Saturday, July 31, 2010


A staff attorney for the Ninth Circuit wants health insurance for her wife

Once upon a time I was employed in the land title business. That is the industry which pays particular detail to the history of land transactions. Examining title to real property involves researching deeds, mortgages, deeds of trust, judgments, lawsuits, tax liens, mechanic liens, maps, plats, and surveys.

Keeping track of who is who requires a system of classification. How did the deed grant the property to the Buyer. That is another way of saying what type of legal relationship is being recognized. There are tenants in common with or without the right of survivorship. There are joint tenants with the right of survivorship, which is the way many married persons take title. Some jurisdictions recognize a tenancy called the entireties, an estate reserved exclusively for married couples. Unmarried women taking title were often referred to by the  expression feme sole. Today, especially in tenancies in common, unmarried persons are referred to as a single man, or a single woman. Why not just say a single person?

An expression we seldom see, except in the dusty files from gone by centuries, is et ux, the abbreviation of the Latin term et uxor, which means "and wife." If you happen across a deed using the term feme sole then you may run across deeds to a certain man et ux. Women in America were treated as personal property when they married. The woman's name on the deed was superfluous as all the legal right and interest to the title ran to the husband. Essentially, women lost their rights when they wed.  The legal doctrine by which husbands subsumed the legal rights of their wives was called coverture.

Since et ux is so seldom used to reference wife in contemporary parlance my eye was immediately drawn to In the Matter of Karen Golinski, et ux, a case being reported on the home page of the Ninth Circuit Court of Appeals.

Federal employee Karen Golinski has a wife. Ms. Golinski has been denied a benefit of federal employment, health insurance for her wife, because she is married to a woman. The Chief Judge of the Ninth Circuit, Alex Kozinski, is handling the case. Ms. Golinski is a staff attorney working for the Ninth Circuit Court of Appeals.

Chief Judge Alex Kozinski of the Ninth Circuit

Judge Kozinski has already ruled that denial of the health insurance benefits violates the Ninth Circuit Court of Appeals guarantee of equal employment opportunity. That order said:
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.

The Director of the Administrative Office of the United States Courts denied Ms. Golinski claim because he considered the Defense of Marriage Act (DOMA) 1 U.S.C. § 7 prohibits identifying a spouse as a person of the same gender. Since Ms. Golinski's wife was not her spouse under federal law, she was not entitled to add her wife under the definition of family required under 5 U.S.C. § 8903(1), which is part of the Federal Employee Health Benefits Act (FEHBA).

Judge Kozinski found the Director's reading of the statutes was not the only plausible reading of FEHBA. Kozinski relied upon a broader construction of the FEHBA which permits the Office of Personnel Management (OPM) to contract for coverage exceeding the minimum statutory requirements. This allows OPM to contract for family coverage which meets the definition of family under state law, but would not meet the definition imposed by DOMA. Kozinski says:

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.
Kozinski supports his decision by reliance on Romer v. Evans, 241 U.S. 620 (1996). In that case the Supreme Court said that an amendment to the Colorado constitution prohibiting civil rights protections for gays and lesbians contravened the United States Constitution.

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.

Note to Kris Kobach, what say you to the context and circumstances surrounding enactment of SB 1070?

Back to Golinski. Judge Kozinski stares into the process of ruling DOMA unconstitutional and does what all good jurists do. Judge Kozinski avoided the constitutional question and harmonized the Defense of Marriage Act (DOMA), 1 U.S.C. § 7; the statutes creating the benefit program at issue, the Federal Employees Health Benefits Program (FEHBP), 5 U.S.C. §§ 8901 et seq.; and the Ninth Circuit Court of Appeals' commitment to equal employment opportunity.

Judge Kozinski's order in this case set forth the following six provisions.

  1. 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.

  2. 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.

  3. 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. 

  4. 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.

  5. 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.

  6. 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.
 The Judge's order was appealed and Ms. Golinski filed suit. See, Golinski v. U.S. Office of Personnel Management, No. 10-cv-00257-SBA (N.D. Cal. filed Jan. 20, 2010).

The parties to the appeal filed a motion to stay the appeal pending resolution of Federal District Court Case. Judge Kozinski granted that motion. Stay tuned this case is worth watching.