The availability of health insurance for oneself and one’s family is a valuable benefit of employment, and denial of such a benefit on account of sex and sexual orientation violates the terms of the EEO plan that covers Golinski." See, Amended Order, November 19, 2009.
Adopting the broader construction of the statute not only harmonizes the statutory scheme with our EEO plan, it avoids difficult constitutional issues. If I were to interpret the FEHBA as excluding same-sex spouses, I would first have to decide whether such an exclusion furthers a legitimate governmental end. Because mere moral disapproval of homosexual conduct isn’t such an end, the answer to this question is at least doubtful.
Describing the type of inquiry required to sift through the facts and weigh the circumstances to determine constitutionality of the involved statutes, Kozinski relied on the case of Reitman v. Mulkey, 387 U.S. 369 (1967). In that case a racially neutral housing law in California was struck down because on the basis of the context and circumstances surrounding the statute's enactment it had the design and intent of weakening the state's anti-discrimination laws.
Judge Kozinski's order in this case set forth the following six provisions.
This matter is referred to the Appellate Commissioner for a hearing on Ms. Golinski’s claim under the Back Pay Act. Within 70 days, he shall submit a report and recommendations on the factual issues listed above.
Within 30 days, the Administrative Office of the United States Courts shall re-submit Ms. Golinski’s Health Benefits Election form 2809 to her designated insurer, the Blue Cross and Blue Shield Service Benefit Plan. The AO shall process any future benefit forms without regard to the sex of the listed spouse.
Within 30 days, the Office of Personnel Management shall rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit Plan and any other plan that Ms. Golinski’s wife is not eligible to be enrolled as her spouse under the terms of the Federal Employees Health Benefits Program because of her sex or sexual orientation, and that the plans would violate their contracts with OPM by enrolling Ms. Golinski’s wife as a beneficiary.
The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal. Specifically, OPM shall not advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit Plan, that providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law. Nor shall OPM interfere in any way with the delivery of health benefits to Ms. Golinski’s wife on the basis of her sex or sexual orientation.
The Blue Cross and Blue Shield Service Benefit Plan shall enroll Ms. Golinski’s wife within 30 days of receipt of the appropriate forms from the Administrative Office of the United States Courts without regard to her sex or sexual orientation.
The Judge authorized Ms. Golinski to take appropriate action to secure compliance with this order, such as by petition for enforcement or mandamus. I trust, however, that such action will not be necessary.