More DOMA drama - Government continues enforcement, Republicans plan to defend it in court
 

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posted Friday, March 4, 2011 - Volume 39 Issue 09

More DOMA drama - Government continues enforcement, Republicans plan to defend it in court
by Mike Andrew - SGN Staff Writer

Less than a week after U.S. Attorney General Eric Holder announced that President Obama had ordered him not to continue to defend the constitutionality of DOMA, the Department of Justice told a federal court that it will still enforce the law.

Holder issued a statement on February 23 saying that the president had concluded that DOMA was unconstitutional and that federal attorneys should no longer defend it in court.

Nevertheless, Justice Department attorneys filed papers in federal court on February 28 saying that federal employee Karen Golinski may not add her wife to her health insurance policy.

In a further complication, Republican leaders in the U.S. House said they would reveal their plans to defend the constitutionality of DOMA on March 4.

Golinski vs. OPM
Karen Golinski, a lawyer who works for the 9th Circuit Court of Appeals in San Francisco, asked in 2008 to add her wife to her family health insurance plan.

The Chief Judge of the 9th Circuit, Alex Kozinski, acting as a court administrator, ordered Golinski's insurance carrier to provide the benefits.

However, the U.S. Office of Personnel Management instructed the insurance carrier not to comply because DOMA prohibits the federal government from recognizing Golinski's same-sex marriage.

Golinski then sued OPM to enforce Kozinski's order.

In its February 28 filing, the Justice Department stated that President Obama told executive agencies to enforce DOMA until Congress repealed it or a federal court struck it down - even though the administration would no longer defend its constitutionality in court.

Federal District Court Judge Jeffrey White need not decide the law's constitutionality to resolve the Golinski case, Justice Department attorneys said.

According to the Justice Department's filing, Kozinski's order is not enforceable through the kind of lawsuit Golinski filed.

Jennifer Pizer, one of Golinski's attorneys, said it would have been much more 'helpful and consistent' with President Obama's views on DOMA if the Justice Department had taken the position that Golinski could enroll her wife in the family health plan.

'That is the correct answer in this case,' Pizer said.

Republicans
Meanwhile, House Majority Leader Eric Cantor said on February 28 that Speaker John Boehner would reveal his own plan for defending the constitutionality of DOMA.

'I stand by [Boehner's] commitment to make that happen,' Cantor (R-Va.) said at a press conference.

Cantor promised Boehner would outline his plans in detail on March 4.

When pressed on what House Republicans planned to do, Cantor was evasive.

'I think you'll see that on Friday,' Cantor said.

In a taped interview released the same day, Boehner (R-OH) said the Republican-controlled House could appoint a special counsel to defend DOMA, a suggestion first made by former U.S. Senator and now Republican presidential candidate Rick Santorum.

'It's an option being considered,' Boehner said during an appearance on The Christian Broadcasting Network. 'I'd be very surprised if the House didn't decide that they were going to defend law.'

Boehner added that his office is currently researching several legal options and seeking feedback from other Republicans to determine how to proceed.

'I'm really disappointed in the president and the Department of Justice in the fact that they're not going to defend a law that Congress passed overwhelmingly. It's their responsibility to do that,' Boehner said.

'But if the president won't lead, if the president won't defend DOMA, then you'll see the House of Representatives defend our actions in passing a bill that frankly passed overwhelmingly.'

LGBT reaction
LGBT activists immediately accused Republican leaders of hypocrisy.

'Republican leaders have been claiming to want to focus on the economy, yet their insertion into this case would represent a hypocritical departure from that position,' said HRC spokesperson Michael Cole-Schwartz.

Anticipating that Republicans will mount a rigorous defense of DOMA, HRC has taken steps to fight back, Cole-Schwartz said.

The group has sent e-mail alerts to thousands of its supporters, launched a petition seeking to block the House from intervening, and has been consulting with Congressional allies to develop a strategy.

'We're all prepared for [Republicans] to intervene in some way,' Cole-Schwartz said. 'The question is how do they do it, how do they roll it out, and what kind of political hay they want to make of it?'



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