Karen Golinski never meant to become one of the headline names in the fight to overturn the Defense of Marriage Act (DOMA). All she wanted to do was to secure health care coverage for her legal spouse.
That was three years ago. Today, Golinski is preparing for a December 16 hearing before the federal district court for Northern California in one of the key cases challenging the constitutionality of DOMA.
“I had honestly no idea [the case] would become what it became over the last three years,” Golinski told this reporter in a recent interview.
Golinski v. U.S. Office of Personnel Management is considered important enough to draw participation from the U.S. House’s Bipartisan Legal Advisory Group (BLAG) and could well end up before the U.S. Supreme Court, even if other important DOMA challenges fail.
DOMA, enacted in 1996, prohibits any federal entity from recognizing a marriage license granted to a same-sex couple.
An attorney herself, Golinski, 49, has worked for the United States 9th Circuit U.S. Court of Appeals for 19 years.
She grew up in New York State and went to college and law school there, before moving to California in 1988. In 1989, she met Amy Cunninghis, another East Coast transplant, who had grown up in New Jersey and gone to college in Connecticut before heading west.
The two began a committed relationship shortly after they met, and established home in San Francisco. They married in August 2008, during the brief window when same-sex couples could legally obtain marriage licenses in California. At the time, the two had been together for 18 years and had a five-year-old son. Their son was put on Golinski’s health plan.
Cunninghis is a contract employee with a non-profit group and does not get health benefits through her employer. The family has had to pay out of pocket for Cunninghis’ coverage—coverage “inferior” to the Blue Cross/Blue Shield group plan that Golinski and their son have, Golinski said.
But Golinski assumed that, once she and Cunninghis were married, Cunninghis could obtain health coverage through Golinski’s employer—a benefit routinely provided to the spouses of heterosexual married employees of the court.
But the court’s administrative office rejected Golinski’s application to get health coverage for her spouse, saying that DOMA prevented the court from recognizing them as married.
“Everybody wants to be able to protect their family members. That’s what this is about,” Golinski explained. “It’s about equal treatment. I’m not different than any other person who’s married.”
Golinski filed an internal complaint with the court, which has an employment dispute resolution policy that prohibits discrimination based on both sex and sexual orientation. She remembers saying to her attorney at the time (Jennifer Pizer at Lambda Legal), “This is just going to be a little private complaint within the court. It’s never going to see the light of day.”
Golinski recalls Pizer laughed and replied, “These things have a way of taking on a life of their own.”
And so it did.
First, 9th Circuit Chief Justice Alex Kozinski, as head of administration for the circuit, ruled in January 2009 that the court’s administrative office should reverse its original decision. But then, in a stroke of irony, the U.S. Office of Personnel Management, headed by openly gay appointee John Berry, instructed Blue Cross/Blue Shield to deny Golinski’s claim. Despite what various Republican presidential hopefuls have been claiming—that President Obama refuses to enforce DOMA—the administration signaled its intent to continue enforcing DOMA until such time as it is declared unconstitutional or repealed.
Kozinski, a well-known defender of civil rights, ordered OPM to stop interfering “in any way” with Golinski’s ability to obtain coverage for her spouse. But OPM pushed back and reiterated, through a press release, that DOMA prevented the agency from heeding Kozinski’s order.
And thus Golinski, with the help of Lambda, found herself filing a lawsuit to seek a preliminary injunction to force OPM to heed Kozinski’s order.
That lawsuit failed. Judge Jeffrey White, of the federal district court for Northern California, denied the injunction request in March 2011, saying that OPM had a procedural duty to enforce DOMA that trumped the 9th Circuit’s agreement to provide benefits to Golinski.
At the same time, however, he stated that DOMA was not directly implicated in this specific phase of the case and that Golinski “has a clear right to relief.”
So Golinski and Lambda filed an amended lawsuit to add claims challenging DOMA’s constitutionality.
By then, the Obama administration had made clear that, while it would enforce DOMA, it would not defend DOMA in court because the administration considers DOMA to be unconstitutional.
And that’s when the House’s Bipartisan Legal Advisory Group (BLAG) filed a motion to intervene in the case and defend DOMA by seeking to have the lawsuit dismissed.
U.S. Attorney General Eric Holder filed a brief in July opposing BLAG’s motion to dismiss Golinski’s case. He stated that the administration believes Section 3 of DOMA is unconstitutional, and he reiterated that the administration would no longer defend it.
Section 3 states that the federal government will not, for any federal purposes, recognize any marriage of a same-sex couple.
“That was really huge,” Golinski said. “The federal government was weighing in for the first time on my side as opposed to fighting me.”
But the case has been “a big, long roller coaster ride” for her and her family.
“I think the hardest thing has been the ups and downs along the way,” Golinski said.
People have congratulated them when there has been a positive ruling, she said, “and I have to tell them, ‘That’s very kind, but . . . Amy still doesn’t have benefits.’”
Golinski said she feels “incredibly fortunate” to have a “dream team” of legal representation from both Lambda Legal and the San Francisco law firm Morrison and Foerster.
Being an attorney herself, though, has helped her better understand her case, even if it “adds another cook to the pot.”
“I feel like I get the easy part,” Golinski said. “I just get to participate, without having to put all the sweat into having to come up with the beautiful work that [my attorneys] have done for me.”
But the case has still taken up a lot of her and Cunninghis’ time and energy, she said. When a brief is due to be filed, she will spend lunch hours or evenings reviewing it.
“My son’s heard a lot of ‘I’m working on my case’ for the last few years, as I tuck him in,” she explained.
She also said that press coverage about the case has been “a little bit overwhelming, because we’re pretty private people.”
Still, she asserted, “It’s really important, so we’re also proud that we can help educate people around the discrimination.”
And both co-workers and neighbors have been “unconditionally supportive,” she said.
Neighbors, she said, have told them, “You’re the quintessential family—and it’s really unfair that Amy’s not being covered.”
On December 16, Judge White will hear both BLAG’s motion to dismiss the case and Golinski’s motion for summary judgment on the constitutionality of DOMA.
Even if the judge rules in her favor after the hearing, Golinski said she expects BLAG will appeal further.
“No matter what the result,” she said, “I feel we did the right thing by trying to fight this.
“Again, it’s just basic fairness. I just want to be treated like all my other colleagues. And they want me to be treated the same way, too.”