9th Circuit, Alex Kozinski, Benchslaps, Constitutional Law, Federal Government, Federal Judges, Gay, Gay Marriage, Lesbians, Quote of the Day

Quote of the Day: A Reverse Benchslap… of Chief Judge Kozinski?

Judge Jeffrey White

At the administrative appeal from the denial of benefits, Chief Judge Kozinski found that the FEHB statute confers on the OPM [Office of Personnel Management] the discretion to extend health benefits to same-sex couples by interpreting the terms “family members” and “member of the family” to set a floor, not a ceiling, to coverage eligibility…. The Court finds this reasoning unpersuasive.

— Judge Jeffrey S. White, in his recent order in Golinski v. Office of Personnel Management, which concluded that Section 3 of the Defense of Marriage Act is unconstitutional.

(Context and commentary, after the jump.)

Yesterday Judge White, a Bush II appointee to the Northern District of California, issued his ruling in the Golinski case. Here’s the report of Chris Geidner of Metro Weekly:

[T]he U.S. District Court for the Northern District of California issued its order finding that Section 3 of the Defense of Marriage Act — the federal definition of marriage — is unconstitutional in Golinski v. Office of Personnel Management, Karen Golinski’s challenge to the denial of her request for equal health insurance benefits for her wife.

Golinski, a federal court employee, brought suit after her request was denied. She is represented by Lambda Legal Defense and Education Fund. Because President Obama and the Department of Justice have stopped defending Section 3 of DOMA in court challenges, the Bipartisan Legal Advisory Group — led by House Republican leadership — had opposed Golinski’s request in court.

In part, U.S. District Court Judge Jeffrey S. White today found that Section 3 of DOMA violates the equal protection rights of Golinski, finding that heightened scrutiny applies — as urged by the DOJ — and noting that it might not even pass rational basis — the lowest — legal scrutiny….

Now, on to the quotation of the day. Why was Judge White (N.D. Cal.) in the position of evaluating the reasoning of Chief Judge Kozinski (9th Cir.)?

Golinski had a somewhat unusual procedural posture. Karen Golinski, a staff attorney for the Ninth Circuit, tried to place her wife, Amy Cunninghis (don’t read that too fast), on Golinski’s employer-provided health insurance. The Administrative Office of the United States Courts (“AO”) refused. Golinski filed an administrative complaint about the denial, claiming discrimination, and that complaint was adjudicated by Chief Judge Kozinski, sitting in an administrative capacity as arbiter of the Judicial Council. As explained in Judge White’s order (citations omitted):

Chief Judge Kozinski found that the denial of health benefits was based solely on the grounds of sex and sexual orientation, in direct violation of the EDR Plan’s non-discrimination provision covering Ninth Circuit employees. Chief Judge Kozinski found that, regardless of the language in DOMA, the OPM had the discretion to extend health benefits to Ms. Golinski’s same-sex spouse by interpreting the terms “family members” and “member of the family” to set a floor, not a ceiling, to coverage eligibility.

Chief Judge Alex Kozinski

Alas, this did not result in Golinski’s spouse securing health coverage, since the OPM refused to comply with the administrative order. After additional proceedings, Chief Judge Kozinski “authorized Ms. Golinski to pursue any action she deemed fit against the OPM, including filing a mandamus action in the district court.” So that’s how the case wound up before Judge White — who ultimately ruled in favor of Karen Golinski as well, but not on the basis of Judge Kozinski’s reasoning, which Judge White deemed “unpersuasive.” (At least Judge White was kind enough to relegate this to a footnote, namely, footnote 3 of the order.)

It’s not often that you see a reverse benchslap, i.e., a lower-court judge dissing a judge on a higher tribunal. As Judge Mark Holmes — a former Kozinski clerk, by the way — recently observed, “[o]f all the routines in judicial gymnastics, few have a higher degree of difficulty than the reverse benchslap.”

Of course, Chief Judge Kozinski and his colleagues on the Ninth Circuit are not potted plants. They have feelings that can get hurt — and hands that can benchslap. The next time the Ninth Circuit reverses Judge White, they should issue a one-line per curiam opinion: “The Court finds this reasoning unpersuasive.”

Golinski v. Office of Personnel Management [U.S. District Court for the Northern District of California]
BREAKING: DOMA’s Federal Definition of Marriage Unconstitutional, Judge Rules in Golinski Case
[Poliglot / Metro Weekly]

Earlier: Quote of the Day: It Makes the Arabian Double-Pike Mandamus Look Easy

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