California law school could deny recognition to a Christian student group that does not allow gay members.

Brigham Young University law professor Lynn Wardle, who testified before Congress when lawmakers were considering the Defense of Marriage Act 16 years ago, said he still thinks the law passes constitutional muster.

At the same time, he said, the gay rights landscape has shifted radically since 1996, President Obama being the first sitting president to declare support for same-sex marriage, and four state ballot measures being decided in favor of gay rights activists.

"This is the gay moment, momentum is building," Wardle said. "The politics are profound, and politics influence what the court does."

Citing the act, known as DOMA, the Office of Personnel Management, the federal government's human relations arm, initially denied Golinski's attempt to enroll Cunninghis in the medical coverage she had selected for herself and the couple's son.

Golinski knew her employer, the 9th U.S. Circuit Court of Appeals, had a policy prohibiting discrimination against gay workers, so she filed an employee grievance and won a hearing before the court's dispute resolution officer, Chief Judge Alex Kozinski.

Kozinski ruled that Golinski was entitled to full spousal benefits, but federal officials ordered Golinski's insurer not to process her application, prompting the chief judge to issue a scathing opinion on her behalf.

After the government refused to budge, Golinski sued in January 2010.

The time before that was the court's landmark 2003 ruling in Lawrence v. Texas, which declared state anti-sodomy laws to be an unconstitutional violation of personal privacy.

"Congress has the power to define for itself domestic relationships, including defining relationships for purposes of federal programs," Wardle said.

For Golinski and Cunninghis, getting this far has been a long, sometimes frustrating and sometimes heartening journey.

"I got a phone call from OPM in Washington, D.C., asking me to confirm that Amy Cunninghis was female, and I said, `Yes, she is,' and they said, `We won't be able to add her to your health plan," Golinski recalled.

As a lawyer for the court, she felt awkward about pursuing the issue, but she was also angry. Lambda Legal and a San Francisco law firm offered to represent her.

"I had been working for the courts since 1990, and I feel, like everybody, I work hard and I'm a valuable employee, and I'm not getting paid the same amount if I have to pay for a whole separate plan for Amy," she said. "It was really hurting our family."

The couple had joked about whether they "would make a federal case" out of their situation. Cunninghis noted that their genders would not have been an issue had Golinski worked in the private sector or in state or local government where domestic partnerships are offered.

Because of DOMA, she said, "we don't get access to a whole slew of benefits."

The Department of Justice originally opposed Golinski in court but changed course last year after President Barack Obama and Attorney General Eric Holder said they would no longer defend the law.

Republican members of the Bipartisan Legal Advisory Group, which oversees legal activities of the House of Representatives, voted to hire an outside lawyer first to back the act in Golinski's case and the four others, and to then appeal the rulings on its unconstitutionality.

U.S. District Judge Jeffrey White handed Cunninghis and Golinski an unequivocal victory in February, finding that anti-gay sentiment motivated Congress to pass DOMA.

In ordering the government to allow Golinski to enroll her wife in a family health plan, White rejected all of the House group's arguments, including that the law was necessary to foster stable unions among men and women.

A group of 10 U.S. senators who voted for DOMA in 1996 have filed a brief with the Supreme Court angrily denouncing the judge's opinion and urging the high court to overturn it.

"It is one thing for the District Court to conclude that traditional moral views, standing alone, do not justify the enactment of DOMA; it is quite another to find that legislators who hold or express such moral views somehow taint the constitutionality of the statute," they said.

Former U.S. Attorneys General John Ashcroft and Edwin Meese also weighed in, telling the court that Obama had failed in his duty and set a dangerous precedent by declining to defend DOMA.

As a result of White's ruling, Cunninghis was allowed in March to be added to Golinski's health plan.

Golinski so far is the only gay American who has been allowed to begin receiving federal benefits while DOMA remains in effect, a development that could be reversed if the Supreme Court upholds DOMA.

Until then, the couple said they are going to trust that the tide of history is moving toward gay rights.

"It seems so simple to us: just put me on the family health plan," Cunninghis said. "It's much bigger than that obviously, yet it isn't."